Paiz's examination satisfied M.H.L. § 9.37. Even if the jury found that Dr. Paiz copied portions of Dr. Sadiker's notes in his own evaluation, it could reasonably conclude that, under the circumstances, doing so was not a departure from medically accepted standards. Instead, the jury could reasonably determine that Dr. Paiz was merely conserving time during a hectic day without detracting from the thoroughness of his evaluation and that the additional information that Dr. Paiz included in his evaluation forms resulted from his own psychiatric evaluation of the plaintiff.
Plaintiff argues that no reasonable juror could conclude that Dr. Paiz had conducted a sufficient examination under M.H.L. § 9.37 by 12:45 p.m., the time he signed the commitment form. However, the issue of when plaintiff's liberty interest was curtailed is a question of fact, and plaintiff has not demonstrated that Dr. Paiz arrived at a final determination to confine plaintiff at 12:45 p.m. See, e.g., Lubera v. Jewish Assoc. for Services for the Aged, 1996 U.S. Dist. LEXIS 10771, 95 Civ. 7845, 1996 WL 426375 (S.D.N.Y. July 30, 1996) (whether doctor decided to certify patient for commitment prior to examination is a question of fact); cf. Posr v. Doherty, 944 F.2d 91, 98-99 (2d Cir. 1991) ("The issue of precisely when an arrest takes place is a question of fact."); dePoel v. City of New York, 772 F. Supp. 106, 109 (E.D.N.Y. 1991) (summary judgment inappropriate when question of fact remains unresolved regarding failure to hold hearing within statutory period). A reasonable juror could conclude that although Dr. Paiz signed the form at 12:45 p.m. based on his initial evaluation of plaintiff, he had only made a preliminary determination that he might revise as a result of his continuing examination. Accordingly, plaintiff's motion for summary judgment must be denied.
B. Substantive Due Process
In its earlier opinion, this court concluded that whether plaintiff in fact suffered from a mental illness likely to result in serious harm was a genuine issue of fact material to plaintiff's substantive due process claims. 897 F. Supp. at 704. Nevertheless, the court granted summary judgment to defendants Sadiker and Ohson based on the doctrine of qualified immunity. Id. at 708. Dr. Paiz's entitlement to qualified immunity, however, remained an unresolved question of fact. Id. at 709. Because the question of whether plaintiff was sufficiently dangerous to warrant involuntary confinement remains open, the court may not grant summary judgment on plaintiff's substantive clue process claim against Dr. Paiz unless that determination is based on Dr. Paiz's qualified immunity.
C. Qualified Immunity
"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). With regard to an alleged civil commitment in violation of a patient's right to substantive due process, "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." Glass v. Mayas, 984 F.2d 55, 57 (2d Cir. 1993). Qualified immunity protects officials in the performance of their duties even if they are genuinely mistaken, but it does not protect "the plainly incompetent or those who knowingly violate the law." Hunter v. Bryant, 502 U.S. 224, 229, 112 S. Ct. 534, 537, 116 L. Ed. 2d 589 (1991). The judgment of a professional is entitled to qualified immunity unless "the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment." Youngberg v. Romeo, 457 U.S. 307, 322-23, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982).
As described above, there is a genuine issue of material fact as to whether Dr. Paiz performed an evaluation of plaintiff that comported with the requirements of M.H.L. § 9.37. There is similarly a genuine issue of material fact as to whether Dr. Paiz's performance was plainly incompetent.
See, e.g., Rodriguez, 72 F.3d at 1065 (reversing grant of summary judgment where plaintiff had presented evidence from which a jury could find that doctors' performances failed to meet generally accepted medical standards and therefore were plainly incompetent). Based on the record before the court, a reasonable juror could find deficiencies in Dr. Paiz's examination of sufficient severity to be considered objectively unreasonable and a substantial departure from accepted professional practice and standards. Demarco, 897 F. Supp. at 709. Dr. Paiz's objective reasonableness and competence are unresolved issues of fact that preclude a grant of summary judgment in this case.
