defendants to offer all of their evidence that Dr. Paiz performed the examination without providing plaintiff an opportunity to adduce evidence that he did not. Moreover, although plaintiff offers at this point nothing more than a denial that Dr. Paiz examined him, the deposition of Dr. Paiz could conceivably uncover material issues of disputed fact. See Messina v. Mazzeo, 854 F. Supp. 116, 141 (E.D.N.Y. 1994). In Messina, the defendants opposed the plaintiff's Rule 56(f) request for a continuance on the ground that they had already produced the plaintiff's medical records. Id. Judge Glasser held that, despite production of these records, it could not "be said with certainty that a deposition of [defendant physician accused of improper medical care] will not uncover material issues of disputed fact . . . " Id. The same can be said of the present situation. For all of these reasons, plaintiff has sufficiently raised a genuine issue of material fact on his procedural due process claim against Dr. Paiz to survive defendants' motion for summary judgment for failure to state a constitutional claim.
A genuine issue of material fact also exists regarding plaintiff's substantive due process claim against Drs. Sadiker, Paiz and Ohson. The court concludes that where, as here, a plaintiff sufficiently pleads that he was involuntarily committed although he did not pose the threat of harm to himself or others, hospital officials responsible for the commitment are not entitled to judgment as a matter of law on a substantive due process claim on the basis of proof that they applied the statute and found the plaintiff dangerous. Rather, defendants must show that no reasonable jury could return a verdict for plaintiff, i.e., no reasonable jury could conclude based upon the undisputed facts that this plaintiff did not pose a threat of harm to himself or others. Viewed in this way, and because of the fact-specific nature of this question, virtually every substantive due process claim in this area would survive summary judgment, except in the most extreme cases. Plaintiff's behavior in the present case did not rise to that level. Therefore, this case, like most cases, would require expert affidavits, reports and/or testimony from psychiatrists and psychologists for both sides of the dispute, and an ultimate determination by a jury, were it not for the doctrine of qualified immunity.
III. Qualified Immunity on the Substantive Due Process Claim
"Whether an official protected by qualified immunity may be held personally liable for an allegedly wrongful official action generally turns on the 'objective legal reasonableness' of the action . . . assessed in light of the legal rules that were 'clearly established' at the time it was taken." Anderson v. Creighton, 483 U.S. 635, 639, 107 S. Ct. 3034, 3038, 97 L. Ed. 2d 523 (1987) (citations omitted). The official is entitled to judgment as a matter of law by satisfying this standard, which, restated, entails a two step analysis: (1) whether the right allegedly violated was "clearly established" at the time, and if it was, (2) whether it was "objectively reasonable" for the official to believe that his or her actions did not violate that right. Ayeni v. Mottola, 35 F.3d 680, 684 (2d Cir. 1994), cert. denied, 131 L. Ed. 2d 554, U.S , 1995 U.S. LEXIS 2619, 1995 WL 16587 (April 17, 1995). To determine whether the right was clearly established at the time the official acted, the Second Circuit has stated that the court should consider: "(1) whether the right in question was defined with 'reasonable specificity'; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993) (quoting Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991), cert. denied, 503 U.S. 962, 118 L. Ed. 2d 211, 112 S. Ct. 1565, 112 S. Ct. 1565, 118 L. Ed. 2d 211 (1992)). Thus, "assertion of the privilege should be upheld unless the 'contours of the right' were 'sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Id. (quoting Anderson, 483 U.S. at 640).
On the second, "objective reasonableness" prong, summary judgment is appropriate when, "'even if the contours of the plaintiff's federal rights and the official's permissible actions were clearly delineated at the time of the acts complained of . . . it was objectively reasonable for [the official] to believe that his acts did not violate those rights." Ying Jing Gan, 996 F.2d at 532 (quoting Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987)). The Second Circuit has further refined this principle into a specific standard to apply in assessing qualified immunity in the context of substantive due process claims
arising from involuntary commitment under New York's Mental Hygiene Law:
The Supreme Court has held that "a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving in freedom by himself or with the help of willing and responsible family members." O'Connor v. Donaldson, 422 U.S. 563, 576, 95 S. Ct. 2486, 2494, 45 L. Ed. 2d 396 (1975). Accordingly, New York law has been interpreted to require a finding of dangerousness. See Matter of Scopes v. Shah, 59 A.D.2d 203, 398 N.Y.S.2d 911, 913 (3d Dep't 1977); Project Release v. Prevost, 722 F.2d 960, 973 (2d Cir. 1983). Thus, the availability of qualified immunity turns on whether it was objectively reasonable for the defendants to believe, at the time they examined [plaintiff] and in light of the information that they possessed, that [plaintiff] was dangerous."