holding that officers had probable cause to seize a woman who suffered from Down's Syndrome for involuntary hospitalization even though she was behaving calmlySummary of this case from Aouatif v. City of New York
00 CIV. 4688 (DLC)
July 2, 2001
Richard A. Altman, New York, NY, for plaintiffs.
Susan B. Eisner, Assistant Corporation Counsel, New York, N.Y. for defendants.
OPINION AND ORDER
This case requires us to consider the appropriate response by the police when a frightened woman with Down's Syndrome who is home alone places a telephone call falsely reporting that she is being attacked. In this action, brought under 42 U.S.C. § 1983 ("Section 1983"), 42 U.S.C. § 1985 ("Section 1985"), the Americans with Disability Act ("ADA"), 42 U.S.C. § 12132, et seq., and state law, plaintiffs Myra Anthony ("Anthony") and Magdalene Wright ("Wright") assert that defendants the City of New York ("City"), the New York City Health and Hospitals Corporation ("HHC"), and police officers Richard Collegio ("Collegio") and Gerald Migliaro ("Migliaro") violated their rights when Collegio, Migliaro, and others entered Wright's apartment and took Anthony to the psychiatric ward of Kings County Hospital, where she was kept overnight. Plaintiffs and defendants have cross-moved for partial summary judgment. For the following reasons, defendants' motion is granted, and plaintiffs' motion is denied.
The briefs do not address every cause of action in plaintiffs' complaint.
Anthony has submitted no testimony in support of her cross-motion for summary judgment. Anthony is presently in the West Indies and is seeking a visa to return to the United States to receive medical treatment. She will submit to a deposition immediately prior to trial if summary judgment is not granted.
Plaintiff Wright is a Black woman and a resident of Brooklyn, New York, and plaintiff Anthony, Wright's half-sister, is a Black woman and a citizen of the West Indies. Anthony's ability to function is limited by Down's Syndrome although, according to Wright, Anthony is sufficiently independent that she can "dress herself" and "prepare a meal for herself to eat . . . with supervision." During the period relevant to this action, Anthony was staying with Wright on a medical visa to receive treatment for a hearing problem.
The City is a municipal corporation existing under the laws of New York. HHC is a municipal corporation created under New York law. Kings County Hospital is owned and operated by HHC. Migliaro and Collegio are employed as police officers by the City of New York, and were so employed at all times relevant to this action.
On March 7, 2000, at 11:37 a.m., a call from Wright's apartment was connected to 911. The female caller identified herself as five years old, was "incoherent," and stated that a "husband" "beat on her" and "has a knife and a gun." At about 11:52 a.m., while the caller was still on the line with 911, the 911 operator heard knocking at Wright's door. By 11:55 a.m., several uniformed officers had entered Wright's apartment. Subsequently, additional officers, including Collegio and Migliaro, who are partners, and emergency medical service ("EMS") providers entered Wright's apartment. Sergeant Mendez, a supervising officer, was also at the scene.
Anthony was alone in the apartment when the police officers arrived. Collegio and Migliaro have conflicting recollections of Anthony's behavior while they were in Wright's apartment.
Migliaro testified that when he first entered Wright's apartment, he observed Anthony sitting in the living room and did not remember her speaking to him or to any of the other officers. As far as Migliaro remembered, Anthony remained seated. Migliaro additionally testified that Anthony "appeared to be needing of assistance because she appeared to be slow," but he "didn't notice" whether Anthony was upset and did not see her behave in a violent manner. Finally, Migliaro did not feel personally threatened by Anthony at any time, or feel that Anthony was dangerous to others, although he did believe that she was a danger to herself because "[s]he was left home unattended, and . . . her mental capacity didn't seem [sic] she was able to take care of herself."
Collegio, in contrast, asserts that Anthony was "running about," "crying," and "screaming," and that he felt threatened by her. Collegio believed that Wright was "potentially" dangerous to herself.
At some point, Wright's neighbor arrived and reported that Wright was involved with the church. Collegio, Migliaro, and other officers looked in Wright's apartment for Wright's work number or telephone numbers of members of Wright's church who might know where Wright was. Migliaro personally called six or more telephone numbers in an attempt to reach Anthony's family members. Eventually, Sergeant Mendez directed Collegio and Migliaro to take Anthony to the hospital. Anthony was then handcuffed by Collegio or another officer. Migliaro rode with Anthony in an ambulance to Kings County Hospital. En route, ambulance workers observed that Anthony appeared to have Down's Syndrome and that she "became very aggressive" when she learned that she was being taken to the hospital but was "able to be calmed."
Wright was called at work at around 12:30 p.m. by a sister, who said that Myra had been taken out of Wright's apartment by the police. When Wright returned home, around 2:00 p.m., she saw a note on her bedroom dresser that read: "Magdalene, 70 Pct. responded to you [sic] house and took [Anthony] to Kings County Hospital to be checked out." Wright called Kings County Hospital and the 70th precinct, but neither told Wright where Anthony was.
At about 2:30 p.m., Wright received a call from Migliaro, who stated that Anthony was at the psychiatric ward at Kings County Hospital.
Wright arrived at Kings County Hospital at about 3:00 p.m.
When Wright arrived, Anthony was being held in a locked room.
Although Wright asked that Anthony be released to her custody,
Anthony was kept at Kings County Hospital for evaluation.
