Opinion
No. 12 Civ. 1393 (ARR) (VMS)
07-17-2015
LIDYA MARIA RADIN, Plaintiff, v. DOCTOR TUN, DOCTORS AND STAFF AT RIKER'S ISLAND PRISON MENTAL HEALTH DEPARTMENT, DAPHNE HERARD, JESIKA ASARO, ROSE CHAN, MARIANNE CAPONE, LENA BLAU, BOB ARKOW, HAROLD CHARLES, MARGARITA GORMUS, MALANIE SPRITZ, LISA CHOLEFF, BRENDA R. HARRIS, ALKESH NAVIN PATEL, RAUL CALICDAN, RUKHASANA RASHEED, ESSAM YOUSEF, SHAHEENA AHMED, DR. MORALES, DR. GLICK, DR. GOME, DR. ROBERT LAMPSKE, PHD BRYAN FALLON, M.D. RAYMOND CLOVIS, PHYSICIAN ASSISTANT CHARLES, ELMHURST HOSPITAL, its doctors and staff, PATRICIA GUZOKWSKI, LCSW, DR. MICHELLE KANALY, DR. MICHAEL MANASHEROV, J. LOWNEY, New York City Department of Probations Officer, S. SELTZER, Supervisor, OFFICER RUBINKOWSKI, Probations Office at Riker's Island, VINCENT N. SCHIRALDI, Commissioner of Probation, DANIEL CARROW, ALBERT EINSTEIN COLLEGE OF MEDICINE OF YESHIVA UNIVERSITY, M.D. JAMES DAVID (JIMMY), MARTIN BOCKSTEIN, JUDGE ROBERT D. PATTERSON, JR., JUDGE GUIDO CALABRESI, JUDGE JAMES A. RESTANI, U.S. MARSHAL JAMES HOWARD, U.S. MARSHAL IMMANUEL MISCHA WARTOFSKY, U.S. MARSHAL SHERI ROBINSON, and JOHN DOES 1-100, Defendants.
REPORT AND RECOMMENDATION VERA M. SCANLON, United States Magistrate Judge :
Before the Court on referral from the Honorable Allyne R. Ross are Defendants' three motions to dismiss the Corrected Second Amended Complaint of Plaintiff Lidya Radin ("Plaintiff" or "Ms. Radin") pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6). For the reasons stated herein, this Court respectfully recommends that Defendants' motions be granted and that the Corrected Second Amended Complaint be dismissed in its entirety.
I. BACKGROUND
On March 15, 2012, Ms. Radin commenced this action by filing her original pleading. Compl., ECF No. 1. Ms. Radin thereafter filed a First Amended Complaint, ECF No. 7; a Second Amended Complaint, ECF No. 83; and a Corrected Second Amended Complaint, ECF No. 91. The procedural history and content of Ms. Radin's prior pleadings are described in detail in this Court's Order and Memorandum denying without prejudice Ms. Radin's motion for the Court to request pro bono counsel. Order at 2-9, ECF No. 124.
In short, the Honorable John Gleeson, to whom this case was then assigned, warned Ms. Radin that her original Complaint was "confusing," "unclear," "meandering and contains an abundance of extraneous information which makes it impossible to tell what these defendants are alleged to have done wrong." Order at 2, ECF No. 3. Judge Gleeson directed Ms. Radin to file an amended pleading that would comply with Rule 8(a) and "set forth the specific factual allegations to support her claims against all named defendants." Id. at 3. Ms. Radin then filed her First Amended Complaint, which narrowed her claims to allegations of defamation only. Am. Compl. at 1, ECF No. 7. Thereafter, Ms. Radin requested to file a second amended pleading, and this Court granted Ms. Radin multiple extensions of time in which to file her Second Amended Complaint. See 4/17/2013 Order, ECF; 4/30/2013 Order, ECF; 11/12/2013 Scheduling Order, ECF; 3/14/2014 Order, ECF; 5/9/2014 Order, ECF. The Second Amended Complaint added and removed certain Defendants, and also added several claims, including claims under 42 U.S.C. § 1983. Sec. Am. Compl. ("Am. Compl. II"), ECF No. 83. Ms. Radin subsequently requested to file a corrected copy of her Second Amended Complaint, to include additional defendants and claims, and the Court allowed her to file this amended pleading. 6/5/2014 Scheduling Order, ECF. The Court warned Ms. Radin that "[n]o further amendments or corrections will be allowed absent exigent circumstances." Id. Ms. Radin then filed her Corrected Second Amended Complaint, the operative pleading for purposes of this motion. Corr. Am. Compl. II ("Am. Compl. III"), ECF No. 91.
A. The Named Defendants
The Corrected Second Amended Complaint named the following Defendants:
• Elmhurst Hospital ("Elmhurst");
• the Rikers Island Correctional Facility Mental Health Department ("Rikers MHD");
• certain employees of the New York City Department of Health and Mental Hygiene ("DOHMH"): Dr. Tun, Daphne Herard ("Ms. Herard"), Jesika Asaro ("Ms. Asaro"), Rose Chan ("Ms. Chan"), Marianne Capone ("Ms. Capone"), Lena Blau ("Ms. Blau"), Bob Arkow ("Mr. Arkow"), Harold Charles ("Mr. H. Charles"), Margarita Gormus ("Ms. Gormus"), Malanie Spritz ("Ms. Spritz"), Lisa Choleff ("Ms. Choleff"), Brenda R. Harris ("Ms. Harris"), Dr. Alkesh Navin Patel ("Dr. Patel"), Raul Calicdan ("Mr. Calicdan"), Rukhasana Rasheed ("Ms.
Rasheed"), Essam Yousef ("Mr. Yousef"), Dr. Shaheena Ahmed ("Dr. Ahmed"), Dr. Morales, Dr. Alvin Glick ("Dr. Glick"), Dr. Gome, Dr. Robert Lampske ("Dr. Lampske"), Bryan Fallon, Ph.D. ("Dr. Fallon"), Dr. Raymond Clovis ("Dr. Clovis"), Physician Assistant Charles, Patricia Guzowski ("Ms. Guzowski"), Dr. Michelle Kanaly ("Dr. Kanaly"), and Dr. Michael Manasherov ("Dr. Manasherov");
• The New York City Department of Probation ("DOP") and certain of its employees or former employees: J. Lowney ("Mr. Lowney"), Steve Seltzer ("Mr. Seltzer"), Officer Rubinkowski, and former Commissioner of the DOP Vincent Shiraldi ("Mr. Shiraldi");
• Daniel Carrow ("Mr. Carrow"), an individual who allegedly reported to the DOP;
• Albert Einstein College of Medicine of Yeshiva University ("Albert Einstein") and certain of its employees: Dr. James David ("Dr. David") and Martin Bockstein ("Mr. Bockstein");
• certain federal judges: Judge Robert P. Patterson, Jr. ("Judge Patterson"), Judge Guido Calabresi ("Judge Calabresi"), and Judge Jane A. Restani ("Judge Restani"); and
• certain United States Marshals: Marshal James Howard ("Marshal Howard"), Marshal Immanuel Mischa Wartofsky ("Marshal Wartofsky"), and Marshal Sheri Robinson ("Marshal Robinson"). Am. Compl. III ¶¶ 2-45.
To be clear, Plaintiff named only certain DOHMH employees, and not the DOHMH itself, as a defendant. Plaintiff's failure to name the City of New York (the "City") as a Defendant is discussed infra Section II.B.1.
Plaintiff identifies Mr. H. Charles and Physician Assistant Charles as separate individuals.
According to the City, Ms. Spritz, Ms. Guzowski and Dr. Kanaley were sued and served under incorrect names. City Mem. 1, ECF No. 138. The City states that Ms. Spritz's correct name is Melanie Spritz, Ms. Guzowksi's correct name is Patricia Baric and Dr. Kanaly's correct name is Michelle Kanaley. As the Parties have not stipulated to these corrections, the Court will continue to use the names provided by Plaintiff in the Corrected Second Amended Complaint.
Plaintiff did not identify the DOP as a defendant in the caption of her Corrected Second Amended Complaint, but she named the DOP as a defendant in the text of that pleading. Am. Compl. III ¶ 35. As the City has proceeded as though the DOP were a named defendant, see City Mem. 1 (moving to dismiss on behalf of, inter alia, the DOP), the City and the DOP will not be prejudiced by the Court's also considering the DOP as a named defendant. Whether the DOP is an entity that can be sued is a separate question, addressed below.
Ms. Radin also alleged claims against District Judge Pamela K. Chen and the undersigned, Magistrate Judge Vera M. Scanlon. Am. Compl. III ¶¶ 46-47. These claims were previously dismissed sua sponte by Judge Ross as frivolous because they were "clearly barred by the doctrine of judicial immunity." Order at 2, ECF No. 98.
Plaintiff asserts her claims against each individual defendant in that defendant's personal and professional capacity. Am. Compl. III ¶¶ 2-45.
The following Defendants are represented by the Corporation Counsel of the City of New York: Elmhurst, Rikers MHD, the DOP, Ms. Herard, Ms. Asaro, Ms. Chan, Ms. Capone, Ms. Blau, Mr. Arkow, Mr. H. Charles, Ms. Gormus, Ms. Spritz, Ms. Choleff, Ms. Harris, Mr. Calicdan, Ms. Rasheed, Dr. Glick, Dr. Fallon, Dr. Clovis, Ms. Guzowski, Dr. Kanaly, Dr. Manasherov, Mr. Seltzer, and Mr. Shiraldi. Hereinafter, the Court will refer to these Defendants as the City Defendants. Although not named as defendants, Corporation Counsel also represents the DOHMH and the City.
Defendants Dr. Patel and Dr. Ahmed, psychiatrists at Rikers Island, retained private counsel. They will be referred to as the Psychiatrist Defendants.
Defendants Albert Einstein, Mr. Bockstein and Dr. David are represented by counsel for Albert Einstein and will be referred to as the Einstein Defendants.
Defendants Dr. Tun, Mr. Yousef, Dr. Morales, Dr. Gome, Dr. Lampske, Physician Assistant Charles, Mr. Lowney, Officer Rubinkowski, Mr. Carrow, Judge Patterson, Judge Calabresi, Judge Restani, Marshal Howard, Marshal Wartofsky, and Marshal Robinson have not appeared in this action and are not represented. As discussed below, it does not appear that they were ever served with the summons and complaint as required by Rule 4. They will be referred to as the Non-moving Defendants.
B. Plaintiff's Claims
In her Corrected Second Amended Complaint, Ms. Radin alleged that Defendants violated 42 U.S.C. §§ 1983, 1985, 1986, 1988; 18 U.S.C. §§ 241, 242, 245, 249; 18 U.S.C. § 4; 18 U.S.C. § 1589; and New York Education Law § 6530. Am. Compl. III ¶¶ 50, 53. Ms. Radin also alleged state law claims sounding in negligence, medical malpractice and fraud. Id. ¶¶ 54-56. Furthermore, as discussed infra, Section II.B.8, Ms. Radin alluded in her opposition papers and elsewhere to additional claims she would like to bring.
See Radin v. Albert Einstein Coll. of Med. of Yeshiva Univ., No. 07 Civ. 2868 (DRD) (ES) (D.N.J. Oct. 18, 2007) (Ms. Radin requested to withdraw an incomplete complaint she filed on October 18, 2007 against "Albert Einstein College of Medicine of Yeshiva University, et al.," alleging a claim under 42 U.S.C. § 1983; the request was granted and the case was dismissed).
Ms. Radin alleged that in or around March 2010, the DOHMH "attempted to undertake the psychiatric care of Plaintiff Radin without Plaintiff Radin's consent," which she alleged violated New York Education Law § 6530 and demonstrated negligence and medical negligence. Am. Compl. III ¶¶ 53-54. According to Ms. Radin, she was falsely imprisoned in the DOHMH mental health observation ward "where she suffered physical assault." Id. ¶ 70.
Ms. Radin alleged that the DOHMH demonstrated negligence by "not following proper protocol for providing psychiatric care for recalcitrant persons" and by creating "false records." Am. Compl. III ¶ 55. These false records were purportedly "built on, among other things, intentionally false records at Jersey City Medical Center," which in turn were "built on, among other things, intentionally false records at [Albert Einstein]." Id. ¶¶ 57-59. Jersey City Medical Center is not a defendant in this case. Ms. Radin also asserted that she "was never a patient of any one at [Albert Einstein]," including Defendant Dr. David, as well as Dr. Janice Bennett ("Dr. Bennett") and Dr. Michael J. Reichgott ("Dr. Reichgott"), who were not named as defendants in this action. Id. ¶¶ 61-64.
See Radin v. Jersey City Med. Ctr., 375 F. App'x 205, 206-07, 206 n.1 (3d Cir. 2010) (affirming the dismissal of a largely blank document identified "as a complaint for lack of a better description"; finding Ms. Radin's complaint to be so deficient that no opportunity to amend was required).
Judge Gleeson ordered Plaintiff to "name all defendants in the caption." Order at 3, ECF No. 3.
Ms. Radin further alleged that the DOHMH acted fraudulently by billing for "un-authorized[] and unwanted services." Am. Compl. III ¶ 56. Ms. Radin also alleged that she was fraudulently induced into enrolling at Albert Einstein in 1994 "based on false promises made during the admissions process." Id. ¶ 67. Finally, Ms. Radin alleged that Maria Piovanetti ("Ms. Piovanetti"), whom Ms. Radin did not name as a defendant in this action, made threatening phone calls to Ms. Radin. Am. Compl. III ¶¶ 75-77.
