Summary
noting that fact that plaintiff was brought to hospital from police custody insufficient to transform private hospital and staff into state actors for § 1983 purposes
Summary of this case from Hollman v. County of SuffolkOpinion
00 Civ. 2528 (TPG)
August 23, 2001
OPINION
Plaintiff Barbara Morse (a/k/a Reba Kalish) sues pro se and brings this action against 44 defendants, including Mayor Giuliani, former Police Commissioner Safir, Fire Commissioner VonEssen, various police officers and other New York City employees (the "City defendants"), District Attorney Morganthau and other defendants associated with his office, a number of state court judges, and other parties. The action arises out of plaintiff's arrest on July 24, 1996 and subsequent criminal trial and conviction. Morse seeks declaratory and injunctive relief, including an injunction preventing the payment of salary to the defendant officials and judges. She seeks the immediate arrest" of the defendant officials and judges. Finally, Morse requests compensatory damages in the sum of $2.5 billion and punitive damages in the same amount.
The current pleading before the court is the amended complaint. it was verified by Morse on October 31, 2000.
There are fourteen causes of action alleged in the amended complaint, denominated as follows:
First: False Arrest
Second: False Imprisonment
Third: Malicious Prosecution
Fourth: Assault and Battery
Fifth: Discrimination
Sixth: Negligence
Seventh: Abandonment
Eighth: Breach of Contract
Ninth: Harassment
Tenth: Slander and Defamation
Eleventh: Fraud
Twelfth: RICO — Obstruction of Justice
Thirteenth: Failure to Supervise
Fourteenth: Respondeat Superior
Obviously Morse is asserting a number of common law causes of action. However, in the course of her lengthy recitation, Morse lists numerous provisions of the United States Constitution and certain federal statutes which she seeks to rely upon for federal subject matter-jurisdiction.
Six motions to dismiss the amended complaint have been made. These have been filed on behalf of: (1) the state court judges, (2) the Patrolmen's Benevolent Association, (3) the Legal Aid Society defendants, (4) the defendants associated with the District Attorney's Office, (5) the defendants associated with the Beth Israel Medical Center, and (6) attorney Ira Raab. Morse has filed opposition to the motions of the state judges, the Patrolmen's Benevolent Association, and Beth Israel Medical Center defendants. There is no opposition to the motions filed by the Legal Aid Society defendants, the defendants associated with the District Attorney's Office and defendant Ira Raab.
The city defendants have made no motion but have advised that they will do so shortly.
Motion of State Court Judges
The state court judges who are sued are: Criminal Court Judges Betsy Barros, Margaret Finnery, Eugene Oliver, Eileen Rakower, Donna Recant, Robert Sackett. Judge Recant has not been served and is therefore not joined in the motion. However, the ruling which the court makes applies to the issues which involve Judge Recant. The state court judges are named in the third, sixth, eighth, ninth, eleventh and twelfth causes of action.
The Assistant Attorney General, representing the state court judges, has filed an affidavit supported by police and court records. This court is relying to a large extent on these materials, and will therefore treat the motion of the state court judges as one for summary judgment. On May 22, 2001 the court sent Morse a letter explaining its intent to decide the state court judge's motion as a motion for summary judgment rather than a motion to dismiss. Attached to the letter were copies of Rule 56 of the Federal Rules of Civil Procedure and Local Civil Rule 56.1, which describe how to respond to a motion for summary judgment. The court gave Morse until June 4, 2001 to submit any additional materials in opposition to the motion for summary judgment. She did not submit such materials.
Morse was arrested on July 24, 1996 and was charged with resisting arrest, disorderly conduct and harassment in the second degree. The misdemeanor complaint against her stated that she was standing in the middle of an intersection, yelling and obstructing vehicular and pedestrian traffic.
The prosecution was brought by the District Attorney for New York County. Morse was represented by Ira J. Raab, Esq., who is a defendant in the present action.
A series of court appearances took place beginning July 30, 1996. It appears that after negotiation an adjournment contemplating dismissal ("ACD") was granted to Morse. Morse at some point decided that she did not want an ADC, and she applied pro se to withdraw from the ADC.
