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CARLEN v. DEPARTMENT OF HEALTH SERVS. OF SUFFOLK C

January 10, 1996

ROBERT CARLEN, M.D., Plaintiff, against DEPARTMENT OF HEALTH SERVICES OF SUFFOLK COUNTY, NEW YORK, et al., Defendants.


The opinion of the court was delivered by: WEXLER

 WEXLER, District Judge

 Plaintiff Robert Carlen, a physician formerly employed by the Suffolk County Department of Health Services, brings this action under 42 U.S.C. ยง 1983 against the County of Suffolk (the "County"), the Suffolk County Department of Health Services ("DHS"), and Dr. David Harris, individually and as the former Commissioner of DHS ("Commissioner Harris"). Plaintiff alleges violations of his constitutional rights under the First, Fifth and Fourteenth Amendments, and "indirectly" under the Eighth Amendment. Presently before the Court is defendants' motion to dismiss pursuant to Rule 12(b)(1) and (6) of Federal Rules of Civil Procedure or, in the alternative, for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Because defendants have already served an answer, their motion is one for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). *fn1" For the reasons below, defendants' motion is granted.

 I. BACKGROUND

 The facts alleged in the Amended Complaint can be summarized as follows. Plaintiff was formerly employed in a part-time civil service position by the DHS as a physician at the Suffolk County Correctional Facility ("SCCF"). See Amended Complaint P 14-15. He was responsible for providing health services to prisoners at the SCCF. Id. P 5 At some point in and before 1986, a dispute arose over the extent of plaintiff's authority to use his best professional judgment in making patient medical chart entries and his duty to make other orders in his best professional judgment.

 In March 1986, and again in July 1986, plaintiff wrote to the New York State Department of Education ("DOE"), asking "whether an employed physician was permitted to follow orders affecting patient care that he himself did not agree with." Id. P 79 In response, by letter dated July 22, 1986, Commissioner Ambach of DOE allegedly wrote: "All physicians licensed to practice medicine in New York State are expected to provide the same level of care to all patients, regardless of the setting of their practice. This is a fundamental principle which cannot be compromised or abrogated under any circumstances." Id. P 80 (the "July 22 DOE Letter"). Plaintiff sent a copy of the July 22 DOE Letter to Dr. Steibel in October 1986 and to Commissioner Harris in October 1987. Id. P 81. Upon receiving this letter, Dr. Steibel immediately instituted the County's "Progressive Discipline System" against plaintiff, with the result that "everything about Dr. Carlen's work was attacked," despite plaintiff's previous satisfactory work evaluations. Id. PP 82, 88, 94-98.

 According to plaintiff, "defendants and their 'colleagues, subordinates and employees' developed and enforced policies, plans and orders that would have the effect of depriving Suffolk prisoners of adequate medical care." Id. P 20. Plaintiff, however, "stood in defendants' way by refusing to cooperate in their schemes. He repeatedly protested them, first within the department and, when that proved unavailing, to the New York State Supreme Court." Id. P 21. Because plaintiff refused to comply with defendants' purported "schemes" concerning patient care, defendants "harassed plaintiff in his professional practice at the jail and attempted to coerce and frighten him into either obeying or resigning." Id. P 24. As a result, on or about December 4, 1986, plaintiff commenced a proceeding pursuant to New York's Civil Practice Law & Rules ("CPLR") Article 78 in New York State court to enjoin Commissioner Harris, Dr. Steibel, and another of plaintiff's supervisors, Dr. Maury Greenberg ("Dr. Greenberg"), respondents therein, from interfering with plaintiff's professional judgment and performance of his professional duties in the treatment of SCCF patients. In the Article 78 proceeding, as alleged in the Amended Complaint, plaintiff

 
alleged or offered documentary evidence of respondents' actions and policies in:
 
a.) threatening him with job loss if he advised and counseled his AIDS-infected sexually active needle-using patient of his medical condition;
 
b.) suppressing AIDS and hepatitis B education for prisoners at risk;
 
c.) maintaining deliberately incomplete official medical records, with the truth recorded only in private files;
 
d.) depriving prisoner E.W., who had multiple sequelae of a gunshot wound to his abdomen, of a nutritional supplement he vitally needed;
 
e.) depriving prisoner M.V., who had repeated vomiting, weight loss and a history of stomach trouble, of a diet Dr. Carlen had ordered;
 
f.) depriving prisoner A.D. of a diet Dr. Carlen prescribed. A.D. had a history of ulcer and was doing well; his pain returned after Dr. Greenberg cancelled Dr. Carlen's diet;
 
g.) abandoning the Coumadin prisoner to mortal danger in the face of Dr. Carlen's warning;
 
h.) failing, on various occasions, to administer drugs Dr. Carlen prescribed, including special penicillin pills that were crucial to the care of one prisoner. Dr. Carlen stated that he never knew whether a medicine would reach a patient.

 The Supreme Court, Suffolk County, denied the injunction and dismissed the Article 78 proceeding by order dated April 28, 1987, on the ground that plaintiff had failed to exhaust certain administrative remedies. By decision dated May 2, 1988, the Appellate Division, Second Department, upheld the dismissal of the Article 78 proceeding for failure to exhaust administrative remedies. See Carlen v. Harris, 140 A.D.2d 288, 527 N.Y.S.2d 538 (A.D. 2d Dep't 1988), appeal denied, 540 N.Y.S.2d 1004 ...


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