C. The Motions To Dismiss
The City Defendants, the Einstein Defendants and the Psychiatrist Defendants each moved under Rule 12(b)(6) to dismiss Plaintiff's Corrected Second Amended Complaint. City Mot., ECF No. 137; Einstein Mot., ECF No. 142; Psychiatrist Mot., ECF No. 144. Each of these three motions was supported by a memorandum of law. City Mem., ECF No. 138; Einstein Mem., ECF No. 142-1; Psychiatrist Mem., ECF No. 144-1.
Although Plaintiff was allowed two months in which to serve an opposition to these motions, Plaintiff initially allowed this deadline to pass without opposing the motions. The Court extended Plaintiff's deadline, nunc pro tunc, by more than two weeks. 10/7/2014 Order, ECF. On the day her opposition was due, Plaintiff requested an additional extension on account of an allegedly recurring eye infection, and the Court granted her an additional two-week extension. 10/28/2014 Scheduling Order, ECF. Plaintiff appealed this Scheduling Order, which was upheld by Judge Ross. 11/6/2014 Order, ECF. Plaintiff again failed to file her opposition by the deadline. Nevertheless, the Einstein Defendants filed a reply memorandum. Einstein Reply I, ECF No. 143. The other moving Defendants rested on their initial papers.
Plaintiff confusingly suggested that she filed opposition papers prior to September 30, 2014, stating that an affidavit of service for a letter addressed to the District Judge was, instead, proof of service of her opposition papers on Defendants. See Letter at 1, ECF No. 129. This assertion was particularly confusing because it was accompanied by a request for an extension of time in which to file Plaintiff's opposition, see id. at 4, and in other letters filed around that time, Plaintiff argued that she did "not have to litigate further," Letter at 1, ECF No. 126, and that the motions to dismiss were "irrelevant," Letter at 1, ECF No. 131 (emphasis in original removed), suggesting she objected to responding to the motions. The Court ordered Plaintiff to refile her certificate of service, if any, for the opposition brief she purportedly served on Defendants prior to September 30, 2014. 10/28/2014 Order, ECF. Plaintiff never filed this document, and Defendants confirmed that they never received any opposition brief other than the one eventually filed on November 17, 2014. See Einstein Reply I at 2; Letter, ECF No. 149; Pl. Opp. Mem., ECF No. 146. Thus, the Court understands Plaintiff's "Initial Memorandum of Law" filed at ECF No. 146 to be her sole opposition brief. Nonetheless, the Court has reviewed and considered Plaintiff's Letters at ECF Nos. 125, 126, and 128-131 in determining this motion.
Approximately two weeks after the extended deadline passed, Plaintiff filed a document titled "Initial Memorandum of Law." Pl. Mem., ECF No. 146. Over the City Defendants' and the Einstein Defendants' objections, the Court elected to consider Plaintiff's filing as her opposition brief "in the interest of fully and finally submitting the motions to dismiss for consideration by the Court." 11/19/2014 Order, ECF. Thereafter, the Einstein Defendants filed an amended reply memorandum. Einstein Reply II, ECF No. 152. Neither the City Defendants nor the Psychiatrist Defendants filed a reply memorandum.
The Court will now consider the arguments raised by the Parties in their memoranda of law.
II. ANALYSIS
The motions to dismiss assert that Plaintiff's Corrected Second Amended Complaint should be dismissed pursuant to Rule 12(b)(6) for failing to state a claim upon which relief can be granted.
A. Standard Of Review For A Motion To Dismiss
Rule 8(a)(2) requires a complaint to set forth a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The pleading standard of Rule 8 does not require "detailed factual allegations," but demands "more than labels and conclusions"; "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555.
Prior to filing a responsive pleading, a defendant may move to dismiss a complaint pursuant to Rule 12(b)(6) for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "In ruling on a motion pursuant to Fed. R. Civ. P. 12(b)(6), the duty of a court 'is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 113 (2d Cir. 2010) (quoting Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998)). The Court must "accept all factual allegations in the complaint as true and draw all reasonable inferences in plaintiff's favor." In re Thelen LLP, 736 F.3d 213, 218 (2d Cir. 2013). Nonetheless, courts "'are not bound to accept as true a legal conclusion couched as a factual allegation.'" Twombly, 550 U.S. 544, 555 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)); see Quitoriano v. Raff & Becker, LLP, 675 F. Supp. 2d 444, 448-49 (S.D.N.Y. 2009) ("At the outset of deciding a motion to dismiss, the court may identify unsupported legal conclusions contained in the pleadings that are not entitled to an assumption of truth.").
A pro se plaintiff must fulfill the same pleading requirements, but on a motion to dismiss, a pro se plaintiff's complaint "must be construed liberally with 'special solicitude' and interpreted to raise the strongest claims that it suggests." Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013) (quoting Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)); see Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013) (same); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) ("Even after Twombly . . . we remain obligated to construe a pro se complaint liberally."). "Although pro se pleadings must be read liberally, they must still abide by the Federal Rules of Civil Procedure." Jones v. Consumer Info. Dispute Resolution, No. 06 Civ. 1809 (LAP), 2007 WL 2398811, at *1 (S.D.N.Y. Aug. 16, 2007). Thus, a pro se plaintiff's "[b]ald assertions and conclusions of law are not adequate to withstand a motion to dismiss." Ruotolo v. Fannie Mae, 933 F. Supp. 2d 512, 524-25 (S.D.N.Y. 2013) (quoting Wilson v. Dalene, 699 F. Supp. 2d 534, 554 (E.D.N.Y. 2010)); see Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996); Zemsky v. City of New York, 821 F.2d 148, 151 (2d Cir. 1987). Furthermore, a court "cannot invent factual allegations that [the pro se plaintiff] has not pled." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010); see Lawtone-Bowles v. City of N.Y., Dep't of Sanitation, 22 F. Supp. 3d 341, 345 (S.D.N.Y. 2014) (same).
On a motion to dismiss, the Court "may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint." DiFolco, 622 F.3d at 111. In addition, the Court "may consider factual allegations made by a pro se party in his papers opposing the motion." Walker, 717 F.3d at 122 n.1; see Mayes v. N.Y.C. Police Dep't, No. 10 Civ. 1690 (JSR) (JLC), 2011 WL 2206739, at *3 (S.D.N.Y. June 6, 2011) ("[T]he Court may consider the facts set forth in [the plaintiff's] opposition to the present motion as support for his claims without converting a motion to dismiss into a motion for summary judgment."), R. & R. adopted, No. 10 Civ. 1690 (JSR), 2011 WL 3743309 (S.D.N.Y. Aug. 23, 2011). The court may also treat additional claims raised in a pro se plaintiff's opposition papers "as a proposed amendment to the original complaint." Ajlani v. Chertoff, 545 F.3d 229, 235 (2d Cir. 2008). The court need not permit any such proposed amendment if "[c]onsideration of the 'amended pleading' simply confirms that amendment of the complaint would be futile" because the additional allegations do not meet Rule 8 pleading requirements or would not be "sufficient to survive a Rule 12(b)(6) motion to dismiss." Obot v. Sallie Mae, No. 14-853, --- Fed. App'x ---, 2015 WL 548202, at *2 (2d Cir. Feb. 11, 2015).
B. Plaintiff's Claims
Liberally construing Plaintiff's claims, see Walker, 717 F.3d at 124, Plaintiff brings an action pursuant to 42 U.S.C. §§ 1983, 1985, 1986 and 1988; under 18 U.S.C. §§ 4, 241, 242, 245, 249 and 1589; under New York Education Law § 6530; and for New York common law claims of negligence, medical malpractice and fraud. The Court will consider whether each of these claims was adequately pled. In addition, although not pleaded in the Corrected Second Amended Complaint, the Court will address the claims raised by Plaintiff in prior pleadings, such as her defamation claims.
1. Plaintiff's Claims Against The DOP, Rikers MHD And Elmhurst Should Be Construed As Claims Against The City
As a preliminary matter, pro se Plaintiff named several entities that cannot be sued. The New York City Charter provides that "[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York and not in that of any agency, except where otherwise provided by law." N.Y.C. Admin. Code & Charter Ch. 16 § 396; see McNeil v. City of N.Y., NYPD, No. 13 Civ. 4579 (ARR), 2013 WL 4761142, at *2 (E.D.N.Y. Sept. 3, 2013); Ayala v. Bellevue Hosp., No. 94 Civ. 1551 (WHP), 1999 WL 637235, at *3 (S.D.N.Y. Aug. 20, 1999); see generally Igartua v. Elmhurst Hosp. D-11 Psychiatric Ward, No. 09 Civ. 3287 (ENV) (ALC), 2011 WL 1337494, at *3 (E.D.N.Y. Mar. 17, 2011), R. & R. adopted, No. 09 Civ. 3287 (ENV) (ALC), 2011 WL 1337158 (E.D.N.Y. Apr. 7, 2011). Where a pro se plaintiff erroneously sues a City agency in place of the City, courts may construe the claims as against the City. See D'Attore v. N.Y.C. Dep't of Correction, No. 10 Civ. 815 (JSR) (MHD), 2012 WL 4493977, at *5 (S.D.N.Y. Sept. 27, 2012), R. & R. adopted, No. 10 Civ. 815 (JSR) (MHD), 2012 WL 5951317 (S.D.N.Y. Nov. 28, 2012); see generally Eason-Gourde v. Dep't of Educ., No. 14 Civ. 7359 (WFK) (VMS), 2014 WL 7366185, at *1 (E.D.N.Y. Dec. 23, 2014).
In this case, pro se Plaintiff named as defendants the DOP and Rikers MHD, two agencies of the City of New York. See City Mem. 10-11. In addition, Plaintiff named as a defendant Elmhurst, which is a facility belonging to the New York City Health and Hospitals Corporation, another City agency. N.Y. Unconsol. Laws § 7385; see City Mem. 10-11. Plaintiff failed to name as a defendant the City of New York. As the DOP, Rikers MHD and Elmhurst are entities that cannot be sued, this Court respectfully recommends that these Defendants be dismissed, and Plaintiff's claims against the DOP, Rikers MHD and Elmhurst instead be liberally construed as claims against the City.
As mentioned above, Plaintiff did not name the DOHMH, another City agency, as a defendant. Had Plaintiff done so, the same analysis would apply as applies to the DOP and Rikers MHD.
2. Plaintiff's Civil Rights Claims
Plaintiff asserts claims under 42 U.S.C. §§ 1983, 1985, 1986 and 1988, which the Court understands to be for alleged violations of her constitutional rights related to a false imprisonment in the DOHMH's mental health observation ward and the alleged physical assault that took place there, as well as for the DOHMH's attempt to subject her to unwanted psychiatric care. Am. Compl. III ¶¶ 53-54, 70-71. Although Plaintiff has not specified the constitutional provisions which were allegedly violated, the Court understands Plaintiff's claims to concern her imprisonment as a pretrial and convicted detainee, thus alleging violations of the Fourth and Fourteenth Amendments. See Kingsley v. Hendrickson, --- S. Ct. ---, No. 14-6368, 2015 WL 2473447, at *3 (June 22, 2015) (a pretrial detainee's § 1983 claim implicated the Fourteenth Amendment); Washington v. Harper, 494 U.S. 210, 221-22 (1990) (finding that a convicted prisoner's interest in declining medical treatment arose "under the Due Process Clause of the Fourteenth Amendment"); Ortiz v. Henriquez, No. 99 Civ. 3268 (LMM), 2001 WL 1029411, at *3 (S.D.N.Y. Sept. 7, 2001) ("a false imprisonment claim pursuant to § 1983 must be predicated on a violation of the Fourth Amendment"), aff'd, 41 F. App'x 516 (2d Cir. 2002); see generally Caiozzo v. Koreman, 581 F.3d 63, 69 (2d Cir. 2009) (discussing the application of the Fourteenth Amendment to pre-trial detainees).
It is not clear whether Defendants concur that Plaintiff was a pretrial detainee during the incidents related to the mental health observation ward, but for purposes of the present motions, the Court accepts Plaintiff's timeline of these events. See Psychiatrist Mem. 13 (suggesting the Eighth, not the Fourteenth, Amendment applies to Plaintiff's § 1983 claims, without discussion of whether Plaintiff was a pretrial detainee or convicted inmate).
a. Plaintiff's § 1983 Claim
Section 1983 prohibits "the deprivation of any rights, privileges, or immunities secured by the Constitution and [its] laws" by a person acting under the color of state law. 42 U.S.C. § 1983; see Filarsky v. Delia, 132 S. Ct. 1657, 1661 (2012). "Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993).
i. False Imprisonment
As to false imprisonment, Plaintiff's pleading states only that she came under the care of the DOHMH "[o]n or about March of 2010," and "was falsely imprisoned in [t]he New York City Department of Health and Mental Hygiene mental health observation ward . . . ." Am. Compl. III ¶¶ 53, 70. The Court understands Plaintiff's complaint to be for unlawful pretrial detention in the DOHMH mental health observation ward.
