behavior by plaintiff, but that he had been "hyper" for a few
days. Dr. Sankar advised her to seek an order of protection if
she felt concerned about plaintiff's violence; Meltz declined.
Plaintiff was discharged to his father on December 16, and a
follow-up appointment was scheduled for December 19, 1994.
Plaintiff disputes the above facts only to the following
extent: he claims that, although he did tell Meltz, "If you
call my parents. I'll kill you," he characterizes this merely
as "rhetorical hyperbole." He describes Meltz as a "liar, a
perjurer, and an abuser of process," and describes her arrival
at his apartment on the night he was committed as an indication
that "she did not perceive [his] words as a threat." Plaintiff
denies that he was violent or that he tried to escape from the
police in front of his apartment building and asserts that the
police and Meltz were "interested, unreliable third parties
with malicious motives." He states that the police punched him
in the face and cuffed him "without probable cause" and before
Meltz had arrived to tell the police about his threatening
behavior. Therefore, he alleges, the police used her account to
justify restraining plaintiff only after the fact. Plaintiff
further disputes the EMS report describing his irrational
behavior as it was, he argues, dictated directly by the police
rather than observed firsthand by the EMS. Plaintiff states
that he only shouted Meltz's name several times outside of her
building because he believed her doorbell was not working or
that she could not hear it; he insists that he did not curse,
scream or threaten to kill Meltz at that time. Finally,
plaintiff contends that he was never examined by and never
spoke to Dr. Sankar and that he was never "interviewed" by any
of the doctors until the interview on December 16, 1994 leading
to his release (which, according to the release forms, was
conducted and documented by Dr. Sankar).
Plaintiff commenced an action against Sharon Meltz in state
court, alleging misrepresentation, defamation, malicious
prosecution, and intentional infliction of emotional distress.
The New York State Supreme Court, Kings County, dismissed the
action by order and judgment dated April 4, 1996 on the ground
that the claims lacked merit. Leave to appeal was denied on
March 31, 1998.
Almost one year after his admission to the CPC, plaintiff
sought to file a late Notice of Claim against the State of New
York. The Court of Claims denied this application for undue
delay in filing and for failure to demonstrate a meritorious
claim. The denial was affirmed by the Appellate Division,
Second Department, on January 27, 1997, and leave to appeal was
denied on May 6, 1997.
On March 20, 1996, plaintiff filed a notice of claim against
the City of New York, the New York City Police Department and
the New York City Health and Hospitals Corporation. Plaintiff's
claims included assault, battery, false arrest, and false
imprisonment. By letter dated April 22, 1996, the City of New
York Office of the Comptroller disallowed plaintiff's notice of
claim for failure to comply with General Municipal Law § 50-e.
Plaintiff commenced this action on June 2, 1997 against
defendants Drs. Martin, Kahn, Locuratolo and Sankar. Plaintiff
filed an amended complaint on August 1, 1997. Plaintiff now
seeks a further amendment to add Dr. Rubell as a City defendant
and to seek a declaratory judgment that MHL § 9.39 is
Summary Judgment Standards
Motions for summary judgment are granted if there is no genuine
issue as to any material fact, and the moving party is entitled
to judgment as a matter of law. See Lipton v. Nature Co.,
71 F.3d 464, 469 (2d Cir. 1995). The moving party must
demonstrate the absence of any material factual issue genuinely
in dispute. See id. The court must view the inferences to be
drawn from the facts in the light most favorable to the party
opposing the motion. See Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986). In addition, the court is mindful that it
must construe liberally the claims of a pro se litigant, such
as plaintiff here.*fn2 See, e.g., Hughes v. Rowe,
449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980). However, the
non-moving party may not "rely on mere speculation or
conjecture as to the true nature of the facts to overcome a
motion for summary judgment." Knight v. U.S. Fire Ins. Co.,
804 F.2d 9, 12 (2d Cir. 1986). The party must produce specific
facts sufficient to establish that there is a genuine factual
issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317,
322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Section 1983 Claim
To state a claim under 42 U.S.C. § 1983, a plaintiff must
allege that (1) he was deprived of a right secured by the
Constitution or laws of the United States and (2) the
deprivation was committed by a person acting under the color of
state law. See Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir.