D. False Imprisonment
Plaintiff has also alleged state law claims of false imprisonment. To prove a claim of false imprisonment, plaintiff must demonstrate that (1) defendant intended to confine plaintiff; (2) plaintiff was conscious of the confinement; (3) plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged. Demarco, 897 F. Supp. at 709 (citing Rubenstein v. Benedictine Hosp., 790 F. Supp. 396, 409 (N.D.N.Y. 1992); Broughton v State, 37 N.Y.2d 451, 456, 335 N.E.2d 310, 314, 373 N.Y.S.2d 87, 93 (N.Y.), cert. denied, 423 U.S. 929, 96 S. Ct. 277, 46 L. Ed. 257 (1975)). The court declined to grant summary judgment to Dr. Paiz on plaintiff's false imprisonment claim pending a determination of whether Dr. Paiz had complied with the provisions of the New York Mental Hygiene Law, thereby rendering his actions privileged. Demarco, 897 F. Supp. at 709. Because that issue remains unresolved, the court again must deny the cross-motions for summary judgment on the false imprisonment issue.
III. Plaintiff's Motion for Reconsideration of Expungement Remedy
In its previous opinion, this court granted defendant Iafrete's motion to dismiss the claim against him insofar as plaintiff sought only that Dr. Iafrete expunge his psychiatric record. Demarco, 897 F. Supp. at 709. The court premised its decision on Mental Hygiene Law § 33.14, which provides that a petitioner may seek only to seal his mental health records and may do so only by commencing a special proceeding in a New York Supreme Court. Pursuant to Local Rule 3(j), plaintiff timely requested reargument of his claim for expungement. The court has reconsidered its decision and now modifies its Order of May 22, 1995 by reversing its grant of the motion to dismiss defendant Iafrete.
Dr. Iafrete opposes plaintiff's motion for reargument, arguing that plaintiff should have raised his arguments previously. Defs.' Reply Memo at 10-11. However, as noted, plaintiff brought a timely motion for reargument on these grounds, which the court deferred pending resolution of the anticipated renewed summary judgment motion by Dr. Paiz. Moreover, "'it is well established that the interlocutory orders and rulings made pre-trial by a district judge are subject to modification by the district judge at any time prior to final judgment.'" Conrad v. Beck-Turek, Ltd., 891 F. Supp. 962, 967 (S.D.N.Y. 1995) (quoting In re United States, 733 F.2d 10, 13 (2d Cir. 1984)). Because the court has not directed entry of final judgment for Iafrete, see Order dated July 18, 1995 ("judgment will not be entered in favor of Dr. Iafrete pending resolution of the liability if any, of Dr. Paiz") and because the court's order of May 22, 1995 did not adjudicate all claims or settle the rights and liabilities of all the parties, the court's grant of Dr. Iafrete's motion to dismiss is an interlocutory order which the court may modify at any time prior to entry of final judgment. See Fed. R. Civ. P. 54(b).
Addressing the substance of plaintiff's motion for reargument, Dr. Iafrete contends that this court is bound by M.H.L. § 33.14, which provides that a New York Supreme Court may seal a patient's mental health records. In determining whether to apply state law in § 1983 actions, federal courts must follow a three-part test prescribed by 42 U.S.C. § 1988.
Burnett v. Grattan, 468 U.S. 42, 47, 104 S. Ct. 2924, 2928, 82 L. Ed. 2d 36 (1984). First, courts look to the laws of the United States to determine if they are suitable to carry the civil rights statutes into effect or whether they are deficient in that regard. 468 U.S. at 48, 104 S. Ct. at 2928. Second, if no suitable federal rule exists, courts apply the state law of the forum state. Id. Third, courts apply the state law only if it is not inconsistent with federal law or the Constitution. Id.