In her opposition papers, Plaintiff adds that in "April 2010," she was "illegally convicted" and, from "April 2010 to March 2011," she was "falsely imprisoned" at Rikers Island. Pl. Opp. Mem. 16; see Walker, 717 F.3d at 122 n.1 (a court "may consider factual allegations made by a pro se party in his papers opposing the motion"). As to this passing mention to an "illegal conviction," Pl. Opp. Mem. 16, Plaintiff does not identify the charges on which she was convicted, stating only that five individuals purportedly "made false criminal charges against [her] through the Manhattan District Attorney's office, in retaliation" over a dispute between Plaintiff and Yeshiva University concerning her medical school records. Pl. Opp. Mem. 12. Only one of the individuals mentioned by Plaintiff, Dr. David, is a Defendant in this action, and Plaintiff does not explain any of the circumstances of the allegedly false statements leading to her arrest, such as what was said, when, to whom, or why the information was false. Id. Plaintiff has provided one page of an unidentified and incomplete document which suggests she was arrested on June 3, 2009 "[p]ursuant to a police investigation" and "following identification by a witness," and that she was charged with eight counts of "harassment 1st - stalking 1" for actions dating from May 14, 1996 to June 3, 2009, involving eight complainants. Am. Compl. Ex. 1 at 82. This document does not identify on what charges Plaintiff was convicted. Plaintiff further alleged in her opposition papers that she "discovered on Tuesday, September 2, 2014, that there was no legal basis for a criminal proceeding." Id. at 16 (emphasis in original omitted). Plaintiff asserts that "her attorney," Mr. Jerald Di Chiara ("Mr. Di Chiara") told her that there was no arrest warrant or grand jury indictment in this criminal matter. See id. at 27. Thus, the Court understands Plaintiff's complaint to be that she was falsely arrested, leading to an alleged false imprisonment and wrongful conviction.
The District Court denied Ms. Radin's request to file a fourth amended pleading to expand her false imprisonment claims to include these allegations. 11/6/2014 Order, ECF. Regardless, any such false arrest or false imprisonment claim would be futile. The Court is not bound to accept Plaintiff's unsupported legal conclusions as to the lawfulness of her detention, and she has not provided any factual allegations suggesting that she could support a finding of false imprisonment or false arrest. See, e.g., Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002) (affirming dismissal of a false arrest claim where the plaintiff "proffered no evidence to suggest that the officers had any reason to doubt [the complaining witness's] veracity" (emphasis added)); Shain v. Ellison, 273 F.3d 56, 67 (2d Cir. 2001) ("An arrest made on probable cause is privileged . . . ."); see also Betts v. Shearman, 751 F.3d 78, 83 (2d Cir. 2014) (affirming dismissal of false arrest, false imprisonment and malicious prosecution claims notwithstanding the plaintiff's assertion that the complaining witness lied to police officers about the plaintiff's allegedly unlawful behavior). Furthermore, although it is unknown on what charge Plaintiff was convicted, conviction on any of the charges on which Plaintiff was arrested provides conclusive evidence of probable cause, barring any claim for false arrest, false imprisonment or malicious prosecution. See Smith v. City of New York, No. 12 Civ. 4572 (KPF), 2013 WL 6158485, at *3. Therefore, the Court limits its discussion of false imprisonment to the false imprisonment specifically alleged in the operative pleading—Plaintiff's detention in the mental health observation ward—and does not consider her detention at Rikers Island in its entirety.
To state a § 1983 claim for false imprisonment, the plaintiff must allege that the "defendant intended to confine him, he was conscious of the confinement, he did not consent to the confinement, and the confinement was not otherwise privileged." Shain, 273 F.3d at 67; see Kearney v. Westchester Cnty. Dep't of Correction, 506 F. App'x 45, 45-46 (2d Cir. 2012) (same); Levantino v. Skala, 56 F. Supp. 3d 191, 199 (E.D.N.Y. 2014) (same); Mitchell v. Home, 377 F. Supp. 2d 361, 376 (S.D.N.Y. 2005) (same).
Plaintiff has not sufficiently pled a § 1983 claim for false imprisonment concerning her alleged March 2010 detention in the DOHMH mental health observation ward. Plaintiff's submissions are devoid of information concerning the circumstances of her detention, including who detained her, for how long she was detained, why she was detained, and, most importantly, why Defendants did not have authority to so detain Plaintiff in the mental health observation ward. Plaintiff's bare assertion that she was "falsely imprisoned," Am. Compl. III ¶ 70, is a legal conclusion that fails to state a claim on which relief might be granted. Given her failure to describe any facts as to her incarceration, see note 12, supra, Plaintiff fails to advance a theory as to why being held in a subunit of Rikers would give rise to a separate cognizable claim.
Were Plaintiff to describe a restrictive unit where she was unlawfully deprived of certain rights or limited in her interaction with others, an unlawful unit assignment might give rise to a claim. See, e.g., Banks v. Pinker, No. 10 Civ. 4139 (RMB), 2012 WL 1066799, at *3 (S.D.N.Y. Mar. 22, 2012) (noting that "[a] prisoner can succeed on a false imprisonment claim only where he has sufficiently pleaded that he had been subjected to punitive segregation for no legitimate reason and without the rudimentary protections of due process," but granting the motion to dismiss for failure to allege such a claim (quoting Jackson v. N.Y. Dep't of Corr'n Servs., 994 F. Supp. 2d 219, 224 (S.D.N.Y. 1998))).
Plaintiff also fails to identify which of the Defendants were involved in this incident. "Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676 (internal citations omitted). Here, the Court cannot speculate as to how each prison medical professional and DOP employee participated, if at all, in detaining Plaintiff in the mental health observation ward.
As to the Einstein Defendants, "[i]n order to state a claim under § 1983, a plaintiff must allege that he was injured by either a state actor or a private party acting under color of state law." Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002); see generally Anghel v. N.Y.S. Dep't of Health, 947 F. Supp. 2d 284, 302 (E.D.N.Y. 2013) ("[T]he providing of information to or summoning of [law enforcement], even if that information is false or results in the officers taking affirmative action, is not sufficient to constitute joint action with state actors for purposes of § 1983."), reconsideration denied (July 20, 2013), aff'd, 589 F. App'x 28 (2d Cir. 2015); Einstein Mem. 8-11. "A merely conclusory allegation that a private entity acted in concert with a state actor does not suffice to state a § 1983 claim against the private entity." Ciambriello, 292 F.3d at 323. In this case, Plaintiff has not made any allegation as to how the Einstein Defendants "acted in concert with the state actor to commit an unconstitutional act," id. (quoting Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d Cir. 1992)), and thus has not alleged that the Einstein Defendants acted under color of state law concerning her detention in the mental health observation ward.
Einstein's acceptance of public funding, see Pl. Opp. Mem. 5, does not render this private educational institution into a state actor for all purposes. See Rendell-Baker v. Kohn, 457 U.S. 830, 840-41 (1982) (holding, in the context of a privately operated high school, that "[a]cts of such private contractors do not become acts of the government by reason of their significant or even total engagement in performing public contracts"); Einstein Mem. 9.
Furthermore, to the extent Plaintiff seeks to hold the City responsible, following Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978), "a municipality cannot be held liable under § 1983 on a respondeat superior theory." Id. at 691; see Cash v. Cnty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011). Plaintiff has not alleged that her detention "implement[ed] or execute[d] a policy statement, ordinance, regulation, or decision officially adopted and promulgated by [the City's] officers," and thus has not adequately alleged a Monell claim against the City. Monell, 436 U.S. at 690; Dudley v. Meekins, No. 13 Civ. 01851 (NGG) (VMS), 2013 WL 1681898, at *4 (E.D.N.Y. Apr. 17, 2013) (dismissing the complaint where it could not "reasonably be interpreted to allege facts sufficient to show that any alleged injury was caused by any policy or custom of the City"); see City Mem. 6-7. Therefore, this Court respectfully recommends that Plaintiff's § 1983 false imprisonment claims be dismissed for failure to state a claim.
ii. The Alleged Assault Suffered By Plaintiff
Plaintiff also alleges that she "suffered physical assault" during her March 2010 detention in the DOHMH mental health observation ward. Am. Compl. III ¶¶ 53, 70. Plaintiff's submissions do not explain who assaulted her or how, when or where she was assaulted, so it is unclear whether she is alleging an assault by one or more fellow detainees or by one or more prison employees. In one letter, Plaintiff referred to a newspaper article about "guards beat[ing] the inmates, like I was beaten," but the Court cannot conclude from this fragment of a sentence in a 98-page submission whether Plaintiff was referring specifically to abuse by prison guards or to prison assaults generally. Letter, ECF No. 131 at 6. Likewise, in a twenty-six page handwritten letter dated March 13, 2011 (prior to the commencement of this action), Plaintiff detailed her complaints against the Rikers staff and requested orders of protection against them, without mentioning any assault. Am. Compl. Ex. 1 at 52-77. Given the lack of detail, the Court will consider Plaintiff's claim under an excessive force theory and a failure-to-protect theory.
This alleged physical assault should not be confused with Plaintiff's allegations of a September 30, 2008 assault at the Jersey City Medical Center, see Pl. Opp. Mem. 9; the persons and entities involved in the New Jersey incident were not named as defendants in this case.
Although this comment was made in the context of alleged abuse at Rikers, it is also possible that Plaintiff was referring to the alleged assault at Jersey City Medical Center.
In this handwritten letter, Plaintiff complained that Defendant Dr. Ahmed "claimed she had 'seen' me as a patient[ and] dropped-kicked[sic] me into a mental observation building unnecessarily . . . . ," which the Court understands to be a complaint about being detained in the mental health observation ward, not a description of an assault. Am. Compl. Ex. 1 at 59.
As the Supreme Court recently explained in Kingsley, on an excessive force claim under the Fourteenth Amendment, "a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable." Kingsley, 2015 WL 2473447, at *5. Objective reasonableness is determined "from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight," and also considering the government's legitimate interests in prison management. Id. Considerations relevant to determining objective reasonableness include: "the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting." Id.
Prior to Kingsley, courts in this Circuit required the plaintiff to establish both an objective and a subjective element to an excessive force claim, see, e.g., Benjamin v. Flores, No. 11 Civ. 4216 (ARR), 2012 WL 5289513, at *3 (E.D.N.Y. Oct. 23, 2012) (citing United States v. Walsh, 194 F.3d 37, 49-50 (2d Cir. 1999)), and these courts held that, to satisfy the objective element, the force used must be "more than de minimis," id. (citing Walsh, 194 F.3d at 50); see Wilkins v. Gaddy, 559 U.S. 34, 39 (2010) (stating that the force used must be "nontrivial").
Here, Plaintiff has not described the assault she suffered, which prevents the Court from assessing whether the lack of objective reasonableness has been adequately pleaded. For example, the Court has no information about the amount of force used, the injury (if any) suffered by Plaintiff or the precipitating events. The court "cannot invent factual allegations that [the plaintiff] has not pled." Chavis, 618 F.3d at 170. Plaintiff's vague statement that she was "beaten," Letter at 6, ECF No. 131, might refer to a single slap or might refer to a more serious assault, but in any event, it is devoid of context relevant to determining objective reasonableness. See Lopez v. City of New York, No. 05 Civ. 10321 (NRB), 2009 WL 229956, at *8 (S.D.N.Y. Jan. 30, 2009) (collecting cases finding that a slap "does not rise to the level of a constitutional violation").
To the extent Plaintiff's assault was committed by another detainee, prison officials have a duty to protect pretrial detainees from violence instigated by other prisoners. See generally Scott v. Warden & Adm'r of Jurisdiction Correction Dep't & Med. Dep't, No. 08 Civ. 5729 (JSR) (FM) 2010 WL 3785252, at *6 (S.D.N.Y. Aug. 23, 2010) (finding that a pretrial detainee's failure-to-protect claim arose under the Due Process clause of the Fourteenth Amendment). To state a failure-to-protect claim, the plaintiff must show that prison officials acted with 'deliberate indifference' to [her] safety." Id. at *6 (quoting Warren v. Goord, 476 F. Supp. 2d 407, 410 (S.D.N.Y. 2007)). In other words, the plaintiff must allege that prison officials were aware of and disregarded a substantial risk of harm to the detainee's safety. See Farmer v. Brennan, 511 U.S. 825, 837 (1994); Barnes v. Cnty. of Monroe, --- F. Supp. 3d ---, No. 10 Civ. 6164 (EAW), 2015 WL 602860, at *22 (W.D.N.Y. Feb. 10, 2015); Scott, 2010 WL 3785252, at *6; Psychiatrist Mem. 13-14. In this case, Plaintiff has made no factual allegations suggesting that prison officials were aware of and disregarded a substantial risk to Plaintiff's safety. Plaintiff merely alleges that she suffered an assault, which is not sufficient to state a failure-to-protect claim.
In addition, to the extent Plaintiff brings her claims against the City, she has not alleged any policy or practice that might form the basis of a Monell claim, under either an excessive force or a failure-to-protect theory. The Court cannot broadly construe her pleadings to raise any particular Monell claim given her failure to provide any description of or context for the assault she allegedly experienced. Plaintiff offered a New York Times editorial letter concerning prison reform, see Letter at 6, ECF No. 158, and mentioned an unnamed study by the United States Attorneys' Office that purportedly related to Rikers Island guards assaulting inmates and "prison officials intentionally falsif[ying] records," Letter at 6, ECF No. 131. See Nunez v. City of New York, No. 11 Civ. 5845 (LTS) (JCF) (S.D.N.Y. June 22, 2015) (ECF No. 203) (letter concerning the preliminary approval of a consent judgment regarding policies and practices at Rikers). It is not clear that these assertions of misconduct have any relation to Plaintiff's own experience in the mental health observation ward, as it is unknown who assaulted Plaintiff and what were the precipitating events. Therefore, this Court respectfully recommends that Plaintiff's § 1983 claims related to her alleged assault, whether under a theory of excessive force or failure-to-protect, be dismissed for failure to state a claim.
As to the unnamed study purportedly finding that "prison officials intentionally falsified records," Letter at 6, ECF No. 131, Plaintiff's own claim of falsified records relates to mental health professionals identifying Plaintiff as a "patient," which is related to her state law medical malpractice claim and her prior claim for defamation; it is not related to her federal claims. Moreover, Plaintiff's vague reference to the unnamed study does not equate to an allegation of a practice or policy of falsely identifying detainees as patients.
iii. Unwanted Psychiatric Care
Finally, Plaintiff alleges that the DOHMH "attempt[ed] to force upon Plaintiff Radin unwanted psychiatric care." Am. Compl. III ¶ 54. She also stated that "harm was inflicted upon [her] by dishonest doctors at Riker[s] Island . . . ." Pl. Opp. Mem. 16.
