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KOCH v. MAHMUD MIRZA

October 25, 1993

GERALD W. KOCH, D.D.S., Plaintiff,
v.
MAHMUD MIRZA, M.D., RUBINA MIRZA, D.D.S, ROBERT COFFEY, RUSSELL MASSARO, M.D., ELLIOTT G. RUBENSTEIN, JOHN O. SWEARINGEN, GENEVIEVE COLLINS, MICHAEL WEINER, C. RICHARD ORNDOFF, DAVID J. CARLINI and PHILIP D. SMITH, Defendants.


JURISDICTION

This matter was referred to the undersigned by the Hon. Richard J. Arcara on April 8, 1992 for report and recommendation on any dispositive motions. The matter is presently before the court on the Defendants M. Mirza, R. Mirza, Coffey, Rubenstein, Collins, Weiner, Orndoff, Carlini, and Massaro's motion to dismiss the complaint and the cross-claim, and Defendant Smith's cross-motion to dismiss the complaint.

 BACKGROUND

 Plaintiff, Gerald W. Koch, D.D.S., filed this complaint on October 22, 1991. Plaintiff, formerly the Director of Dental Services at the Buffalo Psychiatric Center, has raised causes of action under 42 U.S.C. §§ 1983, 1985, and 1986. Defendants, with the exception of Defendant Philip D. Smith, at the time of the events giving rise to this action, were employees of the State of New York, Division of Mental Hygiene (the "State Defendants").

 On December 4, 1991, the Defendants M. Mirza, R. Mirza, Coffey, Rubenstein, Collins, Weiner, Orndoff, and Carlini, filed a motion to dismiss the complaint on the ground that the complaint failed to state a cause of action. On December 16, 1991, Defendant Massaro also filed a motion to dismiss the complaint on the same ground. Defendant Smith filed his answer to the complaint on March 18, 1992, asserting a cross-claim against the State Defendants for indemnification. On March 25, 1992, the State Defendants filed a motion to dismiss the cross-claim which was asserted in the answer of Defendant Smith. As of the time of the filing of the motion to dismiss the complaint, Defendant Swearingen had not been served with the summons and complaint, therefore, Swearingen did not join in the motion.

 On May 22, 1992, Plaintiff filed a motion to amend the complaint to add additional parties. This motion will be discussed in a separate Decision and Order.

 On August 7, 1992, Defendant Smith filed a Memorandum of Law in support of his cross-motion to dismiss the complaint for failure to state a claim, asserted as an affirmative defense in his Answer, dated March 18, 1992.

 Following the submission of various memoranda of law, the court determined that no oral argument on the motions was necessary.

 For the reasons as set forth below, I recommend that the State Defendants' motion to dismiss the complaint should be GRANTED. I also recommend that the complaint should be dismissed as against Defendants Swearingen and Smith. Finally, I also recommend that the State Defendants' motion to dismiss the cross-claim of Defendant Smith should be deemed moot, and, as such, dismissed. Alternatively, I recommend that the State Defendants' motion to dismiss Defendant Smith's cross-claim be GRANTED.

 FACTS

 Plaintiff, a dentist, was appointed, on September 24, 1986, as the interim supervisor of the dental office at the Buffalo Psychiatric Center. *fn1" Thereafter, Plaintiff was appointed as Director of Dental Services. At the time of the events giving rise to this lawsuit, Defendant Mahmud Mirza was the Director of the Buffalo Psychiatric Facility, Defendant Rubina Mirza, his wife, was a staff dentist at the facility, Defendant Coffey was the Deputy Director of the facility, Defendant Nassaro was the Associate Medical Clinical Director of the facility and the Associate Commissioner, Medical, of the New York State Office of Mental Health, Defendant Rubenstein was the Associate Director of Personnel Services at the facility, Defendant Swearingen was the Director of Manpower Resources at the facility, Defendant Collins was the Director of Affirmative Action at the facility, Defendant Weiner was a member of the Western New York Regional Office of Mental Health, Defendant Orndoff was the Director of the Western New York Regional Office of Mental Health, and Defendant Carlini was the Deputy Director of the Western New York Regional Office of Mental Health. Defendant Smith, the only defendant who is not employed by New York State is the owner of Philip D. Smith & Associates, and is alleged to have questioned Plaintiff with regards to a workers' compensation claim.

