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CAMINERO v. RAND

March 25, 1995

RUDECINDO CAMINERO, individually and on behalf of all others similarly situated, Plaintiffs, against The Honorable SHELDON M. RAND, in his official capacity as Judge of the Family Court, individually and on behalf of all others similarly situated; ALAN H. CHANNING, in his official capacity as Executive Director of Bellevue Hospital; JO IVEY BOUFFORD, M.D., in her official capacity as President of the New York City Health and Hospitals Corporation; and RICHARD C. SURLES, Ph.D., individually and in his official capacity as Commissioner of Mental Health for the State of New York, Defendants.


The opinion of the court was delivered by: MARY JOHNSON LOWE

 MARY JOHNSON LOWE, D.J.

 In this action, Plaintiff Rudecindo Caminero, individually and on behalf of all others similarly situated, challenges the constitutionality of Section 251 of the New York Family Court Act ("Section 251"), both on its face and as applied. *fn1"

 Currently before the Court are: (1) Plaintiff's objections to the June 30, 1994, Report and Recommendation of Magistrate Judge Buchwald ("Report"), recommending that this Court grant the motion of Defendants Boufford and Channing to dismiss for failure to state a claim upon which relief can be granted Plaintiff's individual claims against them for damages and expungement of hospital records under 42 U.S.C. § 1983 ("Section 1983") ("motion to dismiss"); *fn2" and (2) in the event that this Court adopts the Report's recommendation that the motion to dismiss be granted, Plaintiff's motion to amend the complaint. Defendants Boufford and Channing (collectively, the "City Defendants") are sued in their official capacities as the Executive Director of Bellevue Hospital ("Bellevue") and the President of the New York City Health and Hospitals Corporation ("Health and Hospitals Corporation"), respectively.

 In connection with the motion to dismiss, the Magistrate Judge requested that the parties brief the following question: *fn3"

 
Given that plaintiff was remanded to Bellevue Hospital for eleven days pursuant to court order, which if disobeyed could lead to a citation for contempt, what actions could/should defendants have taken to avoid official capacity liability under 42 U.S.C. § 1983[?]

 The Magistrate Judge found this issue dispositive of Plaintiff's claims and held that Plaintiff's complaint failed to state a claim upon which relief could be granted against the City Defendants under Section 1983. *fn4" The Report therefore recommends granting the City Defendants' motion to dismiss. The Plaintiff filed objections to this recommendation. *fn5"

 For the reasons stated herein, the Court finds that the City Defendants' motion to dismiss must be denied, and the Court therefore declines to rule on Plaintiff's motion to amend the complaint. *fn6"

 BACKGROUND

 The Magistrate Judge has thoroughly and ably set forth the allegations of Plaintiff's complaint, see Report at 5-9, and those allegations need only be summarized here.

 On October 27, 1988, Plaintiff appeared before Judge Sheldon M. Rand in New York County Family Court to contest his former wife's order of protection. Following Mrs. Caminero's comment that Plaintiff "should be seen by a doctor or somebody because I don't believe he's well and I don't trust him," Judge Rand directed that Plaintiff be examined by a court psychiatrist. The psychiatrist conducted a brief examination of Plaintiff and informed the court of her belief that Plaintiff was paranoid, posed a risk to himself or others, and required hospitalization. Judge Rand, acting pursuant to the authority conferred by Section 251, ordered that Plaintiff be remanded to the custody of the Health and Hospitals Corporation for eleven (11) days of observation. Judge Rand's order directed the Health and Hospitals Corporation not to release Plaintiff, but to return him to the Family Court. Plaintiff received neither prior notice of the Section 251 proceeding nor opportunities to obtain counsel or be heard as to his involuntary commitment.

 Bellevue Hospital, a facility maintained by the Health and Hospitals Corporation, subsequently admitted and confined Plaintiff without obtaining Plaintiff's consent and without making any independent findings that either: (1) Plaintiff was mentally ill, in need of confinement, and/or dangerous to himself or others; or (2) the evaluation ordered by Judge Rand could not be achieved by less restrictive means. Nor did Bellevue provide Plaintiff with: (1) notice of the basis of his confinement; (2) an opportunity to challenge his confinement; or (3) the assistance of counsel. Plaintiff alleges that this treatment was the result of Defendant Channing's policy of admitting and confining persons remanded to Bellevue pursuant to Section 251 ("Section 251 remandees") without: (1) determining whether less restrictive measures are available; (2) making independent findings as to dangerousness; and (3) providing the requisite procedural guarantees. Both Channing and Boufford had authority over the admissions to Bellevue of persons remanded under Section 251.

 Plaintiff was returned to Family Court on November 7, 1988 with a report from Dr. Andrea Hessel of Bellevue stating that Plaintiff had demonstrated no abnormal behavior or overt psychotic symptoms during his hospital stay. However, a court-appointed psychiatrist, who reviewed the report and spoke with Doctor Hessel, testified that Bellevue's examination was inadequate and that Plaintiff should be returned for further evaluation. On the basis of this recommendation, Judge Rand directed that Plaintiff be returned to Bellevue until November 17, 1988. Plaintiff was readmitted to Bellevue pursuant to the same policy or custom, and with the same absence of findings and procedures, that he alleges with regard to his first admission.

 Because Bellevue failed to forward its second report to the court on time, Plaintiff's hearing was rescheduled for November 28, 1988, at which time Doctor Hessel informed the court-appointed psychiatrist that she would not have admitted Plaintiff to Bellevue in the first place. On that same date, after thirty-two days of confinement, Plaintiff was permitted to return home.

 DISCUSSION

 I. Legal Standards

 A court may only grant a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Rule 12(b)(6)") if "it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Yusuf v. Vassar College, 35 F.3d 709, 713 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). In considering a motion to dismiss, a court treats all material factual allegations in the complaint as true, Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 122 L. Ed. 2d 517, U.S. , , 113 S. Ct. 1160, 1161 (1993); Cohen v. Koenig, 25 ...


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