While at Kings County Hospital, Anthony was examined by several staff members. At 6:42 p.m., Anthony was interviewed by a nurse, whose notes reflect that Anthony was "uncooperative [and] fearful," and refused to answer the questions asked. At 10:40 p.m., Anthony was examined by Dr. Najira Khanani, who noted that during the interview Anthony exhibited an "egocentric delusion and seem[ed] paranoid," and "show[ed] poor insight/judgment." Based upon this evaluation, Dr. Khanani admitted Anthony as "an emergency status patient to th[e] Comprehensive Psychiatric Emergency Program (C.P.E.P.) for immediate observation, care and treatment" pursuant to Mental Hygiene Law § 9.40 ("Section 9.40"). By 11:00 p.m., blood and urine samples were taken from Anthony and Anthony was administered medicine, including Ativan, Cogentin, and Haldol, "due to [her] agitation and uncooperative behavior."
At 10:30 a.m. on March 8, a Kings County Hospital employee prepared a discharge summary which notes that Anthony had admitted that she had the telephone conversation with 911 in which she said there was a man with a gun, though she had previously denied that she had made the call, and that Anthony had "apparently randomly selected the numbers without understanding the implications" of the call. The discharge summary additionally notes that Anthony "has no psychotic symptoms" and "[d]enies feelings of depression but appeared overwhelmed by the experience of being handcuffed and brought to the hospital." Anthony was released to Wright's custody at around 11:00 a.m. on March 8.
The complaint alleges that: (1) all the defendants violated Anthony's Fourth Amendment rights to be free from unreasonable search and seizure and excessive force, and Fourteenth Amendment due process rights; (2) all the defendants violated Anthony's rights under the ADA; (3) Collegio and Migliaro conspired to violate Anthony's civil rights under Section 1985 on the basis of her sex, race, and disability; and (4) all of the defendants committed the common law torts of assault and battery, intentional infliction of emotional distress, and false imprisonment against Anthony. Wright alleges that all the defendants violated her constitutionally protected right of familial association. Both Wright and Anthony assert that the City, Collegio, and Migliaro committed common law trespass against them.
Where a particular Amendment to the Constitution provides specific protection against the asserted harm, that Amendment, and not the Due Process Clause, provides the standard for relief. Tenenbaum v. Williams, 193 F.3d 581, 599 (2d Cir. 1999). Anthony's claims of unreasonable search and seizure and excessive force during her seizure, against the City, Collegio, and Migliaro, are properly brought under the Fourth Amendment. See Lennon v. Miller, 66 F.3d 416, 425 (2d Cir. 1995) (claim of excessive force during seizure by police should be analyzed under the Fourth Amendment); Section A, infra. Accordingly, Anthony's Due Process claims against the City, Collegio, and Migliaro for these same asserted violations are dismissed. Anthony's Monell claim against HHC, on the other hand, will be addressed under both the Fourth Amendment and the Due Process Clause. See Section B, infra.
Summary judgment may not be granted unless the submissions of the parties, taken together, "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. The substantive law governing the case will identify those issues that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1987). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the Court must view all facts in the light most favorable to the nonmoving party. See Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d Cir. 1994). The movant can meet this burden by showing that there is a lack of evidence to support the non-movant's case on an issue where the non-movant bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has asserted facts showing that the nonmovant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of his pleadings. Rule 56(e), Fed.R.Civ.P. See also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995).
Cross-motions for summary judgment are treated as unilateral summary judgment motions. Straube v. Fla. Union Free Sch. Dist., 801 F. Supp. 1164, 1174 (S.D.N.Y. 1992). Each movant must present sufficient evidence to satisfy its burden of proof on all material facts. Barhold v. Rodriguez, 863 F.2d 233, 236 (2d Cir. 1988).
Wright has moved for summary judgment on "derivative claims based upon the violation of her sister's constitutional rights." Plaintiffs' complaint does not, however, include such claims.
Anthony seeks summary judgment on her claim that Collegio's and Migliaro's warrantless entry into Wright's apartment and warrantless seizure of Anthony violated the Fourth Amendment. Collegio and Migliaro have moved for summary judgment on the grounds that: (1) the officers' warrantless entry into Wright's apartment was justified by exigent circumstances and Anthony's consent; (2) the officers had probable cause to seize Anthony and remove her for psychiatric evaluation; and (3) qualified immunity shields the individual defendants from liability on plaintiff's claims. Section 1983 imposes liability upon a party who "under color [of law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. Accordingly, to merit summary judgment on her Section 1983 claim against Collegio and Migliaro, Anthony must establish that these defendants, acting under color of law, deprived her of a right secured by the Constitution or laws of the United States. Ginsberg v. Healey Car Truck Leasing, Inc., 189 F.3d 268, 271 (2d Cir. 1999).