The civil rights statutes are 'deficient' under § 1988 if they fail to provide "rules of decision thought essential to the orderly adjudication of rights." Felder v. Casey, 487 U.S. 131, 139, 108 S. Ct. 2302, 2307, 101 L. Ed. 2d 123 (1988) (distinguishing statutes of limitation from notice-of-claim provisions because the former are indispensable to any scheme of justice). However, the existence of a right under § 1983 "implies the existence of all necessary and appropriate remedies," Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 240, 90 S. Ct. 400, 405, 24 L. Ed. 2d 386 (1969), and a federal court may choose either federal or state rules depending on whichever better serves the policies expressed in § 1983. Sullivan, 396 U.S. at 240, 90 S. Ct. at 406. While § 1983 makes no specific provision for expungement, that equitable remedy is part of federal common law and has been applied in § 1983 actions. See, e.g., Goss v. Lopez, 419 U.S. 565, 571-72, 95 S. Ct. 729, 734-35, 42 L. Ed. 2d 725 (1975) (affirming decision that had provided for expungement as remedy in § 1983 action); Bradley v. Coughlin, 671 F.2d 686, 690 n.9 (2d Cir. 1982) (section 1983 plaintiff may be entitled to expungement of prison disciplinary proceeding); Thomson v. Harmony, 65 F.3d 1314, 1321 (6th Cir. 1995) (reversing dismissal of claims seeking expungement as remedy in § 1983 action), cert. denied, 134 L. Ed. 2d 473, 116 S. Ct. 1321 (1996); Wolfel v. Morris, 972 F.2d 712, 719 (6th Cir. 1992) (affirming expungement of prison records as an appropriate § 1983 remedy); Monroe v. Thigpen, 932 F.2d 1437, 1443 (11th Cir. 1991) (remanding with instructions to expunge prison records); Knapp v. Whitaker, 757 F.2d 827, 846-47 (7th Cir.) (district court in § 1983 action properly expunged material in teacher's personnel records), cert. denied, 474 U.S. 803, 88 L. Ed. 2d 29, 106 S. Ct. 36 (1985).
See also Carey v. Piphus, 435 U.S. 247, 259, 98 S. Ct. 1042, 1050, 55 L. Ed. 2d 252 (1978) (federal courts are capable of using the common law to tailor remedies for the injury involved). That expungement may not be available in state court is irrelevant because the relief that a federal court provides in a § 1983 action is a federal rule, even if derived from state law. Sullivan, 396 U.S. at 240, 90 S. Ct. at 406. Where the right to injunctive relief exists independently of state law, the state may not burden or limit that right. Felder, 487 U.S. at 144, 108 S. Ct. at 2310 ("The burdening of a federal right . . . is not the natural or permissible consequence of an otherwise neutral, uniformly applicable state rule.").
Just as a state law cannot limit the remedies available under § 1983, it also may not limit the equitable remedies available in federal court. The remedy of expungement is a part of federal equity law, which derived from the English Court of Chancery and is separate from the state equity systems. Guaranty Trust Co. v. York, 326 U.S. 99, 105, 65 S. Ct. 1464, 1468, 89 L. Ed. 2079 (1945). As a result, even when addressing state law claims, federal courts may always utilize federal equity rules. Thus, "a federal court may afford an equitable remedy for a substantive right recognized by a State even though a State court cannot give it." Id. 326 U.S. at 106, 65 S. Ct. at 1468-69. As a state may not limit the federal court's equity powers to remedy the violation of a state-created right, it certainly may not do so when the right has been created by Congress. Cf. Howlett v. Rose, 496 U.S. 356, 375, 110 S. Ct. 2430, 2442, 110 L. Ed. 2d 332 (1990) ("The elements of, and the defenses to, a federal cause of action are defined by federal law."). Because M.H.L. § 33.14 cannot limit the remedies available in a § 1983 action nor the remedies available in federal court, the court grants plaintiff's motion to reconsider its earlier decision and, upon reconsideration, denies defendant Iafrete's motion to dismiss.
CONCLUSION AND ORDER
For the reasons explained above, summary judgment is denied to plaintiff Demarco and defendant Paiz with regard to due process and false imprisonment claims. The court's Order of May 22, 1995 is modified insofar as defendant Iafrete's motion to dismiss is denied.
Allyne R. Ross
United States District Judge
Dated: September 25, 1996
Brooklyn, New York