"Inmates have a constitutionally protected liberty interest in refusing the medical treatment they are offered by correction officials." Alston v. Bendheim, 672 F. Supp. 2d 378, 384 (S.D.N.Y. 2009); see generally Pabon v. Wright, 459 F.3d 241, 249 (2d Cir. 2006); cf. Harper, 494 U.S. at 221-22 (recognizing "a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment"). Nonetheless, the state may treat a prisoner against her will "if the inmate is dangerous to [her]self or others and the treatment is in the inmate's medical interest." Harper, 494 U.S. at 227; see Phipps v. Gillani, No. 10 Civ. 1588 (TJM) (DEP), 2012 WL 265727, at *4 (N.D.N.Y. Jan. 5, 2012) (discussing additional due process protections under New York law), R. & R. adopted, No. 10 Civ. 1588 (TJM) (DEP), 2012 WL 264414 (N.D.N.Y. Jan. 30, 2012).
Although these events may have occurred before and after Plaintiff's conviction, the right to refuse medical treatment arises under the Fourteenth Amendment in either circumstance. See Harper, 494 U.S. at 221-22 (stating that the Fourteenth Amendment protects a prisoner's interest in refusing medical treatment); Jelich v. Hogan, No. 09 Civ. 3278(BMC), 2009 WL 3497495, at *3 (E.D.N.Y. Oct. 27, 2009) (explaining, in a case involving a civil involuntary commitment, that "[t]he Fourteenth Amendment protects the right of a competent person to refuse unwanted medical treatment.").
Plaintiff's state law negligence and medical malpractice claims are addressed infra. "[N]egligence and medical malpractice claims are not actionable under § 1983." Nogbou v. Mayrose, 400 F. App'x 617, 620 (2d Cir. 2010) (affirming the denial of a pro se litigant's request to amend to add such claims).
In this case, Plaintiff's vague allegations of attempted medical care and unexplained harm are insufficient to state a claim for the unconstitutional provision of unwanted psychiatric care. Plaintiff does not describe what the alleged psychiatric care involved; her actions, if any, to indicate that care was unwanted; and what care, if any, was forced upon Plaintiff after she refused care. It is Plaintiff's position that she declined mental health services throughout her detention and was eventually released from the psychiatric ward due to her refusal to accept mental health services, such that no mental health services were requested or received. See, e.g., Am. Compl. at 12-15, Ex. 1 at 60. Plaintiff complains that doctors referred to her as a patient even though she refused psychiatric care, see, e.g., Am. Compl. at 13; however, Plaintiff has not alleged that she was subjected to actual psychiatric care after refusing such services. Thus, even assuming that Defendants did not have cause to treat Plaintiff against her will, she has not stated a claim, and this Court respectfully recommends that her § 1983 claims based on unwanted psychiatric care be dismissed.
In addition to Plaintiff's failure to state a § 1983 claim, the Psychiatrist Defendants assert that the § 1983 claims, as against them, are barred by the statute of limitations. Psychiatrist Mem. 14-15. "Section 1983 actions filed in New York are [] subject to a three-year statute of limitations." Hogan, 738 F.3d at 517. As discussed infra, note 27, the Psychiatrist Defendants were not served until their counsel accepted service of the Second Amended Complaint, which was filed on May 28, 2014, more than three years after the events of March 2010. The untimeliness of Plaintiff's § 1983 claims as to the Psychiatrist Defendants provides additional grounds for dismissal.
b. Plaintiff's § 1985 And § 1986 Claims
In addition to her § 1983 claims, Plaintiff asserts claims under § 1985 and § 1986. Section 1985(3) prohibits two or more persons from conspiring "for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws." 42 U.S.C. § 1985(3). Under § 1986, when a person with knowledge that a conspiracy under § 1985 is "about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured." 42 U.S.C. § 1986. "Pleadings 'containing only conclusory, vague or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss.'" K.W. ex rel. Brown v. City of New York, 275 F.R.D. 393, 399 (E.D.N.Y. 2011) (quoting Young v. Suffolk Cnty., 705 F. Supp. 2d 183, 208 (E.D.N.Y. 2010)); see Frederick v. Wells Fargo Home Mortgage, No. 13 Civ. 7364 (DLI) (LB), 2015 WL 1506394, at *4 (E.D.N.Y. Mar. 30, 2015) (same).
Plaintiff does not specify under which section of § 1985 her claims lie. The Court understands her § 1985 claims to relate to her § 1983 claims and thus to be made under § 1985(3). Plaintiff's pleadings do not include allegations relevant to claims under §§ 1985(1) or (2).
"To state a civil rights conspiracy under § 1985(3), a plaintiff must allege: 1) a conspiracy; 2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and 3) an act in furtherance of the conspiracy; 4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States." Britt v. Garcia, 457 F.3d 264, 270 n.4 (2d Cir. 2006) (quoting Gray v. Town of Darien, 927 F.2d 69, 73 (2d Cir. 1991)); see Green v. McLaughlin, 480 F. App'x 44, 46 (2d Cir. 2012) (affirming dismissal of a pro se plaintiff's complaint that "alleged no facts upon which it may be plausibly inferred that the defendants came to an agreement to violate his constitutional rights"); Webb v. Goord, 340 F.3d 105, 111 (2d Cir. 2003) (where the "plaintiffs ha[d] not alleged, except in the most conclusory fashion, that any such meeting of the minds occurred among any or all of the defendants," their § 1985 claims were properly dismissed). Additionally, 42 U.S.C. § 1985 and, by extension, 42 U.S.C. § 1986, require that Plaintiff belong to a protected class. See Jews for Jesus, Inc. v. Jewish Cmty. Relations Council of N.Y., Inc., 968 F.2d 286, 291 (2d Cir. 1992) (stating the Supreme Court added a "class-based animus" requirement to 42 U.S.C. § 1985 to prevent it "from being broadly—and erroneously—interpreted as providing a federal remedy for 'all tortious, conspiratorial interferences with the rights of others'" (quoting Griffin v. Breckenridge, 403 U.S. 88, 101 (1971))); Fotopolous v. Bd. of Fire Comm'rs of Hicksville Fire Dist., 11 F. Supp. 3d 348, 369-71 (E.D.N.Y. 2014).
Here, Plaintiff's mere reference to a § 1985 claim is not sufficient to state a claim under this statute. Plaintiff did not specify the individuals or entities allegedly involved in any conspiracy, identify the actions that comprised any alleged conspiracy, or draw a connection between any alleged conspiracy and a deprivation of rights. Indeed, the term "conspiracy" does not appear in the Corrected Second Amended Complaint. As to the requirement that Plaintiff belong to a protected class, although the operative pleading does not mention mention a protected class, Plaintiff alleged in a prior pleading that she is being persecuted by "Yeshiva University and the Jewish community," who are allegedly "desperate to shut [her] up" so she does not write her book "The Israel Lobby & US Domestic Policy." See, e.g., Am. Compl. at 7. Even assuming that these allegations implicate religious discrimination, Plaintiff does not allege any discernable connection between her membership in a protected class and her federal claims concerning false imprisonment, attempted unwanted psychiatric care and physical assault. Moreover, Yeshiva University is not a defendant in this action. To the extent Plaintiff is referring to Albert Einstein, her pleadings nonetheless fail to explain how Albert Einstein allegedly conspired with others to deprive Plaintiff of constitutional rights.
See Jews for Jesus, 968 F.2d at 291 (discrimination based on religion is class-based animus for purposes of 42 U.S.C. § 1985); see also Fotopolous, 2014 WL 1315241, at *17, *17 n.9 (citing Gleason v. McBride, 869 F.2d 688, 695 (2d Cir. 1989), for the proposition that protected classes under 42 U.S.C. § 1985 may include political party members, but do not include being a defendant's political opponent).
Where a plaintiff fails to state a valid § 1985 claim, any § 1986 claim must be dismissed, as well. See Brown v. City of Oneonta, NY, 221 F.3d 329, 341 (2d Cir. 2000); Young, 705 F. Supp. 2d at 208 ("[Section] 1985 liability is a necessary predicate to a § 1986 claim."). As Plaintiff has failed to state a claim under § 1985, she has also failed to state a claim under § 1986. This Court respectfully recommends that Plaintiff's §§ 1985 and 1986 claims be dismissed for failure to state a claim.
c. Plaintiff's § 1988 Claim
42 U.S.C. § 1988 concerns, inter alia, awards of attorneys' fees in civil rights cases. In contrast to 42 U.S.C. §§ 1983, 1985 and 1986, it does not confer liability. See Keitt v. City of New York, No. 09 Civ. 5663 (PKC) (DF), 2010 WL 3466175, at *2 n.4 (S.D.N.Y. Aug. 9, 2010), R. & R. adopted, No. 09 Civ. 5663 (PKC) (DCF), 2010 WL 3466079 (S.D.N.Y. Sept. 2, 2010). Thus, Plaintiff's reference to a § 1988 claim does not state a cause of action, and her § 1988 claim should also be dismissed.
3. Plaintiff's Claims Under The Criminal Law
Plaintiff raised the following claims based on provisions of the criminal law: 18 U.S.C. §§ 4 (misprision of felony), 241 (conspiracy against rights), 242 (deprivation of rights under color of law), 245 (federally protected activities), 249 (hate crimes), and 1589 (forced labor). Am. Compl. III ¶ 50. "Private individuals [] lack standing to sue under the criminal law." Mayer v. Mayer, No. 11 Civ. 6385 (ENV) (SMG), 2012 WL 441182, at *2 (E.D.N.Y. Feb. 10, 2012) (dismissing, for lack of standing, the pro se plaintiff's claims raised under the criminal law); see Pierce v. N.Y.S. Police (Troop D Lowville), No. 05 Civ. 1477, 2011 WL 1315485, at *7 (N.D.N.Y. Apr. 4, 2011) ("[T]he federal criminal hate crime statute, 18 U.S.C. § 249(a), does not create a private right of action."); Williams v. Jurow, No. 05 Civ. 6949 (DAB) (HBP), 2007 WL 5463418, at *13 (S.D.N.Y. June 29, 2007) (no private right of action exists under 18 U.S.C. §§ 4, 241, and 242), R. & R. adopted as modified, No. 05 Civ. 6949 (DAB) (HBP), 2008 WL 4054421 (S.D.N.Y. Aug. 28, 2008); John's Insulation, Inc. v. Siska Const. Co., 774 F. Supp. 156, 163 (S.D.N.Y. 1991) ("18 U.S.C.[] § 245 . . . confers neither substantive rights nor a private right of action for damages."); Powers v. Karen, 768 F. Supp. 46, 51 (E.D.N.Y. 1991) (18 U.S.C. §§ 241 and 242 "do not provide for a private right of action"), aff'd, 963 F.2d 1522 (2d Cir. 1992); see generally Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) ("[A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another."); In re Application for an Order Pursuant to 28 U.S.C. § 1782 to Conduct Discovery for Use in Foreign Proceedings, 773 F.3d 456, 458 n.4 (2d Cir. 2014) (same).
Although 18 U.S.C. § 1595(a) permits a civil action for violations of 18 U.S.C. § 1589 where a person "knowingly" engages in forced labor, Plaintiff has not pled any of the elements necessary for a claim of forced labor, such as obtaining labor by force, threats or abuse of law. 18 U.S.C. § 1589(a); see Einstein Mem. 18.
As Plaintiff in this action lacks standing to assert claims under federal criminal law, and has not raised any allegations to support a civil action under 18 U.S.C. § 1589, she has failed to state claims under 18 U.S.C. §§ 4, 241, 242, 245, 249, and 1589, and this Court respectfully recommends dismissing her claims raised under the criminal law.
4. Plaintiff's Equal Protection Claim Concerning Ms. Piovanetti
Plaintiff's Corrected Second Amended Complaint contains newly added claims related to alleged threatening telephone calls and voice mail messages made by Ms. Piovanetti to Ms. Radin. Am. Compl. III ¶¶ 75-79. Ms. Piovanetti is not a named defendant in this case, and the crux of Plaintiff's claim appears to be a constitutional claim against the judiciary and unnamed "local authorities," rather than any claim against Ms. Piovanetti. Id. ¶¶ 78-79. Specifically, Plaintiff asserted claims against Judge Chen, the District Judge then assigned to this case, and against the undersigned, Magistrate Judge Scanlon, for allegedly failing "to meaningfully respond" after "local authorities refused to provide [Plaintiff] and her witnesses with equal protection of the law." Id. ¶¶ 78-79. These claims as they relate to Judge Chen and the undersigned were dismissed sua sponte by Judge Ross as frivolous because they were "clearly barred by the doctrine of judicial immunity." Order at 2, ECF No. 98. Plaintiff did not name as Defendants the "local authorities" mentioned in her pleading, although she identified them in her opposition papers as Detective Barry and Detective Jon Pierre of the New York City Police Department, 77th Precinct, and the Kings County District Attorney's Office. Pl. Opp. Mem. 18. To the extent Plaintiff intended to raise a constitutional claim against these "local authorities" for failing to provide "equal protection of the law," Am. Compl. III ¶¶ 78-79, the Court will briefly address her contentions.
The Court notes that Judge Chen, the District Judge assigned to this case prior to Judge Ross, provided Plaintiff with a detailed explanation of why the Court lacked subject matter jurisdiction over Plaintiff's complaint against Ms. Piovanetti and why the Court lacked personal jurisdiction over Ms. Piovanetti for purposes of the temporary restraining order Plaintiff sought. 4/29/2014 Order, ECF. In addition, Judge Chen explained that Plaintiff lacked standing to request a restraining order on behalf of Plaintiff's nonparty witnesses. Id.