1. Collegio's and Migliaro's Warrantless Entry into Wright's Apartment
"Absent exigent circumstances or some other exception, the police must obtain a warrant before they enter the home to conduct a search or otherwise intrude on an individual's legitimate expectation of privacy." United States v. Gori, 230 F.3d 44, 50 (2d Cir. 2000). Athough warrantless searches are presumptively unreasonable, "[p]olice officers may enter a dwelling without a warrant to render emergency aid and assistance to a person whom they reasonably believe to be in distress and in need of that assistance." Tierney v. Davidson, 133 F.3d 189, 196 (2d Cir. 1998) (citation omitted). The "essential question" when considering whether a warrantless entry was appropriate is whether the police had an "urgent need to render aid or take action." United States v. MacDonald, 916 F.2d 766, 769 (2d Cir. 1990) (en banc) (citation omitted). The issue of whether exigent circumstances existed is quickly resolved. Because it was reasonable for the officers to believe that there was an armed man in Wright's apartment who was committing a violent crime against the caller, exigent circumstances justified the officers' warrantless entry into Wright's apartment. See Tierney, 133 F.3d at 192 (police responded to report of a domestic dispute); Kerman v. City of New York, No. 96 Civ. 7865 (LMM), 1999 WL 509527, at *4 (S.D.N.Y. July 19, 1999) (police responded to 911 report of emotionally disturbed person home alone and in possession of a gun).
In an attempt to create a question of fact regarding whether Anthony ever spoke to 911 on the morning in question, Anthony has produced a record of calls from Wright's apartment which does not reflect a call to 911. The "Sprint Report," which memorializes statements made to the 911 operator, does reflect, however, that a call from Wright's apartment was transferred from the operator to 911, and there is, in the record of calls from Wright's apartment, a call to the operator at the time in question. Alternatively, Anthony seeks to exclude the Sprint Report pursuant to Rule 1002, Fed.R.Evid., on the ground that the "best evidence" of the call, the 911 tape, was not produced.
Rule 1004, Fed.R.Evid., provides, however, that an original recording is not required, and other evidence of the contents of a recording are admissible, if the original was lost or destroyed, "unless the proponent lost or destroyed them in bad faith." Anthony has not alleged that the 911 tapes were destroyed in bad faith, nor has plaintiff presented any reason to believe that the Sprint Report is inaccurate. Accordingly, the Sprint Report is admissible and can be used to support defendants' motion for summary judgment.
Finally, Anthony asserts that the defendants have provided no method by which to interpret the Sprint Report. This Court and other courts in this district have, however, interpreted Sprint Reports in the past without difficulty. See, e.g., Green v. Kelly, No. 99 CIV. 9082 (DLC), 2000 WL 1871711, at *5 n. 3 (Dec. 21, 2000); Kerman, 1999 WL 509527, at *2. Summary judgment is granted to defendants Collegio and Migliaro on Anthony's claim that the officers' entry into Wright's apartment violated her Fourth Amendment rights.
Because exigent circumstances justified the officers' warrantless entry into Wright's apartment, it is unnecessary to consider whether Anthony consented to the officers' entry. It is worth noting, however, that the Sprint Report reflects that the officers' entry into Wright's apartment was peaceful, and Wright's deposition testimony reflects that her apartment door was in the same condition when she left for work on the day in question and when she returned and that there was "no sign of break and enter."
2. Collegio's and Migliaro's Warrantless Seizure of Anthony
A person is seized under the Fourth Amendment when, "`in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.'" Kia P. v. McIntyre, 235 F.3d 749, 762 (2d Cir. 2000) (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)).
Anthony was "seized" within the meaning of the Fourth Amendment when she was handcuffed and taken by ambulance to Kings County Hospital. A warrantless seizure is reasonable under the Fourth Amendment when the officers have probable cause. In the criminal context, if "the facts and circumstances within the officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed, probable cause to arrest exists." United States v. McFadden, 238 F.3d 198, 204 (2d Cir. 2001) (citation omitted). It is only the "fair probability," not a "prima facie showing," of the basis for seizure that establishes probable cause. United States v. Salameh, 152 F.3d 88, 113 (2d Cir. 1998). The Fourth Amendment additionally applies to seizures in the civil context. Kia P., 235 F.3d at 762. Under the Fourth Amendment, an officer may seize a person for a psychiatric evaluation if the officer has "probable cause to believe that the person is dangerous to himself or others." Monday v. Oullette, 118 F.3d 1099, 1102 (6th Cir. 1997). See also Glass v. Mayas, 984 F.2d 55, 57-58 (2d Cir. 1993); Kerman, 1999 WL 509527, at *5.
New York law provides that a police officer can "`take into custody any person who appears to be mentally ill and is conducting himself or herself in a manner which is likely to result in serious harm to the person or others.'" Kerman, 1999 WL 509527, at *6 (quoting N.Y. Mental Hyg. L. § 9.41).
Collegio and Migliaro provided conflicting testimony regarding Anthony's demeanor while the officers were in Wright's apartment. According to Collegio, Anthony was crying, screaming, running around, and behaving irrationally. According to Migliaro, Anthony sat in a chair in the living room, was calm, and did not speak. In considering defendants' motion for summary judgment, the facts must be viewed in the light most favorable to the plaintiffs. Accordingly, the question here is whether there was probable cause to believe that Anthony was dangerous to herself or others even if she was calm while the officers were in the apartment. Viewing the facts that were available to the officers, even in the light most favorable to Anthony, the officers had probable cause to seize Anthony. Given that Anthony has Down's Syndrome and had reported to an emergency operator less than twenty minutes before the police arrived that she was being beaten by a "husband" who had a knife and a gun, and given that there was no one present who could provide the officers with assurance that Anthony would not suffer another episode of terror or who could provide for Anthony's safety in their absence, it was reasonable to believe that Anthony might, if left alone, conduct herself in a manner likely to result in serious harm to herself. In reaching this conclusion, the officers were entitled to consider the likelihood that Anthony would experience another hallucination and might cause serious injury to herself during that episode even though she appeared calm to them. See Monday, 118 F.3d at 1102-1103 (although plaintiff appeared coherent and denied attempting to commit suicide, there was an "unacceptable risk" that plaintiff was deceiving officers). Accordingly, there was probable cause to seize Anthony.
