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May 22, 1995

BRIAN DEMARCO, Plaintiff, against S. SADIKER, M.D., personally, EDGAR PAIZIN, M.D., personally, S. SINGH OHSON, M.D., personally, JOHN P. IAFRATE, M.D., in his official capacity as Executive Director of Pilgrim Psychiatric Center, Defendants.

The opinion of the court was delivered by: ALLYNE R. ROSS

 ROSS, United States District Judge:


 This case involves a civil rights action pursuant to 42 U.S.C. § 1983 and state law claims of false imprisonment stemming from plaintiff's involuntary confinement for twenty-one days as a patient at the Pilgrim Psychiatric Center. As the constitutional claims underlying the civil rights action, plaintiff alleges a violation of his Fourteenth Amendment right to substantive due process, claiming that he was involuntarily confined to a psychiatric hospital although he was not dangerous. Plaintiff further alleges a violation of his right to procedural due process, claiming that defendants failed to comply with the provisions of N.Y. Mental Hygiene Law § 9.37, which allows for involuntary confinement by a director of community services or his designee. *fn1" More specifically, plaintiff alleges that physician defendants Sadiker, Ohson and Paiz *fn2" authorized his involuntary hospitalization although he did not pose a danger to himself or others as a result of mental illness, First Amended Complaint, P 29; and that defendants Sadiker and Paiz failed to make the necessary determination under § 9.37 that plaintiff posed a substantial risk of physical harm to himself or others by displaying suicidal, homicidal, or other violent tendencies. Id., P 32. *fn3"


 Plaintiff, a California resident, arrived in New York on December 20, 1992, to visit friends and relatives. Demarco Affid., P 3; Def.'s Mem. of Law, at 4. In the first ten days of his stay, plaintiff voluntarily sought assistance at the emergency room of the Nassau County Medical Center (hereinafter "NCMC") on three occasions. Although the parties dispute the reasons for these visits, plaintiff acknowledges that on one occasion he complained that he had been intentionally fed an undercooked piece of chicken by his father's girlfriend. Demarco Affid., PP 7, 19; Def.'s Mem. of Law, at 5. On at least two of these visits, hospital staff members found that plaintiff verbalized paranoid ideations. Def.'s Mem. of Law, at 5; Hingerton Affid., Ex. B at 6, 11. On each of these occasions, apparently because they believed plaintiff suffered a mental illness, doctors administered a psychiatric evaluation. Id., P 8; Pl.'s Mem. of Law, at 4; Def.'s Mem. of Law, at 5. After the third visit, plaintiff was prescribed Thorazine, a psychotropic medication. Def.'s Mem. of Law, at 5; Hingerton Affid., Ex. B at 7.

 In the early morning hours of January 1, 1993, plaintiff called police to make a complaint against his step-brother and his step-brother's girlfriend for child abuse. Demarco Affid., P 9. What transpired over the next few hours is disputed. It is undisputed, however, that plaintiff turned up at the Hicksville Station of the Long Island Rail Road at 3:00 a.m. on January 1, where police observed him approaching other commuters and relating that his urine was clear. Demarco Affid., P 10; Def.'s Mem. of Law, at 6. After a brief conversation with police, during which plaintiff informed them that he had been convicted in California for possession of a controlled substance, they took him to the NCMC. Demarco Affid., P 11.

 Upon arrival at the hospital, although the extent of plaintiff's cooperation and nature of his conduct is disputed, plaintiff admits, at least, that he was frustrated, angry, and in an uncooperative mood. Demarco Affid., P 12. Further, it was necessary at some point for four security guards to subdue plaintiff and place him in four point restraints. Demarco Affid., P 12; Def.'s Mem. of Law, at 6. A nurse found in plaintiff's possession, inter alia, two bottles of urine and several objects that appeared to be self-fashioned spikes or nails, but which Plaintiff insists were spark plugs that he intended to sell for scrap value. Demarco Affid., P 18; Def.'s Mem. of Law, at 7. The staff found it necessary to administer several sedative medications in the emergency room. Demarco Affid., P 13; Def.'s Mem. of Law, at 6. Because of his earlier visits, doctors and nurses at the NCMC were familiar with plaintiff, his complaints, his history of drug use and previous hospitalization in a psychiatric institution. Demarco Affid., P 10, 12, 22; Def.'s Mem. of Law, at 7; Hingerton Affid., Ex. B, at 17.