The court record shows that Morse's application was to be reviewed and determined by Judge Recant. However, Judge Recant did not handle the matter. There is a note indicating that Judge Oliver made some statement about the ACD being dismissed, but apparently Judge Oliver was not the judge who resolved the matter. On January 16, 1997 Judge Barros granted Morse's motion to withdraw the ACD, and restored the charges against her.
Morse then moved to dismiss the charges. On March 10, 1997 her motion was denied by Judge Barros. Apparently, Morse was again offered an ACD. She rejected this on April 8, 1997 before Judge Barros.
On May 12, 1997 Morse advised Judge Oliver that she had an ankle injury, and as a result a warrant of some kind was stayed. It is not clear what this warrant related to.
Prior to her trial, Morse applied to be allowed to proceed pro se, and on July 23, 1997 Morse was declared pro se by Judge Sackett. On August 20, 1997 Morse made a motion for additional discovery.
At some point, Morse's case was placed on a trial list. On September 25, 1997 the case was adjourned to October 7 because of motion practice and because Morse had called the court, stating that she "had better things to do." On October 7, 1997 the trial was adjourned to November 5, 1997. On November 5, 1997 the case was adjourned to November 7, 1997 because the court had never assigned a "legal advisor" to Morse. Dru Carey was appointed legal advisor to Morse on November 7, 1997. Carey is a defendant in the present action.
The case was sent to a trial part by Judge Sackett on December 8, 1997. The case was tried by Judge Finerty to ajury beginning December 10, 1997. A verdict was handed down on December 15, 1997, finding Morse guilty on all three charges—resisting arrest, disorderly conduct, and harassment in the second degree. Judge Finerty then ordered Morse to undergo a psychiatric evaluation. Apparently Morse was due in court for sentencing on February 17, 1998. However, Morse sent Judge Finerty a note dated February 16, 1998 stating that she would be unable to attend the sentencing on the 17th and requesting an adjournment until the end of March. The note contains further comments as follows:
Meanwhile, you lack jurisdiction related to this case. I question whether the court is unbiased unprejudiced.
Will the court please take note that when lacking jurisdiction, it has no power authority to order a psychiatric evaluation or sentence.
Lacking jurisdiction a judge has no judicial immunity from prosecution.
Morse did not attend on the 17th. However, Assistant District Attorney Davidson, who is also a defendant in the present case, observed Morse outside the court building that day.
A bench warrant was issued on February 20, 1998. Morse was arrested on June 30, 1998. The exact circumstances of the arrest are unclear. Apparently Morse voluntarily appeared at 80 Centre Street and was arrested there. However, a misdemeanor complaint was issued charging that she violently resisted arrest. She was also charged with bail jumping.
An attorney by the name of Paul B. Dalnoky, not a defendant in the present action, entered the case in some way and moved to dismiss two of the counts upon which Morse was convicted on December 15, 1997, and also moved to dismiss the June 30, 1998 misdemeanor complaint. Apparently, that motion was unsuccessful. The court record shows that there was a plea of guilty to the June 30, 1998 charges.
On July 10, 1998 Judge Oliver imposed sentence on both the December 15, 1997 conviction and the June 30, 1998 charges to which Morse had entered a guilty plea. Morse was given concurrent sentences of 15 days in jail and 3 years probation.
Apparently Morse served her jail sentence, but there were problems regarding Morse's probation. The court record indicates that warrants were issued for her arrest.
On October 31, 2000 Morse was arrested in the Fifth Precinct Station. While the police were attempting to arrest her on two open warrants, Morse resisted the arrest. The police finally succeeded in effecting the arrest. A misdemeanor complaint was filed, charging Morse with five crimes growing out of this incident.
The record before the court in the current federal action does not show what disposition, if any, has been made as to the October 31, 2000 arrest, except that the court record shows that on November 1, 2000, Morse appeared in criminal court and was ordered to reappear on November 3, 2000, at which time she failed to be in court. A bench warrant was issued on November 3, 2000.