Even if Anthony had been in an environment where there was little risk of physical injury, there is no reason why the threat of serious psychological injury alone, including the experience of terror resulting from a frightening hallucination, would not justify the officers' intervention.
Anthony asserts that she was subjected to excessive force when she was seized by defendants but has offered no admissible evidence in support of this claim. See Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001) ("[a]ffidavits submitted to defeat summary judgment must be admissible themselves or must contain evidence that will be presented in an admissible form at trial"). To the extent that Anthony has moved for summary judgment on her excessive force claim, Anthony's motion is denied. Defendants have not moved for summary judgment on Anthony's excessive force claim.
3. Qualified Immunity Even if Anthony were able to prove that her seizure violated her constitutional rights, Collegio and Migliaro would be entitled to qualified immunity. "A police officer is entitled to qualified immunity from liability for his discretionary actions if either (1) his conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known, or (2) it was objectively reasonable for him to believe that his actions were lawful at the time of the challenged act." Cerrone v. Brown, 246 F.3d 194, 199 (2d Cir. 2001). See also Wilson v. Layne, 526 U.S. 603, 609 (1999). In the false arrest context, summary judgment based upon qualified immunity is appropriate when "the only conclusion a rational jury could reach is that reasonably competent police officers could under the circumstances disagree about the legality of the arrest." Martinez v. Simonetti, 202 F.3d 625, 635 (2d Cir. 2000) (citation omitted).
Defendants additionally rely on New York's Mental Hygiene Law, Section 9.59, which provides that police officers who take and transport a person to a hospital pursuant to the Mental Hygiene Law "shall not be liable for damages for injuries alleged to have been sustained by such person . . . unless it is established that such injuries . . . were caused by gross negligence." N.Y. Mental Hyg. L. § 9.59. Immunity from a Section 1983 claim, however, is a matter of federal law and "cannot be immunized by state law." Howlett v. Rose, 496 U.S. 356, 375-76 (1990). See also Goldberg v. Town of Rocky Hill, 973 F.2d 70, 75 (2d Cir. 1992).
Under Supreme Court and Second Circuit law, it was clearly established that the State cannot involuntarily confine a person unless it has probable cause to believe that the person poses a danger to themselves or to others. O'Connor v. Donaldson, 422 U.S. 563, 575-76 (1975); Glass v. Mayas, 984 F.2d 55, 58 (2d Cir. 1993). In light of Anthony's statement to 911 and the officers' observations of Anthony, it was objectively reasonable to believe that Anthony might pose a danger to herself, even if she was behaving calmly when the officers arrived at Wright's apartment, and, based upon these observations, to take custody of Anthony and escort her in an ambulance to a hospital, where there were trained personnel who could be expected to understand her needs, respond with appropriate care, and keep her in a safe environment until the appropriate course of conduct became clear. Qualified immunity under these circumstances seems particularly appropriate when considering how we would judge the legality of a contrary decision by these officers. If the officers had decided to leave the apartment once they found Anthony calmly seated in a chair and after they had been unable to locate a responsible person to stay with her, the officers could have stood fairly accused of callous indifference to the special needs of a person who had recently experienced extreme mental suffering and who was, from any objective standard, unable to manage her life's affairs and activities without supervision and assistance. Had she injured herself in another episode of terror after the officers closed the door behind them, would the law have excused their conduct? If societies are measured by the ways in which they treat their least fortunate members, it is difficult to know, under these complicated and saddening circumstances, whether it would be more civilized to take Anthony to the hospital and risk that she might suffer additional trauma in the process, or leave Anthony in Wright's apartment and risk that Anthony, while alone, might cause trauma to herself. Indeed, not even Anthony argues in her motion papers that the latter course of action would have been more appropriate. In light of the difficulty of this decision, these officers should not be held liable for making the choice that they did.
Anthony asserts that defendants waived their right to raise a qualified immunity defense. Qualified immunity "is an affirmative defense that the defendants have the burden of raising in their answer." In re State Police Litigation, 88 F.3d 111, 123 (2d Cir. 1996). Defendants who do not assert qualified immunity in their answer can still raise qualified immunity, or any other affirmative defense, at summary judgment, however, if plaintiffs cannot show that any "significant prejudice" to them will result. Rinaldi v. City of New York, 756 F. Supp. 111, 115 n. 3 (S.D.N.Y. 1990) (Leval, J.). See also Levy v. Kosher Overseers Assn. of America, Inc., No. 92 Civ. 8377 (DLC), 2000 WL 294842, at *1 n. 1 (Mar. 21, 2000) (affirmative defenses generally).