 Plaintiff states that he only vaguely remembers being examined by Dr. Sadiker before being transferred to the Pilgrim Psychiatric Center (hereinafter "PPC"). Demarco Affid., P 14. Apparently for this reason he has not disputed, and cannot dispute, that she performed a thorough examination of plaintiff, in the course of which she found that plaintiff was "extremely paranoid", "angry", and "hostile", with "questionable impulse control" and "insight and judgment impaired." Hingerton Affid., Ex. B, at 8. Dr. Sadiker concluded that plaintiff was uncontrollable, unpredictable, and potentially dangerous to himself and others. Hingerton Affid., Ex. B, at 11-12. Plaintiff also does not dispute that Dr. Sadiker filled out forms entitled "Application for Involuntary Admission" under M.H.L. § 9.37 and "Certificate of Examination," the latter of which refers to the former for an explanation of the reasons for admission. Hingerton Affid., Ex. B, at 1-3. Defendants do not dispute that neither the "harmful to self" nor the "harmful to others" box has been checked on that Certificate. Id.

 Upon arrival at PPC, plaintiff had some contact with Dr. Paiz; the extent of this contact is a critical disputed fact. Plaintiff insists that Dr. Paiz did nothing more than hand him a form to sign. Demarco Affid., P 17, 18. Defendants assert that Dr. Paiz performed a full examination, and have produced, in support of this claim, a document entitled "Screening/Admission Note," dated January 1, 1993 at 1:00 p.m., which details Dr. Paiz's impressions of plaintiff and gives no indication of being manufactured. Hingerton Affid., Ex. B, at 14-15. Plaintiff does not dispute that, according to this document, Dr. Paiz concluded and recorded that he was "hostile," "delusional," and had "impaired insight and judgment." Hingerton Affid., Ex. B, at 14-15. The document does not explicitly state that plaintiff is a threat to himself or others, and defendants have not claimed otherwise. Id.

 As required by M.H.L. § 9.37, Dr. Ohson performed an examination of plaintiff seventy-two hours later, on January 4, 1993. Demarco Affid., P 19; Def.'s Mem. of Law, at 8. Plaintiff admits that he appeared agitated during this interview, that he "mentioned" that Dr. Ohson was collaborating with police to entrap him, that he told Dr. Ohson that he had been intentionally served undercooked chicken, that he threatened to sue Dr. Ohson for wrongful confinement, and that he walked out of the interview. Demarco Affid., P 20. Plaintiff also does not dispute that he told Ohson that, "I used to be a very dangerous man," but rather offers the affidavit of another psychiatrist to explain the statement. Stastny Affid., P 28. Plaintiff does not dispute that Ohson concluded and recorded that he was "threatening" and "potentially assaultive," Hingerton Affid., Ex. B, at 26, and that Ohson checked a box on the 72-hour Certificate which stated that plaintiff showed a tendency to harm others. Id., at 5. Finally, plaintiff does not dispute the validity of the pages and pages of progress notes in which various nurses and doctors found him threatening, menacing, agitated, verbally abusive, uncooperative and paranoid. Hingerton Affid., Ex. B, at 25-32. Plaintiff was released into the custody of his aunt on January 22, 1993, the same day on which a court hearing regarding his confinement was scheduled. Demarco Affid., P 21; Def.'s Mem. of Law, Ex. B, at 31-32.


 I. Summary Judgment Standard

 Summary judgment is appropriate when there exists no genuine issue of material fact in a case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). A disputed material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S. Ct. at 2510. The moving party bears the burden of demonstrating that no material fact is in dispute. Hurwitz v. Sher, 982 F.2d 778, 780 (2d Cir. 1992) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970)), cert. denied, U.S. , 113 S. Ct. 2345 (1993). In examining the record, the court must resolve all ambiguities against the movant and draw all favorable inferences in favor of the nonmovant. Adickes, 398 U.S. at 158-59, 90 S. Ct. at 1609; Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989). Once the moving party has made the necessary showing, however, mere allegations or denials by the non-moving party are insufficient to show that there exists a triable issue of fact. Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983). The non-moving party must instead "produce 'significant probative evidence tending to support [its position].'" Id. (quoting United States v. Pent-R-Books, Inc., 538 F.2d 519, 529 (2d Cir. 1976), cert. denied, 430 U.S. 906 (1977)). The issue of qualified immunity, in particular, is one that should be decided upon a motion for summary judgment, and before discovery, whenever possible. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982).