In the unnumbered paragraphs, which appear toward the beginning of the amended complaint, prior to the enumerated causes of action, there are certain allegations against the defendant judges. Morse alleges that Judge Barros denied Morse due process in denying a motion to preserve records and to dismiss the first criminal case. It is said that Judge Sackett signed two subpoenas duces tecum on July 23, 1997 and "deleted most of the due process requests." "Numerous judges" are alleged to have refused to compel the Police Department to produce a "command log." Morse alleges that the trial judge, Judge Finerty, concealed and covered up facts that would have controverted the evidence presented in the case.
In connection with the numbered causes of action, under the heading of Malicious Prosecution, it is alleged that the judge defendants, especially Judges Finerty and Oliver, provided a trial setting for malicious prosecution, and there is a general allegation that the defendant judges violated the rules and regulations of the Criminal Court. Under the Negligence heading, it is alleged that Judge Finerty improperly failed to dismiss the case at trial and Judge Rackower improperly incarcerated Morse at Riker's Island to serve the 15-day sentence, despite Judge Rackower being aware that she did not have lawful jurisdiction to hold Morse. There are conclusory allegations under the headings of Breach of Contract, Harassment, Fraud and RICO, charging illegal procedures and acts on the parts of the defendant Judges.
It is apparent that there is no merit whatever in Morse's claims against the defendant judges under either federal or state law. The start of all the trouble was the incident of July 24, 1996. It is evident from Morse's own pleading that the charges against her that grew out of this incident were not in the slightest degree falsely or maliciously contrived. Morse admits that she and her father were in a street trying to take photographs of an alleged defect in the street, and that they were requested by the police to halt this activity. Although Morse alleges that this request was unjustified, it is apparent from her pleading that she and her father failed to obey the police, thus leading to her arrest. Morse claims that the arrest was improper, and further claims that the police used unnecessary force, but the occurrence of an incident in which Morse disobeyed the police is basically admitted. See Pars. 44-51
Morse was surely entitled to defend herself against the charges and she had a right to due process of law in the New York Court system. The judicial officers of that system, of course, had a duty to ensure that she received due process. However, it is clear from the evidence discussed above that Morse received due process. There is no evidence to support Morse's assertions that the state court proceedings were procedurally deficient or that any of the state court judges lacked jurisdiction over her. There is also no evidence that the state court judges violated court rules or covered up exculpatory evidence. Morse had the opportunity to avoid trial and conviction entirely through the ACD process but refused this benefit. The motion of the state court judges is granted, and the amended complaint is dismissed as to them.
Motion of the Patrolmen's Benevolent Association
At some point, Morse filed a complaint with the Civilian Complaint Review Board, apparently complaining of mistreatment by the police in connection with the July 24, 1996 incident. The Patrolmen's Benevolent Association is alleged to have represented the police before the CCRB. The amended complaint in the present federal court action states in the introduction:
PBA officials knew or should have known facts and circumstances prior to representing Pos [police officers] at the CCRB. PBA attorney conspired to suborn perjury, and obstructed justice to obtain the exoneration" of Pos. The PBA is culpable for these felonious acts, and are accessories after the fact to the false arrest, etc.
In her eleventh cause of action, labelled "Fraud," Morse alleges:
Def PBA.. . knew of should have known facts and circumstances prior to representing Def Pos at Def CCRB "investigation," and that no accusations existed against Plaintiff instead also took part in a fraud upon the court, N Y City, State, Federal government and Plaintiff
In her fourteenth cause of action, "Failure to Supervise," Morse states:
Def PEA and Attorney Def James Keegan did have specific knowledge of material evidence vindicating plaintiff. Instead the PBA suborned perjury of Def Pos who freely gave perjured statements and did obstruct justice with intent to conceal and cover up their felonious and negligent acts at the CCRB "investigation" involved the PEA as an accessory during and after the fact to the obstruction of justice.
The above-quoted portions of the amended complaint are the only allegations made by Morse against the PEA. The allegations are entirely lacking in the kind of facts necessary for a proper pleading. Statements about suborning perjury, obstructing justice, taking part in a fraud on the court, knowledge of material evidence vindicating plaintiff — all these are entirely conclusory without the slightest specification. There is no pleading of any valid cause of action against the Patrolmen's Benevolent Association.
