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July 24, 1974

Janet GOTKIN and Paul Gotkin, Individually and on behalf of all persons similarly situated, Plaintiffs,
Alan D. MILLER, Individually and as Commissioner of Mental Hygiene of the State of New York, et al., Defendants

Travia, District Judge.

The opinion of the court was delivered by: TRAVIA


TRAVIA, District Judge.

 On several occasions between 1962 and 1970, the plaintiff Janet Gotkin was a voluntary mental patient at Brooklyn State Hospital, Long Island Jewish-Hillside Medical Center and at Gracie Square Hospital. The precipitating cause for many of these voluntary hospitalizations was a series of threatened suicide attempts. It is alleged that since September of 1970, the plaintiff Janet Gotkin has not been hospitalized or treated for any mental disorder.

 Janet Gotkin and her husband, Paul Gotkin, have co-authored a book, which is to be published by Quadrangle Books in late 1974 or early 1975, dealing with Janet Gotkin's experiences with psychiatry and, more specifically, with her medical treatment at the aforementioned hospitals. In an attempt to verify some of the factual data contained in this book *fn1" and to compare her recollection of certain incidents with the hospitals' version of what had transpired, the plaintiff Janet Gotkin wrote to the various hospitals where she had been treated and requested access to any medical records which might relate to her. Each of these hospitals, however, refused to grant the plaintiff's request.

 On April 16, 1974, the plaintiffs, Janet and Paul Gotkin, commenced the instant action, on behalf of themselves as well as on behalf of all other former mental patients who had similarly requested and were denied access to their hospital medical files, against Alan D. Miller (the Commissioner of the New York Department of Mental Hygiene), Morton B. Wallach (the Director of Brooklyn State Hospital), Charles J. Rabiner (the Director of the Hillside Medical Center) *fn2" and Marvin Lipkowitz (the Director of Gracie Square Hospital). Jurisdiction for the action is predicated upon the statutory provisions of the Civil Rights Act, Title 42 U.S.C. § 1983 and Title 28 U.S.C. § 1343. *fn3" The gravamen of the plaintiffs' complaint is that the defendants' refusal to grant the plaintiffs access to the requested medical records constituted a deprivation of the plaintiffs' rights under the First, Fourth, Ninth and Fourteenth Amendments to the United States Constitution.

 As a consequence of these alleged constitutional deprivations, the plaintiffs request this court to:

 (1) determine that this action may proceed as a class action;

 (2) issue a judgment declaring that defendants' rules, regulations, customs, policies and practices, under which all former patients are denied the right to examine their own hospital records, are unconstitutional;

 (3) issue a preliminary and permanent injunction enjoining the defendants and their agents and successors from enforcing said rules, regulations, customs, policies and practices;

 (4) issue a judgment declaring that all former patients have the right upon demand to examine and copy their own hospital records unless within a reasonable time after such demand the person having custody of the records applies for and thereafter obtains a court order denying access to the records; and

 (5) issue a preliminary and permanent injunction requiring the defendants immediately to allow the plaintiffs to inspect and copy plaintiff Janet Gotkin's complete hospital records at Brooklyn State, Hillside and Gracie Square Hospitals.

 On May 14, 1974, the state defendants, i.e., Alan D. Miller and Morton B. Wallach, *fn4" made application to this court for an order granting summary judgment in their favor and against the plaintiffs, pursuant to Rule 56(b) of the Federal Rules of Civil Procedure, upon the grounds that there exists no genuine issue of fact to be tried and that they are entitled to judgment as a matter of law. On June 3, 1974, the defendant Marvin Lipkowitz made a similar application for summary judgment and in addition made an alternative motion for the dismissal of the plaintiffs' action, under Rule 12(b)(1) of the Federal Rules of Civil Procedure, on the ground that this court lacks jurisdiction of the subject matter of the present action because the defendant is purely a private person whose actions with respect to the plaintiffs give rise to no federal constitutional rights. Subsequently, the defendant Charles A. Rabiner also moved for a dismissal of the action, pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that the facts fail to show that a constitutional deprivation has occurred or that Hillside Medical Center's actions were under color of state law. *fn5"

 From the outset, it should be observed that the plaintiff Paul Gotkin is not a proper plaintiff to this action. Nowhere in the complaint or in the plaintiffs' papers and memoranda has it been alleged that he was ever a mental patient at any of the defendant hospitals. *fn6" Nor has it been alleged that Paul Gotkin ever requested and was refused access to either his or his wife's medical records. Therefore, it cannot even be asserted that Paul Gotkin is a member of the class he now purports to represent.

