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September 23, 1994

VICI VELAIRE, Plaintiff,


The opinion of the court was delivered by: THOMAS J. MCAVOY


 The plaintiff in the instant 42 U.S.C. § 1983 action brings suit against the named defendants alleging violations of certain rights under the constitution, as well as various state causes of action. Presently before the court are defendants' motions for summary judgment pursuant to Fed. R. Civ. P. 56(b). Judgment is hereby granted for the defendants.


 On October 16, 1991, the plaintiff Vici Velaire was visiting her mother, a patient at defendant Ellis Hospital in Schenectady New York. Responding to noises from a disturbance within the hospital room, defendant Terry Logan, a nursing assistant, entered the room and claims to have found plaintiff with her hand around the neck of her red-faced and choking mother. Joined by defendants Margaret Anne Mustone, a nurse, and Sondra Infield, a nursing supervisor, and after a disputed conversation with plaintiff, defendants summoned hospital security, which responded in the person of defendant Fred Urban, the hospital's lead security officer, and another security officer, (not a defendant in this action). While it is disputed whether Urban and the other guard ordered plaintiff to remain in the room or to leave the hospital, it is undisputed that the Schenectady Police were summoned soon thereafter.

 Defendants Schenectady police officers Michael Goldman and Michael Hamilton responded to the hospital and Logan informed them of what she had observed. The officers then entered the hospital room and observed red marks on the neck of plaintiff's 91 year-old mother. While it is disputed whether plaintiff was informed of her arrest and handcuffed while in the room, or when she attempted to walk away from the officers as they led her from the building, it is undisputed that plaintiff was arrested at the hospital, detained overnight at the Schenectady police station and arraigned the next day on charges of third-degree assault and released on bail. Those charges were dismissed against the plaintiff in January of 1992.

 Based on the above described incidents plaintiff alleges a cause of action under 42 U.S.C. § 1983 and the United States Constitution, as well as state law claims of illegal arrest, false imprisonment, negligence, malicious prosecution and intentional infliction of emotional distress. She seeks compensatory and punitive damages for these alleged violations of her rights under the Federal Constitution and her state law claims.


 All defendants have moved for summary judgment. Summary judgment is only appropriate when no genuine issues of material fact exist, and thus the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). There must be more than a "metaphysical doubt as to the material facts." Delaware & Hudson Railway Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). All ambiguities must be weighed in favor of the non-moving party, Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989), and "only when reasonable minds could not differ as to the import of the evidence is summary judgement proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991), cert. denied, 116 L. Ed. 2d 117, 112 S. Ct. 152 (1991).

 Plaintiff's cause of action under 42 U.S.C. § 1983 requires that she prove two elements against each defendant: (1) that some person has violated the plaintiff's protected rights under the U.S. Constitution or federal law; and, (2) that the person who allegedly violated such rights acted under color of state law. Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981); Gomez v. Toledo, 446 U.S. 635, 640, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980). Plaintiff's § 1983 cause of action fails under both prongs. Since defendant raises no material issues of fact as to the absence of state action on the part of defendants Ellis Hospital, Infield, Logan, Mustone and Urban, (hereinafter the "Ellis Hospital defendants") and since plaintiff has insufficiently disputed those facts which fairly support the claims of qualified immunity of Defendants Goldman and Hamilton (and hence defendant City of Schenectady) summary judgment is granted to the defendants.

 A. The Ellis Hospital Defendants:

 For plaintiff to maintain a claim under § 1983, she must show that the defendants were state actors or acting under color of state authority. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 73 L. Ed. 2d 482, 102 S. Ct. 2744, (1982). Ellis Hospital is a private, non-profit hospital and plaintiff makes no argument that either the hospital, or the individual Ellis Hospital defendants, are state actors independent of the actions of the Schenectady defendants. Nor would the facts here support such an argument. See Schlein v. Milford Hospital Inc., 561 F.2d 427 (2d Cir. 1977) (private State-regulated hospital cannot be sued under § 1983, absent sufficient nexus between the State and the challenged action of the regulated hospital).

 In her complaint, plaintiff alleged that there existed a conspiracy between the Schenectady state actors and the Ellis Hospital defendants, in connection with the conduct complained of, such that the concededly private Ellis Hospital actors could be said to have acted under color of state law within the meaning of § 1983. See Dennis v. Sparks, 449 U.S. 24, 29, 66 L. Ed. 2d 185, 101 S. Ct. 183 (1980). Plaintiff, however, does not address defendant's arguments on motion that she has failed to put forth any factual basis whatsoever in support of a conspiracy theory.

 Rather, plaintiff has tempered her allegations and now relies on a theory that the Ellis Hospital Defendant acted "pursuant to a custom or understanding between Ellis Hospital and the Schenectady Police Department" (Pltf. Memo. in Opp. at 9) and so acted under color of state law. Plaintiff relies on Adickes v. S.H. Kress and Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970) for the proposition that an agreement or understanding in which the police and a private party cooperate to violate a person's constitutional rights will serve as a basis for finding that the private actor's conduct was under color of state law. Here, plaintiff claims that his proof shows that "Ellis Hospital had an understanding with the Schenectady Police Department where hospital employees could have persons seized and 'escorted' from the hospital regardless of whether or not probable cause existed for their arrest." (Pltf. Memo in Opp. at 11).

 For evidence of this proposition, adduced in the face of the denials of such an understanding or agreement by every defendant, plaintiff points to isolated portions of the depositions of various Ellis Hospital defendants. This court finds that reading these deposition statements in a light most favorable to the plaintiff, no reasonable person could find that they assert the existence of an ...

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