Motion of the Beth Israel Defendants
Morse alleges that following her arrest on July 24, 1996 she was taken to the Beth Isreal Medical Center ("BIMC") for a psychiatric examination against her will. She claims that, while at BIMC, she requested medical treatment for injuries sustained during her arrest, but that BIMC personnel refused to administer treatment.
Specifically, Morse claims that defendant Dr. Prikhojan first spoke with her three hours after her arrival, and asked her about her impression of what had happened. Morse discussed the circumstances of her arrest, and complained that she had not received food, water or medical treatment. Dr. Prikhojan then left the room and returned 20-30 minutes later with food, accompanied by defendant Dr. Shenker. Dr. Prikhojan then declined to continue his conversation with Morse and left for the evening. Dr. Shenker apparently did not treat Morse's alleged injuries.
Morse claims that defendant "Fran" Glennon, a supervising nurse, ordered another nurse not to administer care to Morse. In addition, Morse claims that defendant Dr. Holson, the director of emergency services insisted three times that Morse remove her clothing before any treatment would be administered. Morse states that she was already in a hospital gown. Morse was released into police custody untreated, although she claims she had an undiagnosed concussion and other injuries. Morse alleges that hospital records were falsified to conceal BIMC's involvement with the police.
Morse names the Beth Israel defendants in several of her listed causes of action. Within the listed causes of action, Morse makes reference to a variety of additional statutes and common law theories. The court has distilled the following claims against the Beth Israel defendants from Morse's recitation:
1. Claims under the Americans with Disabilities Act ( 42 U.S.C. § 12101);
2. Claims under the Violence Against Women Act ( 42 U.S.C. § 13981);
3. Discrimination on the basis of race ( 42 U.S.C. § 1981);
4. Deprivation of civil rights ( 42 U.S.C. § 1983);
5. Conspiracy to interfere with civil rights ( 42 U.S.C. § 1985);
6. Negligence in failing to prevent a conspiracy to interfere with civil rights ( 42 U.S.C. § 1986);
7. Claims under the Racketeer Influenced and Corrupt Organizations Act ("RICO") ( 18 U.S.C. § 1961 et seq.);
8. False Imprisonment;
9. Violations of the First, Fourth, Fifth, Eighth and Fourteenth Amendments of the United States Constitution;
10. Negligence;
11. False imprisonment.
The amended complaint does not clearly state how the factual scenario described above gave rise to each of these claims.
The Beth Israel defendants have moved to dismiss the amended complaint on the ground that it fails to state a claim against them. In addition, defendants Prikhojan, Shenker, Holson and Glennon assert that the court does not have personal jurisdiction over them because Morse failed to personally serve them with the summons and amended complaint. Morse opposes the motion to dismiss the amended complaint.
The court's record shows that Morse properly served defendants Holson, Shenker and Glennon. However, defendant Prikhojan was not properly served. Morse apparently attempted to serve Dr. Prikhojan by serving the law firm of Melito Adolfsen. However, an affidavit submitted by Abe M. Rychik, an attorney with Melito Adolfsen, states that "[n]either the law firm of Melito Adolfsen nor I have ever been authorized to accept service of process on [Dr. Prikhojan's] behalf." The court's file contains a U.S. Marshal's Process Receipt and Return of Service unexecuted as to defendant Prikhojhan. Therefore, the court lacks personal jurisdiction over Prikhojhan, and the amended complaint is dismissed as to him. The remainder of this opinion will discuss the various causes of action asserted by Morse against Holson, Shenker, Glennon and BIMC. However, the reasoning applies as well to Prikhojan.
Americans with Disabilities Act
To state a claim under the Americans with Disabilities Act ("ADA"), a Morse must allege that she is disabled as defined by the statute and that a person who operates, a place of public accomodation discriminated against her on the basis of her disability. Detko v. Blimpies Restaurant, 924 F. Supp. 555, 557 (S.D.N.Y. 1996). However, "temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities. Such impairments may include, but are not limited to, broken limbs, sprained joints, concussions, appendicitis, and influenza." 29 C.F.R. Pt. 1630.2(j) App.
