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October 13, 1994



The opinion of the court was delivered by: GERARD L. GOETTEL


 Evelyn Blue, d/b/a, New Paltz Nursing Home ("Plaintiff"), brings this action for declaratory and injunctive relief and damages caused by alleged violations of her rights under the Fourth, Fifth and Fourteenth Amendments of the United States Constitution. Defendants, six current and former employees of the New York State Department of Health ("Defendants"), now move for summary judgment on grounds of qualified immunity and failure to state a claim on which relief can be granted.


 Plaintiff owns and operates a seventy-nine bed nursing home in New Paltz, New York. Operated by Plaintiff and her family since it opened in 1955, the nursing home houses elderly people who are too ill or infirm to care for themselves. The nursing home is a participant in federal Medicare and Medicaid programs, and care for an unspecified portion of its resident population is funded under those programs.

 Participation in Medicare and Medicaid is conditioned on compliance with comprehensive regulations designed to protect residents from mistreatment. The federal Health Care Financing Administration ("HCFA"), a subdivision of the Department of Health and Human Services ("HHS"), administers these two programs. In New York, the HCFA has contracted with the New York State Department of Health ("NYSDOH") to monitor compliance with the federal Medicare and Medicaid regulations. Under this agreement, NYSDOH conducts periodic surveys or inspections of regulated facilities and investigates complaints and allegations of neglect and abuse.

 NYSDOH's mandated periodic surveys are at the heart of this dispute. The surveys are conducted in accordance with federal law, which requires that each nursing home be subject to an unannounced "standard survey" at least once every fifteen months. 42 U.S.C. § 1395i-3(g)(2)(A). If a standard survey reveals substandard quality of care the facility must undergo an "extended survey." Id. § 1395i-3(g)(2)(B). In addition, "any other facility may, at the Secretary's or State's discretion, be subject to such an extended survey (or a partial extended survey)." Id.

 Both standard and extended surveys must be conducted in accordance with protocols established by HHS. Id. § 1395i-3(g)(2)(C). The HHS Survey Protocol for Long Term Care Facilities (the "Survey Protocol") breaks up the standard survey into seven distinct tasks and establishes guidelines for the overall performance of the survey. The Survey Protocol also sets some minimum requirements for conduct of the survey, such as minimum resident sample sizes.

 Two rounds of NYSDOH surveys and an administrative enforcement proceeding provide the factual underpinning for Plaintiff's claims. In August 1990, NYSDOH conducted a survey of the New Paltz Nursing Home. According to Plaintiff, this 1990 survey resulted in only one "minor" citation and Plaintiff has no complaints about NYSDOH's conduct. In October 1990, the Commissioner of NYSDOH upheld a tube-feeding method used by the nursing home after a long, hard-fought administrative enforcement proceeding that had begun well before the 1990 survey.

 The second relevant round of surveys began on September 3, 1991 with a standard survey and included three follow-up surveys. Plaintiff argues that in these surveys Defendants subjected the nursing home to unacceptably intense scrutiny and failed to follow mandated survey procedures in retaliation for the nursing home's successful defense in the tube-feeding challenge. Plaintiff brings this action pursuant to 42 U.S.C. § 1983, seeking a judgment declaring that Defendants violated Plaintiff's due process rights and right against unreasonable searches and seizures, an injunction against any further such violations, compensatory and punitive damages, and costs and attorney's fees.


 To prevail on this motion, Defendants must demonstrate "that there is no genuine issue as to any material fact and that [they are] entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In making that determination, this Court must resolve all ambiguities and draw all inferences in favor of the non-moving party. Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). Summary judgment is only warranted when no reasonable trier of fact could find for the non-moving party. Murray v. National Broadcasting Co., 844 F.2d 988, 992 (2d Cir.), cert. denied, 488 U.S. 955, 102 L. Ed. 2d 380, 109 S. Ct. 391 (1988).

 1. Qualified Immunity

 The defense of qualified immunity must be addressed first, because if Defendants are immune we do not need to assess Plaintiff's substantive claims. The Supreme Court has recognized that "resolution of immunity questions inherently requires a balance between the evils inevitable in any available alternative." Harlow v. Fitzgerald, 457 U.S. 800, 813-14, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). The Court has frequently noted that while an action for damages is often the only available relief, there is a serious "danger that fear of being sued will 'dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.'" Id. at 814 (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949, 94 L. Ed. 1363, 70 S. Ct. 803 (1950)). To this end, the Court has sought to establish a qualified immunity standard that allows insubstantial claims to be terminated on a motion for summary judgment prior to trial or even discovery.

 Under the standard announced in Harlow, a government official performing a discretionary function cannot be held personally liable to the extent his "conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 818. This is an objective test, focusing on the determination of whether the right in question was clearly established at the time the action occurred. Id.

 A. Procedural Due Process

 Plaintiff argues that her procedural due process rights were violated because Defendants cited the home for violations based on use of the same tube-feeding method that was previously upheld by the Commissioner of NYSDOH. Such "duplicative prosecution" actions have been recognized as proper procedural due process claims. Continental Can Co. v. Marshall, 603 F.2d 590 (7th Cir. 1989); see also United States v. American Honda Motor Co., 273 F. Supp. 810 (N.D. Ill. 1967). "The Supreme Court has long recognized that 'the cruelty of harassment by multiple prosecutions' can violate the Due Process clause." PHE, Inc. v. United States Dep't of Justice, 743 F. Supp. 15, 24 (D.D.C. 1990) (quoting Bartkus v. Illinois, 359 U.S. 121, 127, 3 L. Ed. 2d 684, 79 S. ...

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