rights. We find that if Defendants subjected Plaintiff to intensified scrutiny in retaliation for her exercise of the right to petition the government, such conduct unambiguously violated clearly established constitutional law. See Musso, 836 F.2d at 743.
Defendants have presented a prima facie case that their actions were objectively reasonable because they generally comported with regulatory requirements and there was sufficient evidence of at least some regulatory violations. Plaintiff, however, has countered with specific, non-conclusory circumstantial evidence of retaliation sufficient to overcome the heightened evidentiary standard for qualified immunity.
Defendants are immune from liability with respect to Plaintiff's substantive due process claim, but not with respect to Plaintiff's procedural due process, Fourth Amendment and retaliation claims.
2. Genuine Issues of Material Fact
A. Procedural Due Process
Plaintiff argues that her procedural due process rights have been violated because Defendants have cited the home for violations based on use of the same tube-feeding method that was previously upheld by the Commissioner of NYSDOH. Defendants failed to counter this argument directly, relying on the assertion that their actions conformed with the established regulatory scheme.
As noted above, 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 (ND. Ill. 1967). Here, the key issue is whether the violations cited by Defendants were in fact the same as those contested in the 1989 administrative hearing. Plaintiff asserts that several of the violations stemming from the 1991 surveys were issued for practices associated with the tube-feeding method that was upheld by the Commissioner of NYSDOH. Defendants have not countered this assertion, and nothing in the submissions clearly establishes that some of the violations are not based on the disputed tube-feeding method. Thus, there is a question of material fact that precludes granting summary judgment for Defendants on Plaintiff's procedural due process claim.
B. Fourth Amendment
Plaintiff claims that Defendants conducted unreasonable administrative searches at the nursing home in violation of her Fourth Amendment rights. Plaintiff asserts that the surveys were unreasonable in both their inception and scope. Defendants counter that the surveys were objectively reasonable and were performed in accordance with state and federal regulations.
While the 1991 round of surveys appears to have been reasonable at its inception since it was mandated by federal statute, see 42 U.S.C. § 1395i-3 (g)(2)(A), the reasonableness of its scope is not clear. The parties dispute both the degree of scrutiny undertaken by Defendants and the manner in which the surveys were conducted, including contested allegations of harassment and intimidation of residents and staff. Genuine issues of material fact remain regarding the scope of Defendant's actions during the 1991 surveys that preclude granting summary judgment for Defendants on Plaintiff's Fourth Amendment claim.
C. Retaliatory Action
State action taken in retaliation for the exercise of a constitutionally protected right can form the basis for a Section 1983 claim, even if the action would have been proper in other circumstances. Franco v. Kelly, 854 F.2d 584, 590 (2d Cir. 1988). Here, Plaintiff asserts retaliation for exercise of the right to petition the government, a right that is "'among the most precious of the liberties safeguarded by the Bill of Rights.'" Id. at 589 (quoting United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217, 222, 19 L. Ed. 2d 426, 88 S. Ct. 353 (1967)). Since this right is substantive, it "cannot be obstructed, regardless of the procedural means applied." Morello v. James, 810 F.2d 344 (2d Cir. 1987).
Retaliation claims such as this, however, require the court to strike a difficult balance: protecting against constitutional transgressions without hobbling the government's ability to enforce the law. The Supreme Court sought to achieve this balance in Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977). In Mt. Healthy, the plaintiff claimed that the defendant's decision not to renew his contract was motivated by his exercise of his First Amendment rights. After a bench trial the district court determined that the plaintiff's constitutionally protected activity had played a "substantial" role in the decision, and found for the plaintiff. Id. at 276.
The Supreme Court recognized that the district court's approach, which focused only on the role the constitutionally protected activity played in the government's decision, "could place an employee in a better position as a result of the exercise of constitutionally protected conduct than he would have occupied had he done nothing." Id. at 285. The Court was specifically concerned with a situation where "a dramatic and perhaps abrasive incident is inevitably on the minds of those responsible for the decision to rehire, and does indeed play a part in that decision - even if the same decision would have been reached had the incident not occurred." Id. In such an instance "the constitutional principle at stake is sufficiently vindicated if such an employee is placed in no worse a position than if he had not engaged in the conduct." Id. at 285-86.
The Court fashioned a two part rule to address this concern. First, the burden is on the plaintiff to demonstrate that the protected conduct was a "substantial" or "motivating" factor in the decision. Once such a showing is made, the burden shifts to the defendant to prove by a preponderance of the evidence that it would have reached the same decision absent the protected conduct. Id. at 287. The defendant prevails if it carries this burden.
To show that its protected conduct substantially motivated Defendants' actions, Plaintiff must establish a causal connection between the protected activity and Defendants' actions in conducting the survey. Taitt v. Chemical Bank, 849 F.2d 775 (2d Cir. 1988). For this Plaintiff looks to the timing and scope of the surveys, and the personnel and procedures used by NYSDOH. With no shortage of hyperbole, Plaintiff alleges that NYSDOH has engaged in a campaign of harassment in retaliation for Plaintiff's victory in the prior tube-feeding dispute.
While Plaintiff does not dispute that a standard survey was required in 1991, Plaintiff alleges that NYSDOH came "loaded for bear." Plaintiff complains that the 1991 surveys involved excessive scrutiny, biased surveyors, improper survey tactics, flawed findings, inadequate opportunity to respond and improper enforcement activity. Plaintiff strives to present a picture of government regulators run amok, submitting twenty-five pages chronicling the government's alleged misdeeds.
The vagueness of the relevant regulatory scheme significantly helps Plaintiff in this summary judgment motion. The statutes and regulations generally establish only minimum requirements and provide guidance for implementation: they do not set maximum numbers of surveyors or specifically prohibit Defendants' alleged actions. Taken as a whole, and resolving all ambiguities in favor of Plaintiff, it appears that the 1991 surveys were at least somewhat more intensive than typical surveys. Given the timing of the surveys and the personnel involved, we cannot say that no rational trier of fact could find that the alleged intensity of NYSDOH's surveys was substantially motivated by intent to retaliate for the tube-feeding challenge.
Defendants present evidence that there were at least arguable regulatory violations in support of their position that the same results would have occurred absent Plaintiff's conduct. Further, it is clear that Plaintiff has long had a rocky relationship with the State Department of Health. Exhibits submitted by Defendants demonstrate that the facility has alleged harassment based on negative findings and threatened legal action against state regulators since at least 1972. Ultimately, however, we are left with issues of material fact regarding the existence of violations cited in support of Defendant's assertion that it would have reached the same decision absent Plaintiff's protected actions.
Although we recognize the burden that this type of claim places on the government, we cannot conclude that no rational trier of fact could find that Defendants' actions were substantially motivated by an interest in retaliation, or that Defendants' actions would not have occurred absent the protected conduct. Defendants' motion for summary judgment on the retaliation claim is denied.
Based on the foregoing, Defendants' motion for summary judgment is granted with respect to Plaintiff's substantive due process claim and denied as to all other claims.
Dated: White Plains, New York.
October 13, 1994
GERARD L. GOETTEL
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