Morse claims that her fractured foot was a disability under the Americans with Disabilities Act. As stated in the guidelines, broken bones are usually not considered disabilities. See also Rodriguez v. DeBuono, 44 F. Supp.2d 601 (S.D.N.Y. 1999). Morse has not indicated why she believes that her fracture should be treated differently. The court finds that Morse's fracture was not a disability under the ADA, and dismisses the claims against the Beth Israel defendants pursuant to the ADA.
Violence Against Women Act
In United States v. Morrison, the United States Supreme Court declared that the civil rights remedy of the Violence Against Women Act ("VAWA") was unconstitutional. 529 U.S. 598 (2000). Morse, in her brief, states that the Supreme Court decision was "improvident" and argues that "Congress was within its right to create VAWA."
This court is, of course, bound by the Morrison decision. Morse does not have a cause of action under VAWA. Her claims pursuant to VAWA are dismissed.
Section 1981 42 U.S.C. § 1981 is primarily a proscription of race discrimination in the execution, administration, and enforcement of contracts, including employment. Goodman v. Lukens Steel Co., 482 U.S. 656, 670 (1987). The protection of the statute is not limited to minorities, but extends to white persons as well. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 274 (1976). Morse is white.
However, Morse's complaint does not state a claim for discrimination based on her race. The amended complaint alleges no facts from which a court could infer that Morse was the victim of racial amnius. Indeed, the amended complaint never even mentions Morse's race. Morse's section 1981 claims are dismissed.
Sections 1983 42 U.S.C. § 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom or usage of any State. . . 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, shall be liable to the party injured in an action at law....
To recover under section 1983, Morse must allege the deprivation of a Constitutional right by a person acting under color of state law. Flagg Bros.. Inc. v. Brooks, 436 U.S. 149 (1978). As a general rule, private hospitals do not act under color of state law for § 1983 purposes. See, e.g., Blum v. Yaretsky, 457 U.S. 991 (1982); Schlein v. Milford Hosp., 561 F.2d 427 (2d Cir. 1977); Thomas v. Beth Israel Hosp. Inc., 710 F. Supp. 935 (S.D.N.Y. 1989).
Morse does not allege any circumstance indicating that the Beth Israel defendants should be viewed as acting under color of state law in this case. The fact that Morse was brought to the hospital from police custody and was released from the hospital into police custody is insufficient to transform this private hospital and its staff into state actors for section 1983 purposes. For this reason, Morse fails to state a cause of action under 42 U.S.C. § 1983.
Sections 1985 and 1986 42 U.S.C. § 1985 provides a cause of action against persons for conspiring to interfere with the civil rights of another. The amended complaint makes reference to §§ 1985(2) and (3) specifically. Both sections require a Morse to allege the existence of a conspiracy. Morse's amended complaint is rife with the conclusion that various of the defendants conspired against her. However, the amended complaint is devoid of any sufficient factual allegations.
42 U.S.C. § 1986 creates a cause of action for neglect in preventing the conspiracies prohibited in 42 U.S.C. § 1985. If no proper cause of action is alleged under 42 U.S.C. § 1985, none can exist under § 1986.
Section 1988 42 U.S.C. § 1988 provides for the award of attorney's fees to a prevailing Morse in a civil rights action brought under sections 1981, 1981a, 1982, 1983, 1985 or 1986. Because Morse's civil rights claims under the cited sections are dismissed, Morse's section 1988 claim must likewise be dismissed.
First, Fourth, Fifth, Eighth and Fourteenth Amendment
The First, Fifth and Fourteenth Amendments require state action as a necessary element for a cause of action. Hudgens v. NLRB, 424 U.S. 507 (1976); Jackson v. Metropolitan Edison Company, 419 U.S. 345 (1974). As discussed above, the Beth Israel defendants are not state actors. Therefore, Morse has no cause of action pursuant to the First, Fifth and Fourteenth Amendments.
Morse alleges nothing that is even remotely related to the Fourth Amendment, which protects the right of people to be free from unreasonable searches and seizures, or the Eighth Amendment, which protects the right of people to be free from cruel and unusual punishment. Morse's claims under these Amendments must be dismissed.