 Plaintiff claims that he received several complaints about the professional work of Rubina Mirza, but that he was hindered in his attempts to investigate the complaints by Defendants M. Mirza, Coffey, Rubenstein, and Massaro. Plaintiff further alleges that Rubina Mirza withdrew files from plaintiff's offices without authorization, but that, upon reporting such incidents, Plaintiff was told to ignore her actions. According to Plaintiff, Defendants Weiner, Orndoff and Carlini refused to intervene in the dispute, despite being told of the difficulties with Rubina Mirza. Finally, on May 31, 1989, Plaintiff resigned his position at Buffalo Psychiatric Facility, on the basis that he was unable to continue his duties in a lawful and ethical manner.

 On June 25, 1990, Defendant Smith questioned Plaintiff regarding the incidents in the context of investigating a workers' compensation claim concerning Rubina Mirza. Plaintiff claims that the tenor of his conversation with Smith was hostile, and that the meeting appeared to be at the instigation of the State Defendants, and for the purpose of preventing Plaintiff from "speaking with regard to" his difficulties with Rubina Mirza. See, Complaint at P5.

 1. Motion to Dismiss the Complaint

 On a motion to dismiss, the court looks to the four corners of the complaint and is required to accept plaintiff's allegations as true and to construe those allegations in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Dacey v. New York County Lawyers' Association, 423 F.2d 188, 191 (2d Cir. 1969) cert. denied, 398 U.S. 929, 26 L. Ed. 2d 92, 90 S. Ct. 1819 (1970). The complaint will be dismissed only if "it appears beyond doubt" that the plaintiff can prove no set of facts which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Goldman v. Belden, 754 F.2d 1059, 1065 (2d Cir. 1985). The court is required to read the complaint with great generosity on a motion to dismiss. See Yoder v. Orthomolecular Nutrition Institute, 751 F.2d 555 (2d Cir. 1985).

 Defendants argue that Plaintiff's complaint should be dismissed for failure to state a claim for which relief can be granted. Specifically, Plaintiff has alleged that his civil rights were violated by Defendants under 42 U.S.C. §§ 1983, 1985, and 1986. Plaintiff claims that Defendants conspired to violate his rights under the First, Fourth, Fifth, and Fourteenth Amendments to the constitution by, in effect, forcing him to resign his position at the Buffalo Psychiatric Facility when he would not "credential" Dr. Rubina Mirza for her work at the facility.

 (a) 42 U.S.C. § 1983 claim

 Pursuant to 42 U.S.C. § 1983, an individual may seek damages against any person who, under color of state law, subjects such individual to the deprivation of any rights, privileges, or immunities protected by the Constitution or laws of the United States. An individual may seek damages under 42 U.S.C. § 1985 for conspiracy to interfere with that individual's civil rights if two or more persons conspire to deprive the individual of equal protection or equal privileges and immunities under the laws of the United States. Under 42 U.S.C. § 1986, any person who has knowledge of wrongs being done under 42 U.S.C. § 1985 and who refuses to act to prevent such unlawful acts, shall be liable to the injured party for their neglect to prevent the conspiracy.

 Despite giving a liberal reading to Plaintiff's Complaint, it is difficult for this court to determine which constitutional rights Plaintiff claims to have been denied. To the extent that the Complaint alleges that Plaintiff was prohibited from speaking about Dr. Rubina Mirza, the court concludes that Plaintiff is alleging that he was denied his freedom of speech in violation of the First Amendment. To the extent that Plaintiff's resignation constituted a constructive termination without a pre- or post-termination hearing, the court concludes that Plaintiff is alleging that he was denied his due process rights under the Fourteenth Amendment. To the extent that Plaintiff is claiming that his reputation was damaged by Defendants' actions, the court concludes that Plaintiff is claiming a deprivation of his liberty or property interests under the Fourteenth Amendment. The court is unable to determine from a reading of the Complaint which rights Plaintiff claims were violated under the Fourth and Fifth Amendments.

 Reading the Complaint with generosity, the court finds that Plaintiff has alleged that he was prohibited from speaking out against Dr. Rubina Mirza without putting his position at the Buffalo Psychiatric Facility in jeopardy. Plaintiff has further claimed that he was essentially forced to resign when he ...


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