"[T]he Equal Protection Clause bars the government from selective adverse treatment of individuals compared with other similarly situated individuals if 'such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.'" Bizzarro v. Miranda, 394 F.3d 82, 86 (2d Cir. 2005) (emphasis removed; quoting LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir. 1980)).
In this case, Plaintiff has not identified what impermissible consideration is at issue, nor has she identified how she was treated differently from similarly situated individuals. See, e.g., A'Gard v. Perez, 919 F. Supp. 2d 394, 406 (S.D.N.Y. 2013) (dismissing a "wholly conclusory" equal protection claim). Therefore, to the extent any part of Plaintiff's equal protection claim survived Judge Ross's Order dismissing these claims against the judicial defendants, this Court respectfully recommends that Plaintiff's equal protection claim be dismissed for failure to state a claim.
5. Plaintiff's State Law Claims Related To Medical Malpractice
Plaintiff asserted medical malpractice claims under a variety of state law theories, including under New York Education Law § 6530, and under the New York common law for negligence, medical malpractice and fraud. Specifically, Plaintiff alleged that
On or about March 2010, [t]he New York City Department of Health and Mental Hygiene attempted to undertake the psychiatric care of Plaintiff Radin without Plaintiff Radin's consent, pursuant to, among other things, New York Education [L]aw section 6530, Misconduct by Physicians, and their assistants, sub-sections 16 and 26, performing professional services that have not been duly authorized by the patient.Am. Compl. III ¶ 53. Plaintiff further stated that the DOHMH "was negligent, careless and guilty of medical negligence in attempting to force upon Plaintiff Radin unwanted psychiatric care"; that the DOHMH "was negligent for not following proper protocol for providing psychiatric care for recalcitrant persons and, to hide their negligence, [the DOHMH] intentionally created false records"; that the DOHMH "billed for un-authorized, and unwanted[,] services"; and that the allegedly false records made by the DOHMH were based on other allegedly false records created by nonparty Jersey City Medical Center and Defendant Albert Einstein. Id. ¶¶ 54-59. In addition, Plaintiff complained that although, in 2009, a nonparty Manhattan criminal court judge reviewed medical records produced by Albert Einstein in accordance with a subpoena, Plaintiff "was never a patient of any one at [Albert Einstein]," including Defendant Dr. David and nonparties Dr. Bennett and Dr. Reichgott. Id. ¶¶ 60-64.
a. Supplemental Jurisdiction
As a preliminary matter, the District Court must first decide whether to exercise supplemental jurisdiction over these state law claims. Courts have discretion to decline to exercise supplemental jurisdiction when, inter alia, "the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). "In general, where the federal claims are dismissed before trial, the state claims should be dismissed as well." Delaney v. Bank of Am. Corp., 766 F.3d 163, 170 (2d Cir. 2014) (quoting Marcus v. AT&T Corp., 138 F.3d 46, 57 (2d Cir. 1998)). "That said, a district court does not abuse its discretion where the 'values of judicial economy, convenience, fairness, and comity' support the exercise" of supplemental jurisdiction. Id. (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)); see Cinevert v. Varsity Bus Co., No. 12 Civ. 1223 (RRM) (VVP), 2014 WL 4699674, at *3 (E.D.N.Y. Sept. 22, 2014) (same).
Assuming that the District Court adopts this Court's recommendation to dismiss Plaintiffs' federal claims, it would be within the District Court's discretion to decline to exercise supplemental jurisdiction over Plaintiff's state law claims. 28 U.S.C. § 1367(c)(3). Nonetheless, several factors weigh in favor of exercising supplemental jurisdiction. This case has been pending for over three years while Plaintiff has filed four pleadings and while the Parties have engaged in motion practice, and this case does not involve novel or unsettled issues of state law. In addition, Plaintiff attested to her limited financial means and lack of employment. Mot. to Appoint Counsel at 2, ECF No. 84. Thus, the interests of judicial economy, convenience and fairness are best served—and the interest of comity would not be harmed—by this Court resolving the remaining straightforward issues of state law. Declining to exercise supplemental jurisdiction in these circumstances would open the door to additional state court litigation, see N.Y. C.P.L.R. 205(a), with all of the attendant costs, to resolve what are, as discussed below, futile claims. Such an outcome would not be fair to the Parties and would be a waste of judicial resources. Indeed, several courts in this Circuit have, in similar circumstances, retained supplemental jurisdiction to resolve a pro se plaintiff's state law claims. See generally Watkins v. Ramos, No. 14 Civ. 2748 (LGS) (SN), 2015 WL 1516673, at *6-7 (S.D.N.Y. Apr. 3, 2015) (on a motion to dismiss, dismissing the pro se plaintiff's supplemental state law claims along with his § 1983 claims as his state claims failed as a matter of law and he failed to file a notice of claim); Cornado v. City of New York, No. 11 Civ. 5188 (LTS) (HBP), 2014 WL 4746137, at *4 (S.D.N.Y. Sept. 24, 2014) (on a motion to dismiss, dismissing the pro se plaintiff's supplemental state law claims along with his § 1983 claims where he failed to file a notice of claim); Boda v. Phelan, No. 11 Civ. 00028 (KAM), 2014 WL 3756300, at *7 (E.D.N.Y. July 30, 2014) (same, on a motion for summary judgment).
Therefore, this Court respectfully recommends that the District Court exercise supplemental jurisdiction over Plaintiff's remaining state law claims. In the alternative, should the District Court decide not to exercise supplemental jurisdiction, this Court respectfully recommends that the state law claims be dismissed without prejudice.
b. Plaintiff's Failure To File A Notice Of Claim
"Pursuant to New York General Municipal Law § 50-e, a plaintiff who asserts a state law tort claim against a municipal entity or its employees for acts that occurred within the scope of their employment must file a notice of claim within ninety days after the incident giving rise to the claim." Maier v. N.Y.C. Police Dep't, No. 08 Civ. 5104 (ILG) (JO), 2009 WL 2915211, at *3 (E.D.N.Y. Sept. 1, 2009) (quoting Smart v. City of New York, No. 08 Civ. 2203 (HB), 2009 WL 862281 (E.D.N.Y. Apr. 1, 2009)); see Nunez v. City of New York, 307 A.D.2d 218, 219, 762 N.Y.S.2d 384, 385 (1st Dep't 2003) (same); City Mem. 12-13. In addition, "service of the notice of claim on the proper entity is a condition precedent to suit . . . ." Williams v. City of New York, 74 A.D.3d 548, 549, 905 N.Y.S.2d 23, 23 (1st Dep't 2010); see N.Y. Gen. Mun. Law § 50-e(1)(b); Jones v. City of New York, 300 A.D.2d 359, 359, 751 N.Y.S.2d 522, 522 (2d Dep't 2002) ("Service of a notice of claim against the New York City Health and Hospitals Corporation . . . is a condition precedent to the commencement of a tort action against it and its member hospitals . . . ."). "Failure to timely comply with the notice requirements of GML § 50-e requires dismissal of state law tort claims against a municipal entity and its employees." Elufe v. Aylward, No. 09 Civ. 458 (KAM) (LB), 2011 WL 477685, at *11 (E.D.N.Y. Feb. 4, 2011).
The failure to file a notice of claim does not require the dismissal of claims against municipal employees sued in their individual capacities, unless the municipality was required to indemnify the individual and the individual acted within the scope of his or her employment. See Brooks v. Cnty. of Nassau, 54 F. Supp. 3d 254, 258 (E.D.N.Y. 2014); Johnson v. Cnty. of Nassau, No. 10 Civ. 06061 (JFB) (GRB), 2014 WL 4700025, at *24 (E.D.N.Y. Sept. 22, 2014), reconsideration denied, No. 10 Civ. 06061 (JFB) (GRB), 2015 WL 393871 (E.D.N.Y. Jan. 30, 2015); Wharton v. Cnty. of Nassau, No. 10 Civ. 0265 (JS) (AKT), 2013 WL 4851713, at *15 (E.D.N.Y. Sept. 10, 2013).
Plaintiff has not pleaded that she filed a notice of claim, attached a notice of claim to any of her submissions or asserted that she timely served a notice of claim on the relevant Defendants. See City Mem. 13. Therefore, Plaintiff's claims against the City and the City Defendants in their official capacities should be dismissed.
Although the New York General Municipal Law permits plaintiffs to move for leave to serve a late notice of claim in certain circumstances, the relevant court cannot grant an extension that exceeds "the time limit[] for the commencement of an action by the claimant against the public corporation." N.Y. Gen. Mun. Law § 50-e(5). Here, over five years has passed since the March 2010 events at issue. An extension of time as to Plaintiff's medical malpractice claim would therefore be precluded by the two-and-a-half year statute of limitations that applies to such claims. N.Y. C.P.L.R. 214-a. Plaintiff's fraud claim may be subject to a six-year statute of limitations, N.Y. C.P.L.R. 213(8) (a claim for fraud must be brought by "the greater of six years from the date the cause of action accrued or two years from the time the plaintiff or the person under whom the plaintiff claims discovered the fraud, or could with reasonable diligence have discovered it"), which leaves open the possibility of a viable extension. Nevertheless, any request for an extension must be made to the state court, not federal court, per N.Y. Gen. Mun. Law § 50-e(8). "[N]umerous cases in this circuit have interpreted [N.Y. Gen. Mun. Law § 50-e(8)] to mean that the '[f]ederal courts do not have jurisdiction to hear complaints from plaintiffs who have failed to comply with the notice of claim requirement, or to grant permission to file a late notice.'" Olsen v. Cnty. of Nassau, No. 05 Civ. 3623 (ETB), 2008 WL 4838705, at *3 (E.D.N.Y. Nov. 4, 2008) (quoting Cortlandt v. Westchester Cnty., No. 07 Civ. 1783 (MDF), 2007 WL 3238674, at *8 (S.D.N.Y. Oct. 31, 2007)); see Meadors v. Ulster Cnty., 984 F. Supp. 2d 83, 90 (N.D.N.Y. 2013) (same); Stoeckley v. City of New York, 700 F. Supp. 2d 489, 496 (S.D.N.Y. 2010) (same). Thus, even had Plaintiff sought leave to file a late notice (which she has not sought), this Court lacks jurisdiction to grant such a request.
The Parties did not brief this issue as to the City Defendants' individual liability, including whether the City is required to indemnify the individual City Defendants and whether these Defendants were acting within the scope of their employment. Indeed, the latter issue would not be possible to determine based on Plaintiff's limited description of events in her pleadings. See Brooks v. Cnty. of Nassau, 54 F. Supp. 3d 254, 258 (E.D.N.Y. 2014) (denying a motion to dismiss as to municipal employees sued in their individual capacities where "the parties have not adequately briefed the issue of whether the County has a duty to indemnify the defendant police officers as to specific state claims"). Thus, this Court does not recommend dismissing the claims against the City Defendants in their individual capacities based on the scope of their employment at this time, although the Court recommends that these claims be dismissed on other grounds, as discussed below. In addition, Plaintiff's failure to file and serve a notice of claim may affect her claims against the Psychiatrist Defendants, but as the Psychiatrist Defendants did not raise this point, the Court will not address it.
This Court respectfully recommends that Plaintiff's state law claims as to the City and the City Defendants sued in their official capacities be dismissed due to Plaintiff's failure to file and serve a notice of claim.
c. New York Education Law § 6530
In addition to failing to file a notice of claim, Plaintiff failed to state a claim for which relief may be granted. Plaintiff first purports to state a claim under New York Education Law § 6530, which provides the definition of professional misconduct relevant to that statute. Plaintiff specifically references subsection 16, which prohibits "[a] willful or grossly negligent failure to comply with substantial provisions of federal, state, or local laws, rules, or regulations governing the practice of medicine," and subsection 26, which prohibits "[p]erforming professional services which have not been duly authorized by the patient or his or her legal representative." N.Y. Educ. Law § 6530.
Contrary to Plaintiff's contentions, see Letter at 6, ECF No. 125; Letter at 4, ECF No. 126, "Title VIII of the New York Education Law (Education Law §§ 6500 et seq.) . . . does not provide for a private right of action by an individual who sustains damages as a result of professional misconduct defined therein." Requa v. Coopers & Lybrand, 303 A.D.2d 159, 159, 756 N.Y.S.2d 43, 44 (1st Dep't 2003); see Andersen v. N. Shore Long Island Jewish Healthcare Sys.'s Zucker Hillside Hosp., No. 12 Civ. 1049 (JFB) (ETB), 2013 WL 784391, at 83 n.2 (E.D.N.Y. Jan. 23, 2013) (noting that N.Y. Educ. Law § 6530 contains no private right of action), R. & R. adopted as mod., No. 12 Civ. 1049 (JFB) (ETB), 2013 WL 784344 (E.D.N.Y. Mar. 1, 2013); City Mem. 14-15. Rather, under New York law, "the state board for professional medical conduct" determines what penalties may arise for such misconduct. N.Y. Pub. Health Law § 230-a. Thus, as with Plaintiff's claims under federal criminal law, Plaintiff lacks standing to state a claim under New York Education Law § 6530, and this Court respectfully recommend that these claims be dismissed.
d. Plaintiff's Common Law Claims
Plaintiff next alleges that the DOHMH is liable under New York common law for negligence, medical malpractice and fraud. Plaintiff also appears to allege a claim for fraud against Albert Einstein and Dr. David related to fraudulent medical records.
i. Medical Malpractice
As a preliminary matter, Plaintiff's negligence and medical malpractice claims are not separate causes of action. "[M]edical malpractice is simply a form of negligence, no rigid analytical line separates the two," and "[c]onduct may be deemed malpractice, rather than negligence, when it 'constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician.'" Scott v. Uljanov, 74 N.Y.2d 673, 674-75, 541 N.E.2d 398, 399 (1989) (quoting Bleiler v. Bodnar, 65 N.Y.2d 65, 72, 479 N.E.2d 230, 234 (1985)); see Bowen v. Patrick, No. 11 Civ. 4799 (JMF) (GWG), 2012 WL 3743409, at *10-11 (S.D.N.Y. Aug. 29, 2012), R. & R. adopted, No. 11 Civ. 4799 (JMF) (GWG), 2012 WL 4320537 (S.D.N.Y. Sept. 20, 2012) (same); D'Elia v. Menorah Home & Hosp. for Aged & Infirm, 51 A.D.3d 848, 850, 859 N.Y.S.2d 224, 226 (2d Dep't 2008) (same). Thus, Plaintiff's claims in this case are best understood as claims for medical malpractice, not negligence.