Anthony asserts that she will suffer prejudice if defendants are allowed to raise qualified immunity for the first time on summary judgment because, "had the defense been asserted, defendants Collegio and Migliaro would have been questioned in detail about it at their depositions." Given that findings of probable cause and qualified immunity both require inquiry into the objective reasonableness of the officers' decision to seize Anthony, plaintiff's claim of prejudice is unpersuasive. Anthony additionally asserts that Collegio and Migliaro are not entitled to qualified immunity because they were performing ministerial as opposed to discretionary acts in following a direct order issued by a superior officer. The qualified immunity doctrine shields "`government officials performing discretionary functions.'" Lewis v. Cowen, 165 F.3d 154, 166 (2d Cir.), cert. denied, 120 S.Ct. 70 (1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)) (emphasis supplied). Even if following a Sergeant's orders to effect an arrest is properly characterized as ministerial, which is doubtful, it is nonetheless appropriate to grant these defendants qualified immunity because they were following the facially valid orders of a superior officer, Sergeant Mendez, who would have been entitled to qualified immunity had he been named a defendant in this case. Varrone v. Bilotti, 123 F.3d 75, 82 (2d Cir. 1997). Accordingly, even were Anthony able to prove that Collegio and Migliaro violated her constitutional rights, they would be entitled to qualified immunity.
B. Liability of the City, Defendants Collegio and Migliaro, Sued in Their Official Capacities, and HHC under Section 1983
Anthony seeks summary judgment on her claims that the City has a custom or policy "of arbitrarily arresting people with disabling conditions regardless of whether they pose a threat to themselves or others," and that HHC has a custom or policy of "arbitrarily confining persons with mental disabilities regardless of whether they are a threat to themselves or others, or are in need of medical attention." Defendants seek summary judgment on plaintiff's Monell claims on the grounds that she has not met her burden of establishing a pattern or practice of constitutional violations by the defendants.
In a suit brought under Section 1983, municipalities, individuals sued in their official capacities, and municipal corporations such as HHC, cannot be held liable unless the plaintiff can prove that the unconstitutional action was taken pursuant to a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers[,] . . . [or] pursuant to governmental "custom" even though such a custom has not received formal approval through the body's official decisionmaking channels.
HHC asserts that plaintiff's suit improperly relies on the doctrine of respondeat superior by suing HHC for the alleged constitutional violations of Kings County Hospital's employees. HHC can, however, be sued for the actions of its agencies' employees if the other requirements of Monell are satisfied. See Philippeaux v. North Central Bronx Hosp., 871 F. Supp. 640, 652 (S.D.N.Y. 1994) (DLC).
Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir. 2000) (quoting Monell v. Department of Social Services, 436 U.S. 658, 690-91 (1978)) (brackets in original). Proof of a single incident "is not sufficient to impose liability under Monell unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker." City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985).
In support of her Monell claim against the City, Anthony relies upon Collegio's testimony that Sergeant Mendez ordered him to arrest Anthony. When a plaintiff asserts that unconstitutional acts "were taken or caused by an official whose actions represent official policy," the plaintiff must establish that, as a matter of state law, the official in question "had final policymaking authority in the particular area involved." Jeffes, 208 F.3d at 57. See also Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 143 (2d Cir. 1999). Plaintiffs have put forth no basis to conclude that a Sergeant's actions can represent official policy. Cf. Jeffes, 208 F.3d at 60 (County sheriff is an official policy maker); Dangler, 193 F.3d at 143 (board of directors of Off Track Betting Corporation are official policy makers). Anthony additionally asserts, in support of her Monell claim, that Migliaro's deposition testimony reflects the City's failure to train police officers "regarding the treatment of non-violent disabled persons." In order to establish that a municipality's failure to train violated a plaintiff's constitutional rights, the plaintiff must meet three requirements.
First, the plaintiff must show that a policymaker knows "to a moral certainty" that her employees will confront a given situation. . . . Second, the plaintiff must show that the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation. . . . Finally, the plaintiff must show that the wrong choice by the city employee will frequently cause the
deprivation of a citizen's constitutional rights.
Walker v. City of New York, 974 F.2d 293, 297-98 (2d Cir. 1992) (citations omitted). See also Young v. County of Fulton, 160 F.3d 899, 904 (2d Cir. 1998). Only when a municipality's "failure to train reflects a `deliberate' or `conscious' choice by a municipality — a `policy' as defined by [Supreme Court] cases — can a city be liable for such a failure under § 1983." City of Canton v. Harris, 489 U.S. 378, 389 (1989).
Anthony has put forth no evidence of the nature of the City's current policies and training procedures regarding officers' treatment of disabled people. Moreover, Anthony has not met any of the three requirements described in Walker. Finally, even assuming that officers Collegio and Migliaro violated Anthony's rights, she has put forth no evidence to prove that these violations resulted from the City's failure to train. "That a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the city, for the officer's shortcomings may have resulted from factors other than a faulty training program." City of Canton, 489 U.S. at 390-91. Because Anthony has submitted no evidence to raise a material question of fact that would preclude entry of summary judgment for defendants on plaintiffs' Monell claims against the City and Collegio and Migliaro, acting in their official capacities, defendants' motion for summary judgment on these claims is granted. HHC additionally seeks summary judgment on Anthony's claim that HHC has a custom or policy of "arbitrarily confining persons with mental disabilities." In the first instance, Anthony has produced no admissible evidence of a policy or practice of unconstitutional behavior that raises a genuine issue of material fact to defeat HHC's motion for summary judgment. Santos, 243 F.3d at 683. In support of her claim that HHC has a policy of violating the rights of disabled people, Anthony relies solely upon Wright's deposition testimony and affidavit, in which Wright asserts that an unidentified HHC staff member informed her that it was a "standard" and "normal" procedure to detain Anthony in Kings County Hospital. This statement cannot be used to raise a genuine issue of fact as to whether HHC has a pattern or policy of violating the constitutional rights of disabled people, unless Anthony can establish that it was not hearsay. H. Sand Co. v. Airtemp Corp., 934 F.2d 450, 454-55 (2d Cir. 1991).