RICO
The Racketeer Influenced and Corrupt Organizations act ("RICO") prohibits various activities arising from or in connection with a "pattern of racketeering activity." 18 U.S.C. § 1962. A "[p]attern of racketeering activity requires at least two acts of racketeering activity[.]" 18 U.S.C. § 1961(5). Racketeering activity is defined as any of a list of predicate crimes set forth in 18 U.S.C. § 1961 (1). Obstruction of justice is a predicate crime under RICO.
Morse appears to claim that the Beth Israel defendants are liable under RICO for obstruction of justice. "The Twelfth Cause of Action— Obstruction of Justice (RICO)" recites the following regarding the Beth Israel defendants:
Defs EMS/EMTs and BIMC medical staff did obstruct justice by creating a false psychiatric and medical record without any means to conclude such determinations, omitting facts, evidence, and denied medical care.
This language is devoid of facts that would show a cause of action under RICO. Even the allegation that records were falsified does not suggest how this worked to obstruct justice. Finally, there is no allegation whatsoever of a pattern of obstruction of justice, or a pattern of any other wrongdoing.
Negligence
In essence, the amended complaint alleges that the BIMC and its staff was negligent in denying Morse medical care and by falsifying her medical records. The Beth Israel defendants argue that these allegations are substantially a medical malpractice claim. The Beth Israel defendants move for the dismissal of this claim on the grounds that no physician-patient relationship existed between Morse and any of the Beth Israel defendants and that the claim is barred by the statute of limitations. Morse argues that the claim is not a medical malpractice claim but a negligence claim, and is timely.
Whether the claim is one for medical malpractice or negligence, a plaintiff must allege that the defendant owed her a duty of care, that the defendant breached its duty, and that the breach resulted in damages to the plaintiff. When the duty arises from the physician- patient relationship or is substantially related to medical treatment, the breach gives rise to an action sounding in medical malpractice, not simple negligence. Stanley v. Lebetkin, 507 N.Y.S.2d 468 (2d Dept. 1986).
The amended complaint states that the Beth Israel defendants released [Morse] approximately six hours after she arrived with an undiagnosed concussion and numerous untreated painful injuries." This allegation is the only language in the pleading which even begins to establish the elements of either negligence or medical malpractice, and it is clear from this language that the claim is substantially related to medical treatment. The claim will be evaluated, therefore, as one for medical malpractice.
The statute of limitations for medical malpractice claims in New York is two-and-a-half years. N.Y. C.P.L.R. § 214-a. Any cause of action that Morse might have against the Beth Israel defendants sounding in medical malpractice arose more than two-and-a-half years prior to the filing of her complaint. The complaint and the amended complaint are, therefore, untimely with respect to these claims.
False Imprisonment
Plaintiff alleges that the Beth Israel defendants falsely imprisoned her. To establish a cause of action for false imprisonment, a plaintiff must allege that: (1) defendant intended to confine her; (2) plaintiff was conscious of the confinement; (3) plaintiff did not consent to the confinement; (4) the confinement was not. otherwise privileged. Ferretti v. Town of Greenburgh, 595 N.Y.S.2d 494 (2d Dept. 1993). Here, the amended complaint alleges that Morse was brought to the hospital by the police for a psychiatric examination. The Beth Israel defendants dealt with Morse only at the bidding of the police and are not liable. Plaintiff does not have a cause of action against the Beth Israel defendants for false imprisonment.
Motions of Other Defendants
The following defendants have made motions to dismiss which Morse has not opposed: the Legal Aid Society defendants, the defendants associated with the District Attorney's Office, and attorney Ira Raab. These motions to dismiss are granted as unopposed.
Conclusion
For the reasons stated above, the Amended Complaint is dismissed as to the State Judges, the Patrolmen's Benevolent Association, Sergio DeLaPava, the Legal Aid Society, The New York County District Attorney's Office, Robert Morganthau, the defendant Assistant District Attorneys, the Beth Israel Medical Center and its staff, and Ira Raab. The moving defendants should submit appropriate judgments of dismisal.
SO ORDERED.