"To state a claim for medical malpractice under New York law, a plaintiff must show that (1) the defendant breached the professional standard of care in the community and (2) that such breach caused the plaintiff's injuries." Valentine v. Lindsay, No. 10 Civ. 868 (JG) (JMA), 2011 WL 3648261, at *9 (E.D.N.Y. Aug. 17, 2011). As with Plaintiff's § 1983 claim, Plaintiff's factually unsupported allegations that the DOHMH attempted to provide her with unwanted psychiatric care is insufficient to state a claim. Plaintiff concludes that the DOHMH breached the standard of care without providing any specific factual allegations from which such a conclusion might be drawn, particularly as Plaintiff's assertion of attempted psychiatric treatment is exceedingly vague. It is unclear what "attempted" psychiatric treatment entails. Plaintiff does not, for example, allege that she was forced to take psychiatric medication against her will or that she was forced to submit to any other treatment. Cf. Bektic-Marrero v. Goldberg, 850 F. Supp. 2d 418, 434 (S.D.N.Y. 2012) (denying a motion to dismiss state medical malpractice claims concerning the failure to provide medical care to an inmate suffering from cancer). Furthermore, Plaintiff does not identify the alleged injuries she suffered as a result of these actions. See Valentine, 2011 WL 3648261, at *9 (granting a motion to dismiss the plaintiff's medical malpractice claims where there were no allegations that a breach of the standard of care "was the cause of his injuries"). Therefore, Plaintiff has failed to state a claim for medical malpractice and this Court respectfully recommends that her medical malpractice and negligence claims be dismissed.
The Psychiatrist Defendants raised an additional argument that Plaintiff's claims for medical malpractice are barred by the two-and-a-half-year statute of limitations applicable under New York law. N.Y. C.P.L.R. 214-a; see Psychiatrist Mem. 10-11. Plaintiff alleges that the relevant events occurred in March 2010, such that the statute of limitations would have run in or around September 2012. According to the Psychiatrist Defendants, they were not properly served until their counsel agreed to accept service of the Second Amended Complaint, which was filed on May 28, 2014. Indeed, the Psychiatrist Defendants were not served pursuant to Rule 4 with either Plaintiff's initial March 15, 2012 Complaint or her July 14, 2012 Amended Complaint. Psychiatrist Mem. 10-11. Plaintiff did not file proof of service of her initial Complaint as to any Defendant, and her proof of service for the Amended Complaint states that certain Defendants, but not the Psychiatrist Defendants, were served. Aff. of Serv., ECF No. 10. In any event, service of the Amended Complaint was purportedly completed on July 13, 2012, and the Amended Summons was not issued until October 12, 2012. Id.; Amended Summons, ECF No. 18. Thus, service of the summons and complaint was never completed as required by Rule 4. Fed. R. Civ. P. 4(c)(1). Plaintiff did not request or serve an amended summons for the Second Amended Complaint or the Corrected Second Amended Complaint—notwithstanding this Court's Order that she do so—and, thus, those pleadings were also not served in accordance with Rule 4. See 6/20/2014 Order, ECF; see also 11/12/2013 Minute Entry (noting that, during a November 12, 2013 status conference attended by Plaintiff, "[t]he Parties dispute[d] whether there had been proper service on Shaheena Ahmed and Alkesh Patel."). Nonetheless, by letter dated June 28, 2014, counsel for the Psychiatrist Defendants accepted service of the Second Amended Complaint. Letter, ECF No. 96. Thus, Plaintiff's failure to raise timely medical malpractice claims against the Psychiatrist Defendants provides an additional basis for dismissal.
ii. Fraud
Plaintiff alleges that the DOHMH created "intentionally false records" and "billed for un-authorized, and unwanted[,] services," which the Court understands to be claims of common law fraud. Am. Compl. III ¶¶ 56-57. Concerning Plaintiff's claims of fraud, "[u]nder New York law, to state a claim for fraud a plaintiff must demonstrate: (1) a misrepresentation or omission of material fact; (2) which the defendant knew to be false; (3) which the defendant made with the intention of inducing reliance; (4) upon which the plaintiff reasonably relied; and (5) which caused injury to the plaintiff." Wynn v. AC Rochester, 273 F.3d 153, 156 (2d Cir. 2001); see Solow v. Citigroup, Inc., 507 F. App'x 81, 83 (2d Cir. 2013) (same). Claims for fraud must also comply with the particularity requirements of Rule 9(b), "which requires that the plaintiff (1) detail the statements (or omissions) that the plaintiff contends are fraudulent, (2) identify the speaker, (3) state where and when the statements (or omissions) were made, and (4) explain why the statements (or omissions) are fraudulent." Landesbank Baden-Wurttemberg v. Goldman, Sachs & Co., 478 F. App'x 679, 681 (2d Cir. 2012) (quoting Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 187 (2d Cir. 2004)).
Plaintiff describes her claims as for "criminal fraud," Am. Compl. III ¶ 56, but as discussed supra Section II.B.3, Plaintiff cannot state a claim based on the criminal law.
Here, Plaintiff's allegations fail to state a claim for common law fraud and also do not meet the requirements of Rule 9(b). Plaintiff complains of allegedly false medical records without specifying the particular misrepresentations or omissions made in those records, and when they were made. She also did not address the issue of reliance or identify the injury the alleged acts caused.
To the extent Plaintiff intended to raise claims against Jersey City Medical Center (which was not named as a Defendant) or Albert Einstein for the alleged creation of "intentionally false records," Am. Compl. III ¶¶ 57-59, Plaintiff likewise failed to state what fraudulent misrepresentations were made or when, and thus has failed to state a claim.
Likewise, Plaintiff did not provide any factual support for her claim of fraudulent billing by the DOHMH, such as by identifying who was billed, on what dates, the fraudulent content of the bills, whether the billed were paid, and by whom they were paid. See generally In re Crazy Eddie Sec. Litig., 802 F. Supp. 804, 817 (E.D.N.Y. 1992) (dismissing a claim for fraudulent conveyance for failure to comply with Rule 9(b) in that the allegations did not "specify the date of the alleged fraudulent billing scheme, the identity of either the parties who agreed to it or the allegedly fraudulent bills, and the reasons why the services provided were of "no benefit" to [the party billed]"). Plaintiff asserts she was receiving Medicaid benefits at the time of her detention, Am. Compl. at 12, and she does not allege that she paid fraudulent bills or was otherwise injured. This Court respectfully recommends that Plaintiff's claim for fraud be dismissed for failure to state a claim.
As Plaintiff does not allege that she was fraudulently billed, she cannot raise this claim as pleaded. Plaintiff would lack standing to bring claims on behalf of Medicaid unless her claims were formulated as an exceptional qui tam action in which a party may make a claim on behalf of the government, such as under the False Claims Act, 31 U.S.C. § 3729 et seq. See generally Woods v. Empire Health Choice, Inc., 574 F.3d 92, 98 (2d Cir. 2009) ("There is[] no common law right to bring a qui tam action; rather, a particular statute must authorize a private party to do so."). As discussed infra Section II.B.7.a, Plaintiff specifically abandoned her False Claims Act claims when filing her Amended Complaint. Furthermore, a plaintiff must satisfy the particularity requirements of Rule 9(b) to state a claim under the False Claims Act, see U.S. ex rel. Kester v. Novartis Pharm. Corp., 23 F. Supp. 3d 242, 252 (S.D.N.Y. 2014), and, for the reasons stated above, Plaintiff has failed to do so.
6. Additional Deficiencies In Plaintiff's Pleadings Against The Individual Defendants
In addition to the reasons stated above for dismissing Plaintiff's claims, the Court also notes that in regard to the individual Defendants, Plaintiff's claims should be dismissed for the reasons discussed below.
a. Pleading Deficiencies As To The Individual Defendants
First, Plaintiff fails to adequately identify the purportedly unlawful acts taken by each individual Defendant. Plaintiff merely identifies the individual Defendants by their places of employment, see Am. Compl. III ¶¶ 2-47, without specifying the unlawful acts each Defendant took. For example, it is unknown which individual Defendants, if any, were involved in Plaintiff's alleged false imprisonment and the alleged assault. Similarly, it is unknown what involvement, if any, the named probation officers had in the events at issue. Plaintiff also names as a Defendant Mr. Carrow, who allegedly "reported to" the DOP; unlike Defendants Officers Lowney and Rubinkowksi, Plaintiff does not identify Mr. Carrow as an employee of the DOP. Am. Compl. III ¶ 36. In fact, Plaintiff filed a separate action against Mr. Carrow for his alleged actions in an apartment lockout. Radin v. Carrow, 38 Misc. 3d 132(A), 966 N.Y.S.2d 349 (1st Dep't 2013). It is unclear what, if any, actions he took that are relevant to this case. Moreover, Judge Gleeson warned Plaintiff that her original pleading was deficient for failing to provide "facts sufficient to allow each named defendant to have a fair understanding of what the plaintiff is complaining about and to know whether there is a legal basis for recovery," and required her to file an amended pleading that complied with Rule 8 and "set forth the specific factual allegations to support her claims against all named defendants." Order at 2-3, ECF No. 3. Notwithstanding that Plaintiff was on notice of her obligations under Rule 8, none of Plaintiff's subsequent submissions identified the relevant factual allegations as to each named Defendant, and thus this Court respectfully recommends that Plaintiff's claims against the Individual Defendants be dismissed.
Although Plaintiff's Amended Complaint provided more detail than her later pleadings, that pleading also failed to include factual allegations supporting Plaintiff's legal claims against each Defendant. For example, Plaintiff complains that Defendants Ms. Capone and Ms. Blau subjected her to unwanted psychiatric care, engaged in medical malpractice and created fraudulent records based on Ms. Capone's notations on two medical records "refused to sign" and "pt [patient] unable to sign," and Ms. Blau's signature that she had reviewed the latter document. Am. Compl. at 13; Am. Compl. Ex. 1 at 25, 27 (ECF No. 7-1). These allegations are not sufficient to state a cognizable claim under any of the legal theories Plaintiff advances.
b. Plaintiff's Claims Against The Federal Judges And Marshals
Second, although this Court respectfully recommends that Plaintiff's claims against the federal jurists and marshals be dismissed for the reasons articulated above, additionally, these claims should be dismissed on the basis of immunity.
As to the federal judges, Judge Ross previously dismissed Plaintiff's claims against two federal jurists on the basis of judicial immunity, see Order at 2-3, ECF No. 98, and the same reasoning applies to Plaintiff's claims against Judge Patterson, Judge Calabresi and Judge Restani related to their judicial actions. See Mireles v. Waco, 502 U.S. 9, 9, 11-12 (1991) (finding that "generally, a judge is immune from a suit for money damages"; "judicial immunity is not overcome by allegations of bad faith or malice"); Am. Compl. at 16 (claiming that Judge Patterson and "three judges from the Second Circuit Court of Appeals" failed to "uph[o]ld federal law in 2005"); see also Am. Compl. at 6-8.
Plaintiff's claims against these jurists may also be futile based on the statute of limitations, but as the nature of Plaintiff's claims against these Defendants is so unclear, the Court will not address this point.
The federal marshals' actions, which appear to be related to their investigation of a threat against a federal judge and related duties, are subject to qualified immunity. "Qualified immunity protects public officials from liability for civil damages when one of two conditions is satisfied: (a) the defendant's action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law." Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015) (quoting Russo v. City of Bridgeport, 479 F.3d 196, 211 (2d Cir. 2007)). Furthermore, "because qualified immunity protects officials not merely from liability but from litigation, [] the issue should be resolved when possible on a motion to dismiss, 'before the commencement of discovery,' to avoid subjecting public officials to time consuming and expensive discovery procedures." Id. at 97 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)); see Drimal v. Tai, 786 F.3d 219, 225 (2d Cir. 2015). As relevant to the present motion, the duties of the federal marshals include "[a]dministration and implementation of courtroom security requirements for the Federal judiciary" and "[p]rotection of Federal jurists." 28 C.F.R. § 0.111(d)-(e). Thus, in Bensam v. Bharara, No. 12 Civ. 5409 (ALC) (JLC), 2014 WL 1243790 (S.D.N.Y. Mar. 25, 2014), the court granted a motion to dismiss a pro se plaintiff's complaint where, assuming arguendo that the plaintiff had stated a constitutional claim, the actions of the federal marshals in requiring the plaintiff to show identification before returning her phone were subject to qualified immunity, as these actions were an objectively reasonable part of "their duties to secure the courthouse." Id. at *5; see generally Bowers v. United States, 931 F. Supp. 2d 358, 368 (D. Conn. 2013) (dismissing the complaint on the basis of qualified immunity as to federal marshals who detained the plaintiff during a search and seizure).
In this case, Plaintiff alleges that United States Marshal Shane Doyle ("Marshal Doyle"), who is no longer a named Defendant, see infra note 37, "defam[ed] me as threatening to the life of a federal judge on or about 3/18/11" and that unidentified marshals may not have delivered "a large poster" that Plaintiff asked the marshals to give to Judge Patterson. See Am. Compl. at 8-9. As to Marshals Howard, Wartofsky and Robinson, Plaintiff has not identified any action specific to these Defendants; thus, Plaintiff has not identified any action violating clearly established law. Plaintiff's speculation that unnamed marshals may not have delivered her poster to Judge Patterson does not state a violation of law. As to Marshal Doyle, he is no longer a party to this action and, in any event, Plaintiff's allegation of defamation is a legal conclusion lacking factual allegations concerning actions Marshal Doyle allegedly took. Plaintiff admits that the alleged defamatory statement "was never discussed with me," Am. Compl. at 8 (emphasis removed), and Plaintiff has not identified to whom (if anyone) the statement was made. Moreover, it would be objectively reasonable for Marshal Doyle to investigate an actual or perceived threat to a federal judge, as part of the duties of a federal marshal.
Plaintiff is reminded that filings to the Court are to be made with the Clerk of Court.
For these reasons, this Court respectfully recommends that Plaintiff's claims against the federal judges be dismissed on the grounds of judicial immunity and her claims against the federal marshals be dismissed on the grounds of qualified immunity.
c. Plaintiff's Claims Against The Non-moving Defendants
As previously noted, the Non-moving Defendants, who have not joined in the motions to dismiss, include: Dr. Tun, Mr. Yousef, Dr. Morales, Dr. Gome, Dr. Lampske, Physician Assistant Charles, Mr. Lowney, Officer Rubinkowski, Mr. Carrow, Judge Patterson, Judge Calabresi, Judge Restani, Marshal Howard, Marshal Wartofsky, and Marshal Robinson. Notwithstanding the Non-moving Defendants' failure to appear, the claims related to these Defendants should be dismissed.
Additionally, the Non-moving Defendants were not properly served. First, contrary to Plaintiff's assertion that the City's counsel agreed to accept service for Defendants Dr. Tun, Mr. Yousef, Dr. Morales, Dr. Gome, Dr. Lampske, and Physician Assistant Charles, see Aff. of Serv., ECF No. 93 at 2, the City repeatedly informed Plaintiff that it does not represent these individuals and that "[n]ot all Defendants have been served," see Letter at 1 n.1, ECF No. 79; see also Letter, ECF No. 72; 11/12/2013 Order, ECF; Letter, ECF No. 70 at 2.
Second, as to Defendant Judge Patterson, who was added to Plaintiff's Amended Complaint, as well as Marshal Doyle, who was named only in the Amended Complaint and not the subsequent pleadings, there is no indication on the docket that Plaintiff ever served these individuals in accordance with Rule 4, because the Amended Complaint was served before the Amended Summons was issued, see Am. Summons, ECF No. 18, and the Amended Complaint was served on a mailroom clerk at 500 Pearl Street without it also being mailed pursuant to N.Y. C.P.L.R. 308(2), see Aff. of Serv., ECF No. 10. Indeed, the United States Attorney's Office for the Eastern District of New York advised Plaintiff of her failure to effect proper service on Judge Patterson and Marshal Doyle. Letter, ECF No. 15 at 1.
Third, as to Defendants Mr. Lowney, Officer Rubinkowski, and Mr. Carrow, who were first named in the Second Amended Complaint, as well as Defendants Judge Calabresi, Judge Restani, Marshal Howard, Marshal Wartofsky, and Marshal Robinson, who were first named in the Corrected Second Amended Complaint, no amended summons was ever issued on these pleadings. The Court brought this issue to Plaintiff's attention and instructed her to file proof of service of the amended summons and Corrected Second Amended Complaint on all Defendants, in accordance with Rule 4 or (where appropriate) Rule 5, see 6/20/2014 Order, but to date, Plaintiff has failed to obtain an amended summons per Rule 4(b).
Per Rule 4(m), "[i]f a defendant is not served within 120 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time." Fed. R. Civ. P. 4(m). Plaintiff was put on notice of Rule 4(m) by the Order of Magistrate Judge Gold, who was then assigned to the case. Order, ECF No. 4; see Order, ECF No. 6. In addition, on June 20, 2014, this Court ordered Plaintiff to file proof of service under Rule 4, 6/20/2014 Order, ECF; to date, she has failed to do so.
"[A] district court may dismiss a complaint sua sponte for the failure to state a claim where a plaintiff was given notice of the grounds for dismissal and an opportunity to be heard." Martinez v. Queens Cnty. Dist. Atty., No. 12 Civ. 06262 (RRM) (RER), 2014 WL 1011054, at *14 n.12 (E.D.N.Y. Mar. 17, 2014) (dismissing claims against non-moving defendants sua sponte where "the numerous motions to dismiss filed by other defendants provide[d] sufficient notice," plaintiff responded to those motions, and plaintiff "already had two opportunities to amend his complaint"), aff'd, 596 F. App'x 10 (2d Cir. 2015) cert. denied sub nom. Martinez v. Brown, 135 S. Ct. 1855 (2015); see Wachtler v. Cnty. of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994) (affirming the sua sponte dismissal of the pro se plaintiff's claims against a non-moving defendant where the plaintiff had notice and an opportunity to be heard on other defendants' motions); Thompson v. Accent Capital, No. 11 Civ. 00069 (AWT), 2011 WL 3651848, at *5 (D. Conn. Aug. 18, 2011) (dismissing, sua sponte, claims against non-moving defendants that were related to claims against the moving defendants), aff'd, 491 F. App'x 264 (2d Cir. 2012).
Here, it would be appropriate for the District Court to sua sponte dismiss Plaintiff's claims against the Non-moving Defendants. At the start of this case, Judge Gleeson's Order requiring Plaintiff to file an Amended Complaint put Plaintiff on notice that her claims against each Defendant might be dismissed for failure to comply with Rule 8(a). As in Martinez, Wachtler, and Thompson, the filing of motions to dismiss by the City Defendants, Einstein Defendants and Psychiatrist Defendants also provided Plaintiff with sufficient notice that her claims against the Non-moving Defendants might also be dismissed, particularly in light of Plaintiff's multiple prior amended pleadings. Plaintiff had an opportunity to be heard and, in fact, submitted an opposition brief of twenty-two pages, single-spaced, plus sixteen pages of exhibits, in addition to the other letters and pleadings considered herein. Plaintiff's submissions included specific arguments about Judge Patterson, a Non-moving Defendant, and also included arguments concerning her detention that apply generally to many of the other Non-moving Defendants. Pl. Opp. Mem. 4, 14. That Plaintiff included a Non-moving Defendant among the very few Defendants whose actions were specifically discussed in her opposition papers demonstrates her understanding that the Court would consider all of her claims. Ultimately, despite having filed four pleadings in this action, Plaintiff failed to state a claim against each of the Non-moving Defendants, as discussed supra. In these circumstances, this Court respectfully recommends a sua sponte dismissal of the claims against the Non-moving Defendants and, for the reasons discussed infra, Section II.B.8, no opportunity to replead is warranted.
Furthermore, as discussed supra note 34, Plaintiff has continued to insist that certain Non-moving Defendants are represented by the City, despite being informed that they are not. It follows that Plaintiff's opposition papers to the City Defendants' motion would also address these Non-moving Defendants.
7. Plaintiff's Claims Made Only In Past Pleadings Should Be Deemed Abandoned Or Dismissed
Over the course of her several amended pleadings, Plaintiff raised claims that are not present in the current pleading. As discussed below, such claims should be deemed abandoned and dismissed.
a. Claims Raised Only In The Original Complaint
Plaintiff's original complaint asserted claims:
under state and Federal False Claims Acts, fraud, conspiracy to commit fraud, defamation, false light, the federal laws that govern administration of federal student loans, the federal laws that govern administration of federal Pell grants, New York State TAP grants, Medicaid fraud involving contributions of federal monies to state Medicaid programs, health plan fraud, discrimination, hate crimes, and other state and federal laws including Professional Misconduct on the part of Physicians pursuant to New York State law . . . . .Compl. at 3, ECF No. 1. With the exceptions of the fraud, defamation, and professional misconduct allegations, Plaintiff did not raise any of these purported claims in her subsequent pleadings.
After Judge Gleeson required Plaintiff to amend her "confusing" and "unclear" pleading, Order at 2, ECF No. 3, Plaintiff filed an Amended Complaint that abandoned all of the above claims with the exception of her claims for defamation, Am. Compl., ECF No. 7. Plaintiff stated,
It is not my purpose, at this point in time, to litigate all my claims, though I could. For now, it is my purpose to stop the harm viciously directed at me by filing this amended complaint against [the defendants] for defaming me and for portraying me in a false light. I anticipate that I will be litigating my claims for fraud, false claims, and other claims in another separate action.Am. Compl. at 1.
This explanation demonstrates Plaintiff's clear intent (at that time) to pursue only her defamation claim, and to abandon the myriad other claims asserted in her original pleading. "A party may voluntarily drop claims by choosing not to include them in a proposed amended pleading" and "[i]n such a circumstance, it is appropriate for the Court to dismiss the abandoned claims with prejudice." Allen v. N.Y.C. Hous. Auth., No. 10 Civ. 168 (CM) (DF), 2012 WL 4794590, at *4 (S.D.N.Y. Sept. 11, 2012) (dismissing the claims that the pro se plaintiff "unequivocally" abandoned); see Omosefunmi v. Weiss, 198 F.3d 234 (2d Cir. 1999) (finding that "even under the relaxed pleading standard afforded to pro se litigants," an "express disavowal" of a claim "requires that that claim be deemed abandoned"). Therefore, notwithstanding Plaintiff's status as a pro se litigant, this Court respectfully recommends that her purported claims "under state and Federal False Claims Acts"; for "conspiracy to commit fraud"; under "the federal [and state] laws that govern administration of federal student loans, . . . federal Pell grants, [and] New York State TAP grants; for "Medicaid fraud involving contributions of federal monies to state Medicaid programs"; for "health plan fraud"; and for "discrimination[ and] hate crimes," Compl. at 3, be deemed abandoned and dismissed.
Plaintiff reasserted her claims for fraud and professional misconduct in her Corrected Second Amended Complaint, and they are addressed supra, Sections II.B.5.c and II.B.5.d.ii.
b. Plaintiff's Defamation Claims
In her Amended Complaint, Plaintiff raised defamation claims that were not included in Plaintiff's subsequent pleadings. Given Plaintiff's demonstrated understanding that any claims she intended to pursue must be stated in her operative pleading, it would be appropriate to deem her defamation claim abandoned, notwithstanding that Plaintiff has continued to complain in her opposition papers that various individuals (Defendants and nonparties) "lied about [her]," which may relate to her prior defamation claims. Pl. Opp. Mem. 8, 12. Claims that were "clearly pled in the original complaint and were equally clearly abandoned when [the] plaintiffs filed an amended complaint . . . may not [] be resuscitated in opposition papers." Pittman v. City of New York, No. 14 Civ. 4140 (ARR) (RLM), 2014 WL 7399308, at *9 (E.D.N.Y. Dec. 30, 2014).
Plaintiff's Amended Complaint also added four defendants who were not included in any subsequent pleading: Marshal Doyle, Dr. Carreri (first name not provided), Dr. Margaret Goni ("Dr. Goni"), and Dr. Janet Carr ("Dr. Carr"). Compare Am. Compl. at 3 with Am. Compl. II and Am. Compl. III. The District Court previously held that Dr. Carreri, Dr. Goni and Dr. Carr were properly terminated as defendants in this case after "they were not named as defendants in plaintiff's Corrected Second Amended Complaint." Order at 2-3, ECF No. 106. The same reasoning applies to Marshal Doyle. In any event, as discussed supra, Section II.B.6.b, Plaintiff's claims as against Marshal Doyle would be futile based on the qualified immunity afforded to United States Marshals in their duties to protect the federal judiciary.
In any event, these claims should be dismissed because Plaintiff failed to state a claim for defamation. "New York law allows a plaintiff to recover for defamation by proving that the defendant published to a third party a defamatory statement of fact that was false, was made with the applicable level of fault, and either was defamatory per se or caused the plaintiff special harm, so long as the statement was not protected by privilege." Chandok v. Klessig, 632 F.3d 803, 814 (2d Cir. 2011); see Thorsen v. Sons of Norway, 996 F. Supp. 2d 143, 163-65 (E.D.N.Y. 2014), reconsideration denied, No. 13 Civ. 2572 (PKC) (RML) (E.D.N.Y. May 14, 2014) (ECF No. 66); Officemax Inc. v. Cinotti, 966 F. Supp. 2d 74, 79 (E.D.N.Y. 2013). "New York law requires a plaintiff to set forth 'the particular words complained of . . . in the complaint[.]'" Rizzo v. Edison, Inc., 172 F. App'x 391, 395 (2d Cir. 2006) (quoting N.Y. C.P.L.R. § 3016(a)). However, Plaintiff's claim is governed by Rule 8, under which "[a] defamation claim is only sufficient if it adequately identifies the purported communication, and an indication of who made the communication, when it was made, and to whom it was communicated." Vanderwoude v. City of New York, No. 12 Civ. 9046 (KPF), 2014 WL 2592457, at *19 (S.D.N.Y. June 10, 2014) (quoting Thai v. Cayre Grp., Ltd., 726 F. Supp. 2d 323, 329 (S.D.N.Y. 2010). "To be actionable, [] the statement must do more than cause discomfort or affront; the statement is measured not by the sensitivities of the maligned, but the critique of reasonable minds that would think the speech attributes odious or despicable characterizations to its subject." Chau v. Lewis, 771 F.3d 118, 127 (2d Cir. 2014).
Defamation per se is limited to false statements "(i) charging plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, business or profession; (iii) that plaintiff has a loathsome disease; or (iv) imputing unchastity to a woman." Zherka v. Amicone, 634 F.3d 642, 645 n.6 (2d Cir. 2011) (quoting Liberman v. Gelstein, 80 N.Y.2d 429, 435, 590 N.Y.S.2d 857, 860 (1992)). "Special damages consist of 'the loss of something having economic or pecuniary value which must flow directly from the injury to reputation caused by the defamation[.]'" Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163, 179 (2d Cir. 2000) (quoting Matherson v. Marchello, 100 A.D.2d 233, 235, 473 N.Y.S.2d 998, 1000 (2d Dep't 1984)); see Yong Ki Hong v. KBS Am., Inc., 951 F. Supp. 2d 402, 433 (E.D.N.Y. 2013) (special damages are "pecuniary or economic losses"). Furthermore, "New York affords qualified protection to defamatory 'communication[s] made by one person to another upon a subject in which both have an interest.'" Albert v. Loksen, 239 F.3d 256, 272 (2d Cir. 2001) (quoting Stillman v. Ford, 22 N.Y.2d 48, 53, 238 N.E.2d 304, 306 (1968)).
Notwithstanding the more lenient pleading standard under Rule 8, Plaintiff has failed to state a claim for defamation. Although Plaintiff's defamation claims are not clearly articulated, the Court understands her concerns to fall into three categories of allegedly false statements: medical records identifying her as a "patient," see, e.g., Am. Compl. 1-2, 9-11, 15; allegations that she threated the life of Judge Patterson and other jurists, see, e.g., Am. Compl. 2, 8-11; and statements made about Plaintiff during various court proceedings, see, e.g, Pl. Opp. Mem. 12. For some of her allegations of defamation, Plaintiff quoted the allegedly defamatory statement. See, e.g., Am. Compl. 11 (quoting Defendant Dr. Tun as writing in a medical record "10/2/08 As per Stacy pt has been mailing threatening letters to Judge Rodriguez"). For the remaining allegations, Plaintiff described the allegedly defamatory statement more generally. See, e.g., Am. Compl. 8-10 (stating that Marshal Doyle, who is no longer a named Defendant, "defam[ed] me as threatening to the life of a federal judge on or about 3/18/11"; Defendant Elmhurst "defam[ed] me as threatening to the life of a federal judge on or about 3/18/11"; and Defendant "Judge Patterson defamed me on or about 3/18/11 as threatening to his life"). In other instances, Plaintiff merely states that an individual "lied." See, e.g., Pl. Opp. Mem. 12 (nonparty "John Scarfone lied about me in federal court in 2006 . . . .").
Plaintiff's allegations provide some, but not all, of the necessary facts identifying what was purportedly said or written; who made the statement; when it was made; and to whom it was made. Moreover, Plaintiff has not made any allegations that would support the necessary element of per se defamation or special damages, particularly as to being named a "patient." Additionally, some of the alleged statements appear to be protected by qualified immunity, see supra Section II.B.6.b, or by privilege, although the Court's analysis of this point is hampered by Plaintiff's frequent failure to identify the persons making and receiving each communication.
A qualified privilege may well apply to statements made between medical professionals treating Plaintiff, as they would share an interest in Plaintiff's allegedly threatening behavior. See generally Albert, 239 F.3d at 272. As to statements made in court, "New York State law's 'litigation privilege' provides that '[s]tatements made by parties, attorneys, and witnesses in the course of a judicial or quasi-judicial proceeding are absolutely privileged, notwithstanding the motive with which they are made, so long as they are material and pertinent to the issue to be resolved in the proceeding.'" Officemax Inc., 966 F. Supp. 2d at 79 (quoting Bisogno v. Borsa, 101 A.D.3d 780, 781, 954 N.Y.S.2d 896, 896 (2d Dep't 2012)).
Thus, this Court respectfully recommends that the District Court dismiss Plaintiff's defamation claims on the grounds that they were abandoned and because they fail to state a claim on which relief may be granted.
8. Plaintiff Should Not Be Permitted To Amend Her Pleadings
Notwithstanding this Court's and the District Court's prior orders denying Plaintiff leave to file a fifth pleading, Plaintiff reiterates her request to file another amended complaint. See, e.g., Pl. Opp. Mem. 19.
Plaintiff also repeats her prior assertion that she is entitled to "an immediate ruling in [her] favor with prejudice" because exhibits from her Amended Complaint were allegedly "changed/tampered with"—meaning that the spiral bound version she submitted to the Court as a courtesy copy, rather than the unbound version allegedly provided to the Clerk's Office, was filed on the docket. See, e.g., Pl. Opp. Mem. 20; Letters, ECF Nos. 125-26, 129-131. Plaintiff alleges that some of the exhibits in her courtesy copy lacked the all of the handwritten comments and "markings" she put on the unbound version. Pl. Opp. Mem. 20. Plaintiff is informed that she may not submit, as a courtesy copy, a document that differs from her filed submission. In addition, Plaintiff had ample opportunity to resubmit her exhibits with her preferred comments and markings. See, e.g., Letter, ECF Nos. 125 (attaching 42 pages of exhibits), 128 (attaching 65 pages of exhibits), 131 (attaching 81 pages of exhibits). In any event, this issue was previously addressed by both the undersigned and the District Court, and need not be addressed again. See 10/7/2014 Order, ECF (denying Plaintiff's request for summary judgment based on this issue); 10/30/2014 Order, ECF (same); 11/6/2014 Order, ECF (the District Judge found no error in the undersigned's decisions on this issue).
"District courts generally should not dismiss a pro se complaint 'without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.'" Yong Chul Son v. Chu Cha Lee, 559 F. App'x 81, 83 (2d Cir. 2014) (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)). "Leave to amend is not necessary, however, when it would be futile." Id. (affirming dismissal of a pro se complaint without requiring an opportunity to amend); see Obot v. Sallie Mae, --- F.3d ---, No. 14-853, 2015 WL 548202, at *2 (2d Cir. Feb. 11, 2015) (same, where the pro se plaintiff's proposed amendments "failed to allege a basis for any of his additional claims sufficient to meet the Rule 8(a)(2) pleading requirements, much less plead facts sufficient to survive a Rule 12(b)(6) motion to dismiss"); Cuoco, 222 F.3d at 112 (same where even a liberal reading of the complaint does not suggest "that the plaintiff has a claim that she has inadequately or inartfully pleaded and that she should therefore be given a chance to reframe"). Courts also consider whether the pro se plaintiff was already provided opportunities to amend his or her complaint. See Best v. City of New York, No. 12 Civ. 7874 (RJS) (SN), 2014 WL 163899, at *11-12 (S.D.N.Y. Jan. 15, 2014) (same where the pro se plaintiff "has already been granted ample opportunity to state claims against these defendants"); Payne v. Malemathew, No. 09 Civ. 1634 (CS), 2011 WL 3043920, at *6 (S.D.N.Y. July 22, 2011) (granting a motion to dismiss without permitting the pro se plaintiff to file a second amended complaint where the plaintiff "has repeatedly failed to cure the defects in his claims despite having received detailed instructions and despite the bases of the dismissals having been specified in advance, and he has not identified any additional facts he could advance now that would address these defects").
As described above, after Plaintiff filed an initial deficient pleading, the District Court explained in detail the requirements for Plaintiff's amended pleading. After Plaintiff requested leave to file a second amended pleading, Plaintiff repeatedly requested—and was granted—substantial extensions of her time to amend. The Court also granted her request to file a third amended pleading but it warned Plaintiff that "[n]o further amendments or corrections will be allowed absent exigent circumstances." 6/5/2014 Order, ECF. This Court and the District Court thereafter denied Plaintiff's multiple requests to amend her complaint to add as a defendant the Einstein Defendants' counsel, Daniel Riesel ("Mr. Riesel"), 8/29/2014 Order, ECF; 10/28/2014 Order, ECF; 11/6/2014 Order, ECF; to add as defendants other new individuals, including judges, Plaintiff's prior attorneys, and several Assistant District Attorneys, 10/7/2014 Order, ECF; 11/6/2014 Order, ECF; and to add new claims, such as for malicious prosecution, claims concerning a federal student loan program, and claims related to the alleged lack of a warrant for her arrest in the prior criminal action, 10/7/2014 Order, ECF; 11/6/2014 Order, ECF. As the District Court explained to Plaintiff, she "has had ample opportunity to amend" since this action was initiated on March 15, 2012, and "there is no reason to permit further amendment." 11/6/2014 Order, ECF.
Furthermore, to the extent Plaintiff alleges she was "fraudulently induc[ed]" to enroll at Yeshiva University, and was not provided support for her research project, see, e.g., Pl. Opp. Mem. 21, these claims were dismissed with prejudice in Radin v. Albert Einstein College of Medicine of Yeshiva University, No. 04 Civ. 704 (RPP), 2005 WL 1214281, at *19 (S.D.N.Y. May 20, 2005) (dismissing Plaintiff's claims against Albert Einstein, Yeshiva University Dr. David, Dr. Riechgott, Dr. Bennett and others for breach of contract, breach of fiduciary duty, tortious interference with precontractual relations, fraud, and violations of New York General Business Law § 349, the New York State Human Rights Law, RICO, Title IX and § 1983); see Einstein Mem. 1, 13-14.
Given that Plaintiff was provided ample time and opportunity to amend her pleadings on multiple occasions; she was on notice that no further pleadings would be permitted absent exigent circumstances; and she has failed to raise any factual allegations that might rehabilitate her prior claims or raise viable new claims, any further amendment would be futile as well as a waste of Defendants' and the Court's resources. Indeed, the Court brought the deficiencies in Plaintiff's pleadings to her attention in the Court's decision on Plaintiff's request for the appointment of pro bono counsel. In that Order, the Court warned Plaintiff that her pleadings were "too vague," and specifically identified many of deficiencies discussed above, including Plaintiff's failure to include "an intelligible explanation of why her imprisonment was purportedly unlawful, what the attempted psychiatric care involved, who assaulted her, or how she was assaulted"; specify "the actions taken by the individual Defendants that are relevant to each claim"; and support her "conclusory allegations that these acts were unlawful." Order, ECF No. 124 at 6-7, 7 n.19-20. Nevertheless, Plaintiff failed to counter or remedy these deficiencies in her opposition papers on this motion. This Court respectfully recommends that Plaintiff's claims be dismissed without granting Plaintiff leave to file a fifth version of her Complaint.
III. CONCLUSION
For the foregoing reasons, this Court respectfully recommends that the District Court grant Defendants' motions to dismiss in their entirety, sua sponte grant dismissal as to the Non-moving Defendants, and:
(1) dismiss with prejudice Plaintiff's claims against Defendants DOP, Rikers MHD and Elmhurst, as they are entities that cannot be sued, and construe the claims against these Defendants as claims against the City;
(2) dismiss with prejudice, for failure to state a claim, Plaintiff's claims under § 1983 for false imprisonment, excessive force or failure-to-protect, and unwanted psychiatric care; §§ 1985, 1986 and 1988; 18 U.S.C. §§ 4, 241, 242, 245, 249, and 1589; and Plaintiff's equal protection claim against "local authorities";
(3) exercise supplemental jurisdiction over Plaintiff's state law claims;
(4) dismiss with prejudice Plaintiff's state law claims as to the City and the City Defendants sued in their official capacities due to Plaintiff's failure to file and serve a notice of claim;
(5) dismiss with prejudice, for failure to state a claim, Plaintiff's claims under New York Education Law § 6530, and under New York common law for medical malpractice, negligence and fraud;
(6) dismiss with prejudice the Corrected Second Amended Complaint for failure to comply with Rule 8(a) as to the individual Defendants;
(7) dismiss with prejudice Plaintiff's claims against the federal judges on the basis of judicial immunity and against the federal marshals on the basis of qualified immunity;
(8) deem Plaintiff's claims raised in the original Complaint and expressly disclaimed in the Amended Complaint—including her claims "under state and Federal False Claims Acts"; for "conspiracy to commit fraud"; under "the federal [and state] laws that govern administration of federal student loans, . . . federal Pell grants, [and] New York State TAP grants; for "Medicaid fraud involving contributions of federal monies to state Medicaid programs"; for "health plan fraud"; and for "discrimination[ and] hate crimes," Compl. at 3—to be abandoned and dismiss these claims with prejudice;
(9) deem Plaintiff's defamation claim, raised only in the Amended Complaint, to be abandoned and dismiss this claim with prejudice for failure to state a claim; and
(10) deny Plaintiff's request to further amend her pleadings.
IV. OBJECTIONS
This Report and Recommendation will be filed electronically, as pro se Plaintiff filed her consent to electronic service. Consent Form, ECF No. 174. The Court will also mail a copy of the Report and Recommendation to Plaintiff's last known address. Written objections to this Report and Recommendation must be filed with the Clerk of Court and in accordance with the Individual Rules of the District Judge within fourteen days of service of this report. 28 U.S.C. § 636(b)(1); Fed. R. Civ. Proc. 72(b). A failure to file objections within the specified time waives the right to appeal any order or judgment entered based on this report and recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. Proc. 72(b); see Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008). Dated: Brooklyn, New York
July 17, 2015
/s/_________
VERA M. SCANLON
United States Magistrate Judge