Wholly apart from a failure of proof regarding any unconstitutional HHC or Kings County Hospital policy for treatment of the disabled, there is no basis to conclude that Kings County Hospital violated Anthony's rights. HHC does not dispute that Anthony was seized by Kings County Hospital during the hours she was there: Wright was informed that she could not take Anthony home, which is sufficient to constitute a seizure. See Kia P., 235 F.3d at 762; Tenenbaum, 193 F.3d at 602; Glass, 984 F.2d at 58. HHC also does not dispute that Anthony was searched during her stay at Kings County Hospital, as blood and urine tests constitute searches under the Fourth Amendment. Ferguson v. City of Charleston, 121 S.Ct. 1281, 1287 (2001) (urine); Roe v. Marcotte, 193 F.3d 72, 77 (2d Cir. 1999) (blood).
HHC has presented unrefuted evidence, however, that its search and overnight seizure of Anthony were justified. "The Fourth Amendment requires that an involuntary hospitalization may be made only upon probable cause, that is, only if there are reasonable grounds for believing that the person seized is subject to seizure under the governing standard." Glass, 984 F.2d at 58 (citation omitted). Because "[a]n involuntary civil commitment is a massive curtailment of liberty," the Due Process Clause also requires that a person not be involuntarily hospitalized if she is "not a danger either to herself or to others." Rodriguez v. City of New York, 72 F.3d 1051, 1061 (2d Cir. 1995). In this case, Anthony was admitted to Kings County Hospital pursuant to Mental Hygiene Law Section 9.40. Section 9.40 provides, in relevant part, that:
[A] person may be retained [in a comprehensive psychiatric emergency program] for observation, care and treatment and further examination for up to twenty-four hours if, at the conclusion of [an examination within six hours after the person is received into the program's emergency room], such physician determines that such person may have a mental illness for which immediate observation, care and treatment in a comprehensive psychiatric emergency program is appropriate, and which is likely to result in serious harm to the person or others.
N.Y. Mental Hyg. L. § 9.40. Section 9.40 is constitutional on its face, Project Release v. Prevost, 722 F.2d 960, 975 (2d Cir. 1983), and there is no reason to believe that it was unconstitutionally applied. Based upon the undisputed evidence in the hospital records, plaintiff was examined by several HHC staff, who found that Anthony was initially "unresponsive," and then exhibited "delusional" and "paranoid" behavior. Anthony has offered no evidence that these findings were inaccurate or unreasonable or that it was unreasonable for HHC determine, based upon these observations, that Anthony should be held at Kings County Hospital for twenty-four hours for observation pursuant to Section 9.40, and administered medication to calm her. See Kulak v. City of New York, 88 F.3d 63, 74 (2d Cir. 1996). Compare with Rodriguez, 72 F.3d at 1061-62 (whether doctors followed requirements of Mental Health Law was a disputed issue of fact).
The medical records reflect that Anthony arrived at the psychiatric ward at 2:22 p.m. on March 7, and was admitted as an "emergency status patient" at 10:40 p.m. Although it appears that Anthony was retained for just over eight hours before she was admitted, plaintiff has not claimed that her due process rights were violated by this two-hour delay.
The motion by HHC to dismiss the Section 1983 claims against it is granted.
C. ADA Claims Against the City, Collegio, and Migliaro
Anthony seeks summary judgment on her claim that defendants violated her rights under the ADA by arresting and hospitalizing her based upon her disability, and by failing to adopt policies by which officers can properly recognize and address the needs of mentally disabled people. Collegio, Migliaro, and the City have cross-moved for summary judgment on Anthony's ADA claim, primarily on the grounds that plaintiff has failed to state a claim under the ADA and that the officers' decision to seize Anthony was reasonable. Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132; Bartlett v. New York State Bd. of Law Examiners, 226 F.3d 69, 78 (2d Cir. 2000). A plaintiff can, therefore, succeed in an ADA action if she can show that she was "excluded from participation in or denied the benefits, services, programs, or activities of a public entity," or if she was "subjected to discrimination by any such entity" on account of her disability. Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000) (citation omitted).
Because there is no individual liability under Title II of the ADA, see, e.g., Hallett v. New York State Dep't of Corr. Svcs., 109 F. Supp.2d 190, 199 (S.D.N.Y. 2000) (collecting cases), and individual defendants cannot be named in their official capacity under the ADA, see Menes v. CUNY University, 92 F. Supp.2d 294, 306 (S.D.N.Y. 2000) (collecting cases), plaintiff's ADA claims against Collegio and Migliaro in their individual and official capacities are dismissed. Title II of the ADA does, however, apply to "any State or local government," and "any department, agency, special purpose district, or other instrumentality of a State or States or local government." 42 U.S.C. § 12131.
It is undisputed that Anthony is a disabled person and that the City is a public entity covered by the ADA. It is also clear that the police officers' response to the 911 call and seizure of Anthony for psychiatric evaluation are police activities or services and are, thus, covered by the ADA. See, e.g., Pennsylvania Dep't of Corrections v. Yeskey, 524 U.S. 206, 210-13 (1998) (prison-sponsored boot camp is covered by the ADA); Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir. 1998) (post-arrest transportation to the police station is covered by the ADA); Calloway v. Boro of Glassboro Dept. of Police, 89 F. Supp.2d 543, 555 (D.N.J. 2000) (investigative questioning at a police station is covered by the ADA). The question in this case is whether Anthony was discriminated against in the provision of these services or performance of these activities on the basis of her disability. ADA claims related to police investigations and arrests have been brought under two different theories. The first, the "wrongful arrest" theory, is based on a claim that police "wrongly arrested someone with a disability because they misperceived the effects of that disability as criminal activity." Gohier v. Enright, 186 F.3d 1216, 1220-21 (10th Cir. 1999). See also Lewis v. Truitt, 960 F. Supp. 175, 179 (S.D.Ind. 1997) (arresting officers allegedly arrested man because he did not respond to officers appropriately when they knew or should have known that the man could not hear); Jackson v. Inhabitants of Sanford, Civ. No. 94-12-P-H, 1994 WL 589617, at *6 (D.Me. Sept. 23, 1994) (plaintiff allegedly arrested for operating a vehicle under the influence of alcohol based upon slurred speech caused by a past stroke). The second, the "reasonable accommodation" theory, is based on a claim that, "while police properly investigated and arrested a person with a disability for a crime unrelated to that disability, they failed to reasonably accommodate the person's disability in the course of investigation or arrest." Gohier, 186 F.3d at 1220. See also Gorman, 152 F.3d at 913 (wheelchair-bound arrestee is entitled to transportation appropriate to his disability). Anthony's claim falls under neither of these theories.
Anthony's claim is that the officers' conclusion that she was a danger to herself — and, therefore, should be seized and taken for psychiatric evaluation — was due to a misperception of her disability. Although apparently no court has considered the applicability of the ADA to such a claim, one Circuit Court has relied on its analysis of the conduct under the Fourth Amendment to determine whether a plaintiff's seizure also violated the ADA. See Bates ex rel. Johns v. Chesterfield County, 216 F.3d 367, 373 (4th Cir. 2000). But see Hainze, 207 F.3d at 801 (Title II does not apply to police officers' "on-the-street" responses to incidents). For the same reasons discussed in connection with Anthony's Fourth Amendment claim, it was objectively reasonable for the officers to conclude from the totality of the circumstances that Anthony posed a danger to herself and that they were justified in removing her from Wright's apartment and taking her to the hospital. Accordingly, the motion for summary judgment on plaintiff's ADA claim by Collegio, Migliaro, and the City is granted.
Anthony additionally seeks summary judgment on her ADA claim against HHC. HHC has not moved for summary judgment on this claim, but it would be appropriate to grant HHC summary judgment on this claim were such a motion brought. Undisputed evidence reflects that Kings County Hospital's detention of Anthony for observation was reasonable in light of the totality of the circumstances and pursuant to New York Mental Hygiene Law § 9.40, see Section C, supra.
D. Conspiracy to Deprive Civil Rights Claim Against Collegio and Migliaro Anthony, Collegio and Migliaro have cross-moved for summary judgment on the claim that Collegio and Migliaro conspired to deprive Anthony of her civil rights, in violation of Section 1985. In order to recover under Section 1985, a plaintiff must establish:
(1) a conspiracy (2) for the purpose of depriving a person or class of persons of the equal protection of the laws, or the equal privileges and immunities under the laws; (3) an overt act in furtherance of the conspiracy; and (4) an injury to the plaintiff's person or property, or a deprivation of a right or privilege of a citizen of the United States.
Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999). "[T]he conspiracy must also be motivated by `some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action.'" Id. (quoting Mian v. Donaldson, Lufkin Jenrette Secs. Corp., 7 F.3d 1085, 1088 (2d Cir. 1993)). Anthony has put forth no more than Wright's conclusory allegations — speculating that the defendants acted as they did because the plaintiffs did not live in a white neighborhood — in support of this claim. This does not raise a material question of fact that a conspiracy motivated by racial animus existed. Accordingly, defendants' motion for summary judgment on plaintiff's Section 1985 claims is granted.
E. All Defendants' Alleged Interference With Wright's Right of Familial Association
The parties have cross-moved for summary judgment on Wright's claim that defendants interfered with her right of familial association. Family members have, "in general terms, a substantive right under the Due Process Clause to remain together without the coercive interference of the awesome power of the state." Tenenbaum, 193 F.3d at 600 (citation omitted). This substantive due process right is violated only if defendants' actions were "egregious" and only if these actions would have been unconstitutional "even had the [plaintiffs] been given all the procedural protections to which they were entitled." Id. (emphasis in original). Assuming that the right to intimate association with family members extends to the relationship between Anthony and Wright, see Sanitation and Recycling Industry v. City of New York, 107 F.3d 985, 996 (2d Cir. 1997), Anthony's temporary separation from Wright was not, as a matter of law, so egregious that it violated Wright's substantive due process rights, particularly considering the efforts by the police to locate Wright and that Wright remained with Anthony throughout her stay at Kings County Hospital. Compare Tenenbaum, 193 F.3d at 600 (temporary separation of parents and child so that child could be examined for abuse does not constitute a violation of the right of intimate association with family members) with Lee v. New York Dep't of Correctional Servs., No. 97 Civ. 7112 (DAB), 1999 WL 673339, at *9 (S.D.N.Y. Aug. 30, 1999) (two year false imprisonment of plaintiff's son is sufficient to state a claim for the violation of the right of intimate association with family members). Accordingly, defendants' motion for summary judgment on Wright's claim for interference with her right of familial association is granted.
F. State Law Claims
Unlike cases brought under Section 1983, municipalities can be held liable for the common law torts committed by their employees under respondeat superior. Chimurenga v. City of New York, 45 F. Supp.2d 337, 344 (S.D.N.Y. 1999).
Anthony seeks summary judgment on her claim that defendants have committed the tort of intentional infliction of emotional distress against her. Defendants assert that Anthony has not met her burden of establishing a prima facie case of intentional infliction of emotional distress. "Under New York law, a claim for intentional infliction of emotional distress requires a showing of (1) extreme and outrageous conduct; (2) intent to cause, or reckless disregard of a substantial probability of causing, severe emotional distress;
(3) a causal connection between the conduct and the injury; and (4) severe emotional distress." Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999). Defendants have only been found liable for the intentional infliction of emotional distress when "the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." Id. (citation omitted). Here, the plaintiff has, as a matter of law, provided insufficient evidence of extreme and outrageous conduct by the individual defendants, the City, or HHC. See Kerman, 1999 WL 509527, at *9. Defendants' motion for summary judgment on plaintiffs' claim of intentional infliction of emotional distress is granted.
2. Anthony's Claim of Assault and Battery Against All Defendants
Anthony seeks summary judgment on her claim that the City, Collegio, Migliaro, and HHC committed assault and battery against her when they seized and detained her. Defendants assert that Anthony has not met her burden of establishing a prima facie case of assault and battery. An assault is "an intentional placing of another person in fear of imminent harmful or offensive contact," and a battery is "an intentional wrongful physical contact with another person without consent." United Nat'l Ins. Co. v. Waterfront N.Y. Realty Corp., 994 F.2d 105, 108 (2d Cir. 1993). The same standard is used to evaluate claims of assault and battery under New York law and of excessive force under the Fourth Amendment.
Posr v. Doherty, 944 F.2d 91, 94-95 (2d Cir. 1991). Under federal or state law, a plaintiff must show that "the amount of force used was objectively unreasonable" based upon a consideration of "the perspective of the officer at the time of the arrest." Lowth v. Town of Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996). Anthony has not offered any evidence that any force used against her was "objectively unreasonable." Moreover, had Anthony suffered any injuries as a result of defendants' seizure and transport of Anthony to Kings County Hospital, the defendants would be immune from state tort liability. See N.Y. Mental Hyg. L. § 9.59; supra n. 6. Summary judgment is, therefore, granted to all defendants on Anthony's claim of assault and battery.
Defendants did not move for summary judgment on Anthony's Fourth Amendment excessive force claim. See supra n. 8.
3. Wright's Claim of False Imprisonment Against All Defendants Both sides seek summary judgment on Anthony's false imprisonment claim against all defendants. To state a cause of action for false imprisonment under New York law, a plaintiff must show that: "(1) the defendant intended to confine the plaintiff; (2) the plaintiff did not consent to the confinement;
(3) the plaintiff was aware that he was confined; and (4) the confinement was not otherwise privileged, such as confinement pursuant to a warrant or with probable cause or immunity protection." Curley v. AMR Corp., 153 F.3d 5, 13 (2d Cir. 1998).
As previously concluded, the officers and the City had probable cause to seize Anthony and take her to Kings County Hospital.
HHC's detention of Anthony was also lawful. "Commitment pursuant to Mental Hygiene Law article 9 is privileged in the absence of medical malpractice. Therefore, in order to prevail on her cause of action sounding in false imprisonment, the plaintiff must prove medical malpractice." Ferretti v. Town of Greenburgh, 595 N.Y.S.2d 494, 497 (2d Dept. 1993) (citations omitted). As described above, the undisputed evidence reflects that HHC largely followed the protocol described in Mental Hygiene Law Section 9.40 during the time it held Anthony. Plaintiff has provided no evidence of medical malpractice.
Because defendants' detention of Anthony was privileged, summary judgment is granted to defendants on Anthony's false imprisonment claim.
Plaintiffs' motion for partial summary judgment is denied in its entirety, and defendants' cross-motion for partial summary judgment is granted in its entirety. The defendants have not moved for summary judgment on: (1) Anthony's excessive force claim against Collegio, Migliaro, and the City; and (2) Anthony's ADA claim against HHC. Neither side has moved for summary judgment on Anthony's and Wright's trespass claim against Collegio and Migliaro.
A scheduling order shall be issued with this Opinion and Order.