 II. Establishing a Constitutional Due Process Claim

 A. The Distinction Between Substantive and Procedural Due Process

 Involuntary civil commitment to a mental institution is a "massive curtailment of liberty" which requires due process Protection. Project Release v. Prevost, 722 F.2d 960, 971 (2d Cir. 1983) (quoting Vitek v. Jones, 445 U.S. 480, 491-92, 100 S. Ct. 1254, 1262-63, 63 L. Ed. 2d 552 (1980)). The Supreme Court has held, therefore, that a state may not constitutionally "confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends." O'Connor v. Donaldson, 422 U.S. 563, 576, 95 S. Ct. 2486, 2494, 45 L. Ed. 2d 396 (1975). The Court concluded that confinement of a nondangerous person violated the Fourteenth Amendment due process right to liberty, even if a state statute authorized the confinement of harmless individuals, or if the confinement was originally founded upon a constitutionally adequate basis which later disappeared. Id. at 574-75, 95 S. Ct. at 2493.

 One of the difficult issues raised by this case is the nature of the distinction between substantive and procedural due process in the context of an involuntary commitment to a psychiatric hospital. Plaintiff has argued that a critical difference exists between the procedural element of finding an individual dangerous in accordance with the mental health statute, and the substantive element of actually being dangerous as a factual matter. Defendant, on the other hand, has maintained that the two claims cannot be disentangled as a matter of law in the manner suggested by plaintiff. Defendant contends that because the entire mental hygiene statute has been upheld on both substantive and procedural due process grounds, the single fact of acting in accordance with the statute satisfies both elements. State Def.'s Supplemental Reply Mem., at 5 (citing Project Release, 722 F.2d at 971).

 The Court in O'Connor did not specify whether the hospitalized individual's substantive or procedural right to liberty under the Due Process Clause, or both, was violated, nor did it even state whether the two were distinct in that case. The Court's reasoning reveals that the distinction exists, however, because it stated that even if state procedures are followed, the right to freedom can be violated. The right can also be violated if the original, constitutional basis for the confinement ceases to exist. Thus, a substantive element must be both incorporated into the statute by which one is committed, and that substantive element must continue to be met, in order to confine someone to a psychiatric hospital. That the substantive element can be addressed wholly apart from the procedural element is implicit in the Second Circuit's decision in Glass v. Mayas, 984 F.2d 55, 57 and n.4 (2d Cir. 1993), in which the court acknowledged in a factually similar case that the plaintiff did not allege a procedural violation, and developed a qualified immunity standard based solely upon the substantive question whether the plaintiff was dangerous.

 Despite these principles, two courts appear to have held that if a defendant followed the statute and made the requisite finding of dangerousness, that alone satisfies the requirements of substantive due process. Rodriguez v. City of New York, 861 F. Supp. 1173, 1184 (S.D.N.Y. 1994); dePoel v. City of New York, 772 F. Supp. 106, 108 (E.D.N.Y. 1991). Such a conclusion, however, fails to accommodate satisfactorily the Supreme Court's substantive pronouncement in O'Connor that the involuntary commitment of a nondangerous individual violates the constitutional right to freedom, even if such a confinement is authorized by statute. Further, the conclusion that substantive due process is satisfied every time the statute is applied and a finding of dangerousness is made is not mandated by the Second Circuit's decision in Project Release, which held no more than that the statute meets the facial requirements of substantive due process. In other words, the statute requires that physicians determine whether or not the patient is "a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members of friends." O'Connor, 422 U.S. at 576, 95 S. Ct. at 2494; Project Release, 722 F.2d at 971. That the statute is facially valid, however, does not mean that, as applied to an individual case, it satisfies the substantive constitutional requirements of O'Connor, where, as a matter of determinable fact, the individual was not dangerous.

 From this analysis, it follows that, with respect to involuntary psychiatric commitments, substantive and procedural due process can be distinctly analyzed as a matter of law in the manner plaintiff suggests. Thus, to have been afforded procedural due process means to have been given the benefit of procedural safeguards to reduce the chance of an erroneous commitment. To have ...

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