1994). As a preliminary matter, defendants do not dispute that
both the state and the city defendants qualify as individuals
"acting under the color of state law." Government officials who
are sued in their individual capacity under Section 1983 are
qualifiedly immune from civil damages "insofar as their conduct
does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.
2727, 73 L.Ed.2d 396 (1982). Rather than a generalized standard
of reasonableness, the Supreme Court has held that "the right
the official is alleged to have violated must have been
`clearly established' in a more particularized, and hence more
relevant, sense: The contours of the right must be sufficiently
clear that a reasonable official would understand that what he
is doing violates that right," and "in the light of
pre-existing law the unlawfulness must be apparent." Anderson
v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d
523 (1987). The Anderson Court further emphasized that the
crucial determination to make is not the lawfulness of an
official's actions, but whether it is "objectively legally
reasonable" for an official to believe he or she acted in
accordance with existing law. Id. at 644, 107 S.Ct. 3034.
Therefore, qualified immunity "provides ample protection to all
but the plainly incompetent or those who knowingly violate the
law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89
L.Ed.2d 271 (1986).
An involuntary civil commitment is a "massive curtailment of
liberty," Vitek v. Jones, 445 U.S. 480, 491, 100 S.Ct. 1254,
63 L.Ed.2d 552 (1980), requiring due process protection, see
Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60
L.Ed.2d 323 (1979). "As a substantive matter, due process does
not permit the involuntary hospitalization of a person who is
not a danger either to [himself] or to others [and][a]s a
procedural matter, due process does not permit continuation of
a challenged involuntary civil commitment without a hearing, at
which the substantive predicates must be established by clear
and convincing evidence." Rodriguez v. City of New York,
72 F.3d 1051, 1061 (2d Cir. 1995). However, Rodriguez recognized
that the clear-and-convincing standard of proof does not apply
to a decision whether or not to order an emergency commitment.
See id. at 1062. Rather, in order to satisfy due process for
an emergency admission, a physician's determination of a
patient's "dangerousness" must "be exercised on the basis of
substantive and procedural criteria that are not substantially
below the standards generally
accepted in the medical community." Id. Where the undisputed
facts show that it was objectively reasonable for a physician
to commit an individual involuntarily on an emergency basis,
summary judgment may be granted in favor of the defendants.
See e.g., Kulak v. City of New York, 88 F.3d 63, 76 (2d Cir.
1996); Glass v. Mayas, 984 F.2d 55, 57 (2d Cir. 1993); Sumay
v. City of New York Health and Hosp. Corp., 1998 WL 205345, at
*6 (S.D.N.Y. 1998); Richardson v. Nassau County Med. Ctr.,
840 F. Supp. 219, 222 (E.D.N.Y. 1994). Where there are questions
of fact in conflict, however, regarding the standards of the
medical profession and whether a physician's performance falls
substantially below these standards, courts have denied summary
judgment. See Rodriguez, 72 F.3d at 1063, 1065; Thompson v.
Beth Israel Med. Ctr., 1999 WL 228387, at *2 (S.D.N.Y. 1999);
Lubera v. Jewish Ass'n for Services for the Aged, 1996 WL
426375, at *7 (S.D.N.Y. 1996).
In New York, involuntary emergency commitments are governed by
MHL § 9.39 which states that:
[t]he director of any hospital maintaining adequate staff and
facilities for the observation, examination, care, and
treatment of persons alleged to be mentally ill and approved by
the commissioner to receive and retain patients . . . may
receive and retain therein as a patient for a period of fifteen
days any person alleged to have a mental illness for which
immediate observation, care, and treatment in a hospital is
appropriate and which is likely to result in serious harm to
himself or others.
The statute defines "likelihood to result in serious harm" as: