Phelps v. Bosco et al

MOTION for Summary Judgment

N.D.N.Y.September 29, 2016

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK -------------------------------------------------------------- Frederick H. Phelps, Plaintiff, Civil Action No. 1:13-CV-1510 v. (GTS/CFH) Maureen Bosco, Executive Director, Central New York Psychiatric Center et al., Defendants. -------------------------------------------------------------- NOTICE OF MOTION MOTION BY: Defendants Federal Bureau of Investigation (“FBI”) Criminal Justice Information Services; National Instant Background Check System; United States Department of Justice; Loretta E. Lynch, Attorney General of the United States; and James B. Comey, FBI Director (collectively, “Federal Defendants”) DATE, TIME AND PLACE: November 3, 2016, 10:00 a.m. U.S. Courthouse Syracuse, New York SUPPORTING PAPERS: Memorandum of Law Exhibits 1-2 Statement of Material Facts Certification Declaration of Daniel Riess RELIEF SOUGHT: Entry of Summary Judgment for Federal Defendants on Plaintiff’s First Claim for Relief PAPERS IN OPPOSITION: To be served on or before October 17, 2016 pursuant to L.R. 7.1 Dated: September 29, 2016 Respectfully submitted, BENJAMIN C. MIZER Principal Deputy Assistant Attorney General Case 1:13-cv-01510-GTS-CFH Document 79 Filed 09/29/16 Page 1 of 2 RICHARD S. HARTUNIAN United States Attorney CHARLES E. ROBERTS Assistant United States Attorney /s/ Daniel Riess e JOHN R. TYLER Assistant Branch Director DANIEL RIESS (Bar No. 518689) Trial Attorney U.S. Department of Justice Civil Division, Rm. 6122 20 Massachusetts Avenue, NW Washington, D.C. 20530 Telephone: (202) 353-3098 Fax: (202) 616-8460 Email: Daniel.Riess@usdoj.gov Attorneys for Federal Defendants To: Lewis B. Oliver, Jr., Esq. (via ECF) Oliver Law Office 156 Madison Avenue Albany, New York 12202 Case 1:13-cv-01510-GTS-CFH Document 79 Filed 09/29/16 Page 2 of 2 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK -------------------------------------------------------------- Frederick H. Phelps, Plaintiff, Civil Action No. 1:13-CV-1510 v. (GTS/CFH) Maureen Bosco, Executive Director, Central New York Psychiatric Center et al., Defendants. -------------------------------------------------------------- FEDERAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S FIRST CLAIM FOR RELIEF Pursuant to Fed. R. Civ. P. 56, Defendants Federal Bureau of Investigation (“FBI”) Criminal Justice Information Services; National Instant Background Check System; United States Department of Justice; Loretta E. Lynch, Attorney General of the United States; and James B. Comey, FBI Director1 (collectively, “Federal Defendants”) hereby move this Court to enter summary judgment in their favor on Plaintiff’s first claim for relief. A memorandum of law, statement of material facts, certification, declaration, and exhibits accompany this motion. Dated: September 29, 2016 Respectfully submitted, BENJAMIN C. MIZER Principal Deputy Assistant Attorney General RICHARD S. HARTUNIAN United States Attorney CHARLES E. ROBERTS Assistant United States Attorney 1 Pursuant to Federal Rule of Civil Procedure 25(d)(1), Loretta E. Lynch and James B. Comey are substituted for their respective predecessors, Eric Holder, Attorney General of the United States; and Robert Mueller III, FBI Director. Case 1:13-cv-01510-GTS-CFH Document 79-1 Filed 09/29/16 Page 1 of 2 /s/ Daniel Riess e JOHN R. TYLER Assistant Branch Director DANIEL RIESS (Bar No. 518689) Trial Attorney U.S. Department of Justice Civil Division, Rm. 6122 20 Massachusetts Avenue, NW Washington, D.C. 20530 Telephone: (202) 353-3098 Fax: (202) 616-8460 Email: Daniel.Riess@usdoj.gov Attorneys for Federal Defendants Case 1:13-cv-01510-GTS-CFH Document 79-1 Filed 09/29/16 Page 2 of 2 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK -------------------------------------------------------------- Frederick H. Phelps, Plaintiff, Civil Action No. 1:13-CV-1510 v. (GTS/CFH) Maureen Bosco, Executive Director, Central New York Psychiatric Center et al., Defendants. -------------------------------------------------------------- MEMORANDUM IN SUPPORT OF FEDERAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S FIRST CLAIM FOR RELIEF Case 1:13-cv-01510-GTS-CFH Document 79-2 Filed 09/29/16 Page 1 of 13 i TABLE OF CONTENTS INTRODUCTION ...........................................................................................................................1 STATUTORY AND REGULATORY BACKGROUND ...............................................................1 I. The Federal Gun Control Act ..............................................................................................1 II. New York State Mental Hygiene Law ................................................................................3 FACTUAL BACKGROUND ..........................................................................................................4 PROCEDURAL BACKGROUND ..................................................................................................7 ARGUMENT ...................................................................................................................................8 The Court Should Enter Judgment for the Federal Defendants on Plaintiff’s First Claim Because Plaintiff Was Involuntarily Committed in 2005 .............................................8 CONCLUSION ..............................................................................................................................11 Case 1:13-cv-01510-GTS-CFH Document 79-2 Filed 09/29/16 Page 2 of 13 1 INTRODUCTION Plaintiff was involuntarily committed to Columbia Memorial Hospital in 2005. Following his release, Plaintiff sought to purchase a firearm, but the purchase was denied by the National Instant Criminal Background Check System (“NICS”). Plaintiff has brought this suit claiming, inter alia, that under federal law, he was not prohibited from possessing a firearm. This claim has no merit. The Gun Control Act prohibits individuals who have been involuntarily committed to a mental institution from possessing firearms. As explained below, Plaintiff remains under a firearms disability, and accordingly, NICS properly denied Plaintiff’s application for a firearm. The Court should thus enter summary judgment for the Federal Defendants as to Plaintiff’s first claim for relief.1 STATUTORY AND REGULATORY BACKGROUND I. The Federal Gun Control Act The Gun Control Act of 1968, as amended, 18 U.S.C. §§ 921-931 (“the Act”) imposes a comprehensive, federal regulatory scheme over the manufacture and distribution of firearms and ammunition. Congress’s “principal purpose” in enacting federal gun control legislation “was to curb crime by keeping firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency.” United States v. Huddleston, 415 U.S. 814, 824 (1974) (citation and internal punctuation omitted). The Act imposes restrictions on the receipt, possession, shipment, and transfer of firearms and ammunition in or affecting interstate or foreign commerce. Under the Act, it is unlawful for “any person … who has been committed 1 The only cause of action asserted by Plaintiff against the Federal Defendants is his first claim for relief. Case 1:13-cv-01510-GTS-CFH Document 79-2 Filed 09/29/16 Page 3 of 13 2 to a mental institution” to ship, transport, possess, or receive any firearm in interstate or foreign commerce. 18 U.S.C. § 922(g)(4). In 1993, the Brady Act amended the Act to require background checks of persons attempting to purchase firearms, in order to prevent transfers to individuals whom the Gun Control Act or state law bars from possessing firearms. See H.R. Rep. 103-344 at 7 (1993), reprinted in 1993 U.S.C.C.A.N. 1984. The Brady Act directed the Attorney General to establish and operate a nationwide background check system that licensed firearms dealers could contact, by phone or electronically, to be informed whether information in the system indicates that transfer of a firearm to a particular individual would be prohibited. See 18 U.S.C. §§ 922(t)(1) & (t)(2). The Attorney General established the NICS, see 28 C.F.R. § 25.1 et seq., and assigned management of the NICS to the Federal Bureau of Investigation (“FBI”). See 28 C.F.R. § 25.3. During a NICS inquiry, federal firearms licensees collect information from each potential purchaser, including name, sex, race, date of birth, and state of residence. See 28 C.F.R. § 25.7(a). Before transferring a gun, a federal firearms licensee must submit this information, by phone or electronically, to the NICS via the FBI or a point-of-contact state agency. A background check is then performed using this information. The purpose of the check is to determine whether the individual attempting to purchase a firearm falls into one of the categories of persons prohibited from receiving or possessing firearms under federal or state law. See id. § 25.1. If the background check reveals information demonstrating that either state or federal law prohibits the transfer, the transfer is denied; however, if there is no information demonstra- ting that a person is prohibited, the transfer is allowed to proceed. See 18 U.S.C. § 922(t); 28 C.F.R. § 25.6(c). Case 1:13-cv-01510-GTS-CFH Document 79-2 Filed 09/29/16 Page 4 of 13 3 Section 925A of the Act provides that a person wrongly denied the ability to purchase a firearm may attempt to correct an erroneous denial administratively or may bring suit against the United States to correct erroneous information contained in the NICS database or to obtain approval of the transfer of the firearm. 18 U.S.C. § 925A. Following an administrative appeal, Plaintiff brought this suit pursuant to this provision. II. New York State Mental Hygiene Law Article 9 of the State of New York’s Mental Hygiene Law (“Mental Hygiene Law”) governs hospitalization of mentally ill persons. See N.Y. Mental Hyg. §§ 9.01 et seq. Section 9.39 of the Mental Hygiene Law is entitled: “Emergency admissions for immediate observation, care, and treatment.” Under this provision, a hospital “may receive and retain therein as a patient for a period of fifteen days any person alleged to have a mental illness for which immediate observation, care, and treatment in a hospital is appropriate and which is likely to result in serious harm to himself or others.” Id. § 9.39(a). “[L]ikel[y] to result in serious harm” means a substantial risk of either “physical harm to himself as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that he is dangerous to himself” or “physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm.” Id. A hospital may admit a person under this section only if a staff physician determines, after examining the person, that he or she has a mental illness as to which immediate hospitalization is appropriate, and that is likely to result in serious harm to himself or others. Id. Following admission, the patient must be discharged within forty-eight hours unless a second physician who is a member of the hospital’s psychiatric staff certifies that the patient is in need of involuntary care and treatment. Id. Case 1:13-cv-01510-GTS-CFH Document 79-2 Filed 09/29/16 Page 5 of 13 4 A person admitted under Section 9.39 must be served, when admitted, with written notice of his status and of his right to receive a hearing if requested. Id. The right to a hearing is as follows: If at any time after admission, the patient, any relative, friend, or the mental hygiene legal service gives notice to the director in writing of request for court hearing on the question of need for immediate observation, care, and treatment, a hearing shall be held as herein provided as soon as practicable but in any event not more than five days after such request is received, except that the commencement of such hearing may be adjourned at the request of the patient. Id. The hospital must also provide written notice of the patient’s status and his rights to New York’s Mental Hygiene Legal Service. Id. Article 13 of the Mental Hygiene Law requires the State of New York to establish an administrative process allowing a person who has been disqualified from possessing firearms because of an involuntary commitment to a mental institution to petition for relief. N.Y. Mental Hyg. § 13.09(g)(2). The State of New York has established such a process. See 14 N.Y. Comp. Codes R. & Regs. §§ 643.1 – 643.4. FACTUAL BACKGROUND On or about August 30, 1996, Plaintiff was hospitalized in the Central New York Psychiatric Center in Marcy, New York. See Compl. and Demand for Jury Trial [ECF No. 1] (“Compl.”), at Ex. F, H, J. Additionally, on February 25, 2005, Michael O’Leary, Director of Community Services for Columbia County, completed an application for Plaintiff’s hospitalization because Plaintiff “ha[d] a mental illness for which immediate care and treatment in a hospital is appropriate and which is likely to result in serious harm to him[self] or others.” Emergency or C.P.E.P. Admission (Sections 9.41, 9.45, 9.55 and 9.57 Mental Hygiene Law) Case 1:13-cv-01510-GTS-CFH Document 79-2 Filed 09/29/16 Page 6 of 13 5 (Feb. 24, 2005) (attached as Ex. 1). 2 On the same date, Plaintiff was admitted to Columbia Memorial Hospital in Hudson, New York. Records of Plaintiff’s Columbia Memorial Hospital (attached as Ex. 2), at 52 (Admitting Record, Feb. 25, 2005).3 A hospital assessment completed on Plaintiff’s admission to Columbia Memorial Hospital explains that Plaintiff “was brought in via a pick up order issued by Michael O’Leary from Columbia County Mental Health after he apparently had begun threatening public officials and had reportedly stated he had intentions of killing them this week.” Columbia Memorial Hospital Admission Assessment (Feb. 25, 2005) (Ex. 2, at 59-60). On the same date, Dr. Richard Tobey, a physician in the Emergency Department at Columbia Memorial Hospital, examined Plaintiff and determined that he “was in need of involuntary care and treatment in a hospital providing inpatient services for the mentally ill” and that “as a result of his or her mental illness, [Plaintiff] pose[d] a substantial threat of harm to self or others.” Certificate of Examining Physician to Support an Application for Involuntary Admission (Feb. 25, 2005) (Ex. 2, at 90); see also Emergency Admission, Section 9.39 Mental Hygiene Law (Feb. 25, 2005) (Ex. 2, at 89) (finding reasonable cause to believe that Plaintiff had a mental illness for which immediate observation, care, and treatment in a mental hospital was appropriate, and that was likely to result in serious harm to Plaintiff or others). Dr. Tobey also 2 Federal Defendants’ exhibits have been redacted to protect personal identifying information in accordance with Fed. R. Civ. P. 5.2 and Local Civ. R. 8.1. 3 In accordance with Local Civil Rule 7.1(a), Federal Defendants have attached a certification for the hospital records filed as Exhibit 2; in that certification, the 119 pages of records that are being certified are records that have been Bates-numbered “Phelps_Fed_Defs_052” through “Phelps_Fed_Defs_170,” and that have been provided to all counsel in this case. References in the text to page numbers of Exhibit 2 are to these Bates numbers. Because Exhibit 2 consists of medical records, in accordance with Local Civil Rule 8.1 and in an abundance of caution, this exhibit has been filed under a separate ECF event and designated “Other / Medical Records filed.” Case 1:13-cv-01510-GTS-CFH Document 79-2 Filed 09/29/16 Page 7 of 13 6 certified that Plaintiff had been provided with notice that he had been admitted as an emergency- status patient; that within 48 hours of Plaintiff’s admission, he would be examined by another physician, who would be a member of the hospital’s psychiatric staff; and that if the second physician confirmed the first physician’s findings, Plaintiff could be kept in the hospital for a total of up to 15 days. Notice of Status and Rights, Emergency Admission, Section 9.39 Mental Hygiene Law (Feb. 25, 2005) (Ex. 2, at 89). Dr. Tobey further certified that Plaintiff had been notified that if he did not believe he needed immediate hospitalization, he (or persons acting on his behalf) could make a written request for a court hearing; that such a hearing would take place as soon as possible within 5 days of the request; and that copies of such a request would be sent to the appropriate court and to New York’s Mental Hygiene Legal Service. Id. On the same date that Plaintiff was admitted, an admission assessment was performed on Plaintiff by Dr. Richard Plotkin. See Ex. 2 at 59-60. The assessment concluded: “In the ER, the patient continued to present as quite psychotic, unable to give clear, logical, organized thoughts or responses and in need of psychiatric stabilization.” Id. at 59. The assessment diagnosed Plaintiff with “Psychotic Disorder; NOS [not otherwise stated]; PTSD [post-traumatic stress disorder]; Intermittent Explosive Disorder.” Id. at 59-60; see also Columbia Memorial Hospital Psychiatrist’s Admitting Orders (Ex. 2, at 65-66) (diagnosis of Plaintiff by Dr. Plotkin of “PTSD, Intermittent Explosive DO,” “NPD [narcissistic personality disorder]” and “Chronic mental health problems”). Dr. Plotkin remained Plaintiff’s attending physician for the duration of his hospitalization. See Columbia Memorial Hospital Report of Consultation (Feb. 28, 2005) (Ex. 2, at 61-62). On February 26, 2005, Plaintiff requested a court hearing to be discharged from Columbia Memorial Hospital. Request for Court Hearing (Ex. 2, at 88). However, prior to his Case 1:13-cv-01510-GTS-CFH Document 79-2 Filed 09/29/16 Page 8 of 13 7 discharge from the hospital, Plaintiff withdrew this request for a court hearing. Id. On February 28, 2005, Dr. Plotkin consulted with Dr. Charles Johnson, a doctor of osteopathic medicine, regarding Plaintiff. See Ex. 2 at 61-62. Dr. Johnson confirmed the diagnosis of Plaintiff as suffering from narcissistic personality disorder, post-traumatic stress disorder, and hypertension. Id. at 62. Plaintiff was discharged from Columbia Memorial Hospital on March 7, 2005, ten days after his admission. See Columbia Memorial Hospital Discharge Summary (Mar. 9, 2005) (Ex. 2, at 56-58). Plaintiff tried to purchase firearms from federal firearms licensees (“FFLs”) in New York on February 21 and April 24, 2013. Compl. ¶¶ 25, 28. The FFLs informed Plaintiff that he was ineligible to possess a firearm under the Gun Control Act. Id. Plaintiff then contacted the FBI. In letters to Plaintiff dated March 4 and April 30, 2013, the FBI informed Plaintiff that 18 U.S.C. § 922(g)(4) prohibited him from possessing a firearm. Id. ¶¶ 27, 31 & Ex. B, D. PROCEDURAL BACKGROUND On December 6, 2013, Plaintiff filed his complaint. Compl. ¶¶ 43-84. Plaintiff’s first claim for relief, asserted against all defendants, seeks declaratory and injunctive relief under 18 U.S.C. § 925A attempting to correct what Plaintiff alleges to be erroneous information in the NICS database that Plaintiff was committed to a mental institution. Id. ¶¶ 43-59.4 On March 6, 2015, the Court denied the Federal Defendants’ motion to dismiss Plaintiff’s first claim for relief pursuant to Fed. R. Civ. P. 12(b)(6). Decision and Order, ECF No. 45 (Mar. 26, 2015), at 12-15, 22-25. The Court held that Plaintiff’s 1996 admission under Section 9.37 of 4 Though the complaint includes two additional claims for relief, those claims are asserted only against officials of New York State. See Compl. ¶¶ 60-84. Because only the first claim for relief is asserted against the Federal Defendants, the present motion seeks summary judgment only with respect to that claim. Case 1:13-cv-01510-GTS-CFH Document 79-2 Filed 09/29/16 Page 9 of 13 8 the Mental Hygiene Law did not constitute a “commitment” for purposes of 18 U.S.C. § 922(g)(4). Id. The Court explained that for an involuntary commitment to be considered a “commitment” for purposes of 18 U.S.C. § 922(g)(4), “there must be a higher standard for the confinement than is found in N.Y. Mental Hyg. Law § 9.37 . . . , including a specific notification that the patient is entitled to court review of his or her confinement (which did not occur in this case).” Id. at 13. However, the Court stated, “because of the lack of record evidence regarding the duration of, and findings from, Plaintiff’s 2005 stay at Columbia Memorial Hospital (and the impediments to considering such evidence on the pending motions), the Court expresses no opinion as to the success of the Federal Defendants’ reliance on that stay in any motion for summary judgment.” Id. at 25. ARGUMENT The Court Should Enter Judgment for the Federal Defendants on Plaintiff’s First Claim Because Plaintiff Was Involuntarily Committed in 2005. Plaintiff’s first claim for relief seeks the removal of his name from the NICS database because, he asserts, his involuntary hospitalization did not constitute being “committed to a mental institution” within the meaning of 18 U.S.C. § 922(g)(4). Compl. ¶¶ 43-59. The Federal Defendants respectfully request that the Court enter summary judgment in their favor on this claim for relief because Plaintiff’s 2005 commitment included the procedural protections accepted by the Second Circuit in United States v. Waters, 23 F.3d 29 (2d Cir. 1994), for deeming a hospitalization for mental health reasons to constitute a “commit[ment] to a mental institution” for purposes of 18 U.S.C. § 922(g)(4). The primary legal question at issue in Waters was “whether an involuntary hospitalization pursuant to New York Mental Hygiene Law constitutes a commitment to a mental institution within the meaning of 18 U.S.C. § 922(g)(4).” 23 F.3d at 31. The plaintiff in Case 1:13-cv-01510-GTS-CFH Document 79-2 Filed 09/29/16 Page 10 of 13 9 Waters had been involuntarily hospitalized at St. Lawrence Psychiatric Center on a two- physician certificate in accordance with Section 9.27(a) of the Mental Hygiene Law, which provides in relevant part: “The director of a hospital may receive and retain therein as a patient any person alleged to be mentally ill and in need of involuntary care upon the certificates of two examining physicians, accompanied by an application for the admission of such person. The examination may be conducted jointly but each examining physician shall execute a separate certificate.” Id. at 30 (quoting N.Y. Mental Hyg. Law § 9.27(a)). Turning to state law, the Second Circuit determined that “New York State caselaw, which refers to § 9.27 of the Mental Hygiene Law, supports the proposition that an ‘admission’ under this section is, in fact, a ‘commitment.’” Id. at 32-33 (citations omitted). It thus “conclude[d] that, whether termed an ‘admission’ or a ‘commitment,’ § 9.27 established ‘commitment’ procedures under New York State law, and [defendant] was ‘committed’ pursuant to those procedures.” Id. at 34. Finally, after considering “whether this outcome is consistent with federal policy,” the Second Circuit determined that “the New York State system of involuntary admission under § 9.27, with its attendant requirements of notice and judicial proceedings, comports with federal policy.” Id. at 34, 35. After reviewing the legislative history of the Gun Control Act, the Court determined that this history “indicates that Congress would broadly apply the prohibition against the ownership of firearms by ‘mentally unstable’ or ‘irresponsible’ persons.” Id. at 35 (citing H.R. Rep. No. 90-17735 (1968), 114 Cong. Rec. 21780, 21791, 21832, 22270 (1968)); see also id. at 34 (“The federal gun control statute is designed to prohibit the ownership of firearms not only by individuals who have already committed dangerous acts, but also by those with a potential for violence as well.”) (citations omitted). Case 1:13-cv-01510-GTS-CFH Document 79-2 Filed 09/29/16 Page 11 of 13 10 Under Waters, Section 922(g)(4)’s prohibition applies to Plaintiff. Here, as was the case for the plaintiff in Waters, Plaintiff was involuntarily committed based on certifications from two physicians – Dr. Tobey and Dr. Plotkin, with an additional consultation from Dr. Johnson – that Plaintiff was mentally ill and in need of hospitalization. See Ex. 2, at 52, 56-62, 65-66, 90-91. Moreover, Plaintiff was specifically notified that he was entitled to a hearing from a court review of his confinement, and Plaintiff requested such a hearing before later rescinding his request. See id. at 89. Additionally, as in Waters, here, New York case law supports the proposition that hospitalization under Section 9.39 of the Mental Hygiene Law is a “commitment.” See MP v. Ramesar, 25 N.Y.S. 3d 577, 581 N.Y. Sup. Ct. 2016) (referring to petitioner as having been “involuntarily committed under MHL § 9.39”); Matter of George L., 648 N.E.2d 475, 480 n.3 (N.Y. 1995) (citing N.Y. Mental Hyg. Law § 9.39(a) in referring to “involuntary civil commitment”); Matter of Francis S., 618 N.Y.S. 2d 660, 699 n.42 (referring to Section 9.39 as “authoriz[ing] . . . civil commitment” under prescribed circumstances). Accordingly, for the same reasons that the involuntary commitment in Waters “constitute[d] a ‘commitment’ within the meaning of 18 U.S.C. § 922(g)(4),” Plaintiff’s involuntary commitment here also constitutes such a commitment. In sum, Plaintiff was “committed to a mental institution” within the meaning of 18 U.S.C. § 922(g)(4). Therefore, the Court should enter judgment for the Federal Defendants with respect to Plaintiff’s first claim for relief.5 5 The prayer for relief in Plaintiff’s first claim for relief requests that the Court order, inter alia, “[i]njunctive relief . . . directing the FBI to withdraw their erroneous record pertaining to plaintiff Phelps from NICS” and “[i]njunctive relief directing that plaintiff Phelps’ firearms disability be removed from NICS.” Compl., First Claim for Relief, Prayer for Relief, at (c), (d). However, even if this Court were to deny the Federal Defendants’ motion for summary judgment, this would not be the proper remedy. The proper remedy would be to remand the matter to the Federal Defendants with instructions that the record deficiencies be corrected and the decisions Case 1:13-cv-01510-GTS-CFH Document 79-2 Filed 09/29/16 Page 12 of 13 11 CONCLUSION For the foregoing reasons, the Federal Defendants respectfully request that the Court enter summary judgment in their favor on Plaintiff’s first claim for relief. Dated: September 29, 2016 Respectfully submitted, BENJAMIN C. MIZER Principal Deputy Assistant Attorney General RICHARD S. HARTUNIAN United States Attorney CHARLES E. ROBERTS Assistant United States Attorney /s/ Daniel Riess e JOHN R. TYLER Assistant Branch Director DANIEL RIESS (Bar No. 518689) Trial Attorney U.S. Department of Justice Civil Division, Rm. 6122 20 Massachusetts Avenue, NW Washington, D.C. 20530 Telephone: (202) 353-3098 Fax: (202) 616-8460 Email: Daniel.Riess@usdoj.gov Attorneys for Federal Defendants made anew, or that defective decisions be remade in a manner that is neither arbitrary nor capricious. See Florida Power & Light v. Lorion, 470 U.S. 729, 744 (1985) (“If the record before the agency does not support the agency action, . . . the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation”); accord Twum v. INS, 411 F.3d 54, 61 (2d Cir. 2005). Accordingly, even if the Court were to determine that the record does not support the Federal Defendants’ decision, the appropriate remedy would be to remand the matter to the Federal Defendants for further consideration of their action. Case 1:13-cv-01510-GTS-CFH Document 79-2 Filed 09/29/16 Page 13 of 13 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK -------------------------------------------------------------- Frederick H. Phelps, Plaintiff, Civil Action No. 1:13-CV-1510 v. (GTS/CFH) Maureen Bosco, Executive Director, Central New York Psychiatric Center et al., Defendants. -------------------------------------------------------------- FEDERAL DEFENDANTS’ STATEMENT OF UNDISPUTED MATERIAL FACTS Pursuant to Local Civil Rule 7.1(a), Federal Defendants submit this statement of material facts as to which Federal Defendants contend there exists no genuine issue. 1. On or about August 30, 1996, Plaintiff was hospitalized in the Central New York Psychiatric Center in Marcy, New York. Compl. & Demand for Jury Trial (ECF No. 1) (“Compl.”), at Ex. F, H, J. 2. On February 25, 2005, Michael O’Leary, Director of Community Services for Columbia County, completed an application for Plaintiff’s hospitalization because Plaintiff “ha[d] a mental illness for which immediate care and treatment in a hospital is appropriate and which is likely to result in serious harm to him[self] or others.” Emergency or C.P.E.P. Admission (Sections 9.41, 9.45, 9.55 and 9.57 Mental Hygiene Law) (Feb. 24, 2005) (Federal Defendants’ Motion for Summary Judgment (“Fed. Def. MSJ”), Ex. 1). 3. Also on February 25, 2005, Plaintiff was admitted to Columbia Memorial Hospital in Hudson, New York. Columbia Memorial Hospital Admitting Record (Feb. 25, 2005) (Fed. Def. MSJ, Ex. 2, at 52). Case 1:13-cv-01510-GTS-CFH Document 79-3 Filed 09/29/16 Page 1 of 5 2 4. A hospital assessment completed on February 25, 2005, on Plaintiff’s admission to Columbia Memorial Hospital, explains that Plaintiff “was brought in via a pick up order issued by Michael O’Leary from Columbia County Mental Health after he apparently had begun threatening public officials and had reportedly stated he had intentions of killing them this week.” Columbia Memorial Hospital Admission Assessment (Fed. Def. MSJ, Ex. 2, at 59-60). 5. On February 25, 2005, Dr. Richard Tobey, a physician in the Emergency Department at Columbia Memorial Hospital, examined Plaintiff and determined that he “was in need of involuntary care and treatment in a hospital providing inpatient services for the mentally ill” and that “as a result of his or her mental illness, [Plaintiff] pose[d] a substantial threat of harm to self or others.” Certificate of Examining Physician to Support an Application for Involuntary Admission (Feb. 25, 2005) (Fed. Def. MSJ, Ex. 2, at 90); see also Emergency Admission, Section 9.39 Mental Hygiene Law (Feb. 25, 2005) (Fed. Def. MSJ, Ex. 2, at 89) (finding reasonable cause to believe that Plaintiff had a mental illness for which immediate observation, care, and treatment in a mental hospital was appropriate, and that was likely to result in serious harm to Plaintiff or others). 6. Dr. Richard Tobey also certified that Plaintiff had been provided with notice that he had been admitted as an emergency-status patient; that within 48 hours of Plaintiff’s admission, he would be examined by another physician, who would be a member of the hospital’s psychiatric staff; and that if the second physician confirmed the first physician’s findings, Plaintiff could be kept in the hospital for a total of up to 15 days. Notice of Status and Rights, Emergency Admission, Section 9.39 Mental Hygiene Law (Feb. 25, 2005) (Fed. Def. MSJ, Ex. 2, at 89). Case 1:13-cv-01510-GTS-CFH Document 79-3 Filed 09/29/16 Page 2 of 5 3 7. Dr. Tobey further certified that Plaintiff had been notified that if he did not believe he needed immediate hospitalization, he (or persons acting on his behalf) could make a written request for a court hearing; that such a hearing would take place as soon as possible within 5 days of the request; and that copies of such a request would be sent to the appropriate court and to New York’s Mental Hygiene Legal Service. Notice of Status and Rights, Emergency Admission, Section 9.39 Mental Hygiene Law (Feb. 25, 2005) (Fed. Def. MSJ, Ex. 2, at 89). 8. On February 25, 2005, an admission assessment was performed on Plaintiff by Dr. Richard Plotkin. (Fed. Def. MSJ, Ex. 2, at 59-60). 9. The admission assessment performed on Plaintiff by Dr. Richard Plotkin concluded: “In the ER, the patient continued to present as quite psychotic, unable to give clear, logical, organized thoughts or responses and in need of psychiatric stabilization.” (Fed. Def. MSJ, Ex. 2, at 59). 10. The admission assessment performed on Plaintiff by Dr. Richard Plotkin diagnosed Plaintiff with “Psychotic Disorder; NOS [not otherwise stated]; PTSD [post-traumatic stress disorder]; Intermittent Explosive Disorder.” (Fed. Def. MSJ, Ex. 2, at 59-60). 11. In a separate document, Dr. Richard Plotkin diagnosed Plaintiff with “PTSD, Intermittent Explosive DO,” “NPD [narcissistic personality disorder]” and “Chronic mental health problems”). Columbia Memorial Hospital Psychiatrist’s Admitting Orders (Fed. Def. MSJ, Ex. 2, at 65-66). 12. Dr. Richard Plotkin remained Plaintiff’s attending physician for the duration of his hospitalization. Columbia Memorial Hospital Report of Consultation (Feb. 28, 2005) (Fed. Def. MSJ, Ex. 2, at 61-62). Case 1:13-cv-01510-GTS-CFH Document 79-3 Filed 09/29/16 Page 3 of 5 4 13. On February 26, 2005, Plaintiff requested a court hearing to be discharged from Columbia Memorial Hospital. Request for Court Hearing. (Fed. Def. MSJ, Ex. 2, at 88). 14. Prior to his discharge from the hospital, Plaintiff withdrew his request for a court hearing. (Fed. Def. MSJ, Ex. 2, at 88). 15. On February 28, 2005, Dr. Richard Plotkin consulted with Dr. Charles Johnson, a doctor of osteopathic medicine, regarding Plaintiff. (Fed. Def. MSJ, Ex. 2, at 61-62). 16. Dr. Charles Johnson confirmed the diagnosis of Plaintiff as suffering from narcissistic personality disorder, post-traumatic stress disorder, and hypertension. (Fed. Def. MSJ, Ex. 2, at 62). 17. Plaintiff was discharged from Columbia Memorial Hospital on March 7, 2005. Columbia Memorial Hospital Discharge Summary (Mar. 9, 2005) (Fed. Def. MSJ, Ex. 2, at 56- 58). 18. Plaintiff tried to purchase firearms from federal firearms licensees in New York on February 21 and April 24, 2013. Compl. ¶¶ 25, 28. 19. The federal firearms licensees from which Plaintiff tried to purchase firearms informed Plaintiff that he was ineligible to possess a firearm under the Gun Control Act. Compl. ¶¶ 25, 28. 20. In letters to Plaintiff dated March 4 and April 30, 2013, the Federal Bureau of Investigation informed Plaintiff that 18 U.S.C. § 922(g)(4) prohibited him from possessing a firearm. Compl. ¶¶ 27, 31 & Ex. B, D. Dated: September 29, 2016 Respectfully submitted, BENJAMIN C. MIZER Principal Deputy Assistant Attorney General Case 1:13-cv-01510-GTS-CFH Document 79-3 Filed 09/29/16 Page 4 of 5 5 RICHARD S. HARTUNIAN United States Attorney CHARLES E. ROBERTS Assistant United States Attorney /s/ Daniel Riess e JOHN R. TYLER Assistant Branch Director DANIEL RIESS (Bar No. 518689) Trial Attorney U.S. Department of Justice Civil Division, Rm. 6122 20 Massachusetts Avenue, NW Washington, D.C. 20530 Telephone: (202) 353-3098 Fax: (202) 616-8460 Email: Daniel.Riess@usdoj.gov Attorneys for Federal Defendants Case 1:13-cv-01510-GTS-CFH Document 79-3 Filed 09/29/16 Page 5 of 5 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK -------------------------------------------------------------- Frederick H. Phelps, Plaintiff, Civil Action No. 1:13-CV-1510 v. (GTS/CFH) Maureen Bosco, Executive Director, Central New York Psychiatric Center et al., Defendants. -------------------------------------------------------------- DECLARATION OF DANIEL RIESS IN SUPPORT OF FEDERAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S FIRST CLAIM FOR RELIEF Pursuant to Title 28, United States Code, Section 1746 and under penalty of perjury, Daniel Riess declares as follows: 1. I am a Trial Attorney with the Civil Division of the United States Department of Justice. I am familiar with the facts in this case. 2. This declaration is filed to comply with Rule 7.1 of the Local Rules of the United States District Court for the Northern District of New York. Filed simultaneously in support of the Federal Defendants’ Motion for Summary Judgment on Plaintiff’s First Claim for Relief is a Memorandum of Law. 3. For the reasons stated in the Memorandum of Law, I believe the position asserted by the Federal Defendants has merit. 4. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Dated: September 29, 2016 JOHN R. TYLER Assistant Branch Director U.S. Department of Justice Case 1:13-cv-01510-GTS-CFH Document 79-4 Filed 09/29/16 Page 1 of 2 Civil Division 20 Massachusetts Avenue, NW Washington, D.C. 20530 By: /s/ Daniel Riess Daniel Riess Trial Attorney Bar Roll No. 518689 Case 1:13-cv-01510-GTS-CFH Document 79-4 Filed 09/29/16 Page 2 of 2