 The standard for determining whether a Civil Rights complaint should be dismissed is a rather narrow one and the courts have been generally loath to dismiss such an action, unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Jenkins v. McKeithen, 395 U.S. 411, 422, 89 S. Ct. 1843, 23 L. Ed. 2d 404 (1969); Holmes v. New York City Housing Auth., 398 F.2d 262 (2d Cir. 1968). Yet, it has been uniformly held that in order to successfully maintain a cause of action under the Civil Rights Acts, a plaintiff must demonstrate: (1) that he has been denied a right, privilege or immunity secured by the Constitution and the laws of the United States; (2) that it was the defendants who subjected him to the deprivation complained of; and (3) that the defendants acted under color of state law. See, e.g., Kletschka v. Driver, 411 F.2d 436 (2d Cir. 1969); see also Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); Johnson v. Capitol City Lodge No. 74, Fraternal Order of Police, 477 F.2d 601 (4th Cir. 1973). Therefore, one of the central issues now confronting this court is whether a hospital's refusal to grant a former mental patient access to its medical records constitutes a violation of that former patient's constitutional rights. The question is decidedly one of first impression and since its resolution is pivotal to the plaintiffs' right to proceed here, this court will closely scrutinize each of the plaintiffs' claims of constitutional deprivation.


 Plaintiffs' claim of abridgment under the First Amendment is essentially founded upon a line of Supreme Court decisions which ostensibly recognizes an individual's "right to information and ideas." *fn7" Although it is beyond cavil that such a right does exist, this court believes that its tenets are totally inapplicable to the facts presented herein.

 The "right to receive information and ideas" has always been used as a necessary corollary to the right of free speech. A "speaker's" right to voice his opinions on public and controversial issues without restraint would be an empty freedom if the government could impose restrictions upon his audience's right to hear what he had to say. Thus, in Thomas v. Collins, 323 U.S. 516, 65 S. Ct. 315, 89 L. Ed. 430 (1945), the Court struck down a state law which required the registration of labor organizers before they attempted to recruit union membership. In so holding, the Court explicitly recognized the labor organizer's right to speak and the workers' corresponding right "to hear what he had to say." Id. at 534, 65 S. Ct. at 324. Similarly, in Lamont v. Postmaster General of the United States, 381 U.S. 301, 85 S. Ct. 1493, 14 L. Ed. 2d 398 (1965), the Court found a statute, which permitted the government to hold "communist political propaganda" arriving in the mails from abroad unless the addressee affirmatively requested in writing that the material be delivered to him, to be unconstitutional. The rationale for this opinion stemmed from the unjustified burden the statute placed upon the addressee's right to receive ideas.

 Outside the sphere of public or controversial issues, the "right to receive information and ideas" loses much of its vitality and justification. Moreover, the "right to receive information" has never been used by the courts as a constitutional cudgel to compel an unwilling "speaker" to impart information or ideas to any individual who requests him to. As one eminent authority has observed, the "right to hear" has only been recognized in situations where: (1) the speaker is discussing public figures, issues or other matters of social importance; (2) the speaker desires to be heard; and (3) the listeners have been given an opportunity to leave or ignore the speaker. See Forkosch, Freedom to Hear: A Political Justification of the First Amendment, 46 Wash.L.Rev. 311 (1971). Thus, plaintiffs' attempt to invoke the "right to receive information" in the context of this case, would seem to be an overly broad extension of the right and an unprecedented interpretation of the First Amendment.

 Although not raised by the plaintiffs, a question may still arise as to whether the hospitals' refusal to permit the plaintiffs access to plaintiff Janet Gotkin's medical records was tantamount to a prior restraint of the right to freedom of speech or freedom of the press. This court thinks not. Plaintiffs have already completed the first draft of their book and the ...

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