The opinion of the court was delivered by: McMAHON, District Judge.
MEMORANDUM DECISION AND ORDER GRANTING SUMMARY JUDGMENT AS TO
DEFENDANTS ASHMAN AND GOLDEN, AND DENYING SUMMARY JUDGMENT AS TO
DEFENDANTS RAMPE, THE EASTERN HEALTHCARE GROUP, AND THE COUNTY
Plaintiffs Lurana M. Berweger and Susan E. Menon are medical
services workers. They allege that they were fired from their
jobs at the Orange County Correctional Facility ("the Jail") for
criticizing the County's Department of Mental Health, in
violation of their civil rights under 42 U.S.C. § 1983. They
also have joined a state claim under the Whistle-blower Statute,
New York State Labor Law § 740. They bring their claims against
the County of Orange ("the County"); Joseph G. Rampe, County
Executive, Chris Ashman, Commissioner of Mental Health, and
Richard Golden, County Attorney ("the Individual County
Defendants"); and Eastern Health Care Group, Inc. ("EHG").
On November 12, 1999, this Court dismissed Menon's claims
against defendant EHG. Menon remains a plaintiff in this case
against the County and the County Defendants. On March 27, 2000,
the plaintiffs discontinued their claims against the Individual
County Defendants under New York State Labor Law § 740.
All defendants have moved for summary judgment on the claims
that remain against them.
The Individual County Defendants moved for summary judgment on
the ground that there is no evidence that any county official
coerced EHG to terminate the plaintiffs or to prevent their
successor from hiring them.
EHG moved for summary judgment on the grounds that (1) EHG did
not act under color of state law; and (2) plaintiff cannot
create a genuine issue of material fact under the New York
Whistleblower Law. EHG also moved for attorneys' fees as the
prevailing party on their motion to dismiss plaintiff Menon's
claim against it, and for sanctions under Rule 11 of the Federal
Rules of Civil Procedure.
For the reasons stated below, summary judgment is granted as
to defendants Ashman and Golden, and denied as to Rampe, EHG and
the County on the 1983 claims; summary judgment is granted to
all remaining defendants on the claims arising under the New
York Whistleblower Statute; and EHG's motion for sanctions and
fees is denied.
FACTS PERTINENT TO THE MOTION
On a motion for summary judgment, the Court views the
facts most favorably to the non-moving party — in this case, the
1. Medical Care at the Orange County Jail
The County operates the Jail in Goshen, New York. It contracts
with private entities to provide medical services to inmates.
The County Executive, Joseph Rampe, has the power to award and
terminate the contracts. (Rampe Dep. at 33-34.)
From approximately 1987 to 1989, the County contracted with
Correctional Medical Services ("CMS") to perform medical
services, and from approximately 1994 to 1998 with Correctional
Physicians Services ("CPS"). On April 1, 1998, the County
contracted with Eastern Healthcare Group ("EHG") to assume the
provision of medical services.
Plaintiffs Menon and Berweger are registered nurses. They have
worked for all three private contractors who provided medical
services to inmates at the Goshen Jail. Menon was hired at the
Jail as Health Services Administrator ("HSA") in 1986,
supervising the medical unit nursing staff. Although the medical
services contractor changed periodically, Menon remained in her
position until 1997, when she was promoted to Regional Manager.
At that time, Berweger, who had been a nurse on staff at the
jail since 1990, became the HSA.
The Orange County Department of Mental Health (DMH) under its
Commissioner, Chris Ashman, provides mental health and
psychiatric services at the jail. DMH employed a psychiatrist to
prescribe psychiatric medications, but the nursing staff
employed by the vendor would only administer such prescriptions
upon written order from the psychiatrist with designated
privileges at the jail.
2. Complaints by Plaintiffs About Medical Care at the Jail
Commencing in or about 1994 and continuing through 1998,
Menon complained to Ashman and to Colonel Theodore Catletti,
Correctional Administrator, that the nurses providing care to
inmates were unable to reach the DMH psychiatrist Beneb Ting,
M.D., when needed. Until 1994, Dr. Ting had made his telephone
number available to nurses so that they could call him in an
emergency, or with questions about inmate psychiatric care.
According to Menon, Dr. Ting ceased responding to nursing staff
phone calls in or about 1994, and began leaving Orange County
for long periods of time without notifying the nurses.
When Menon complained to Ashman about Dr. Ting's failure to
provide services to inmates, he told her to use the "back-up
unit" at Arden Hill Hospital ("AHH"). However, because the
physicians at AHH did not have privileges to prescribe
medications for inmates as required by administrative standards,
Dr. Ting's authorization was still necessary to administer
medication to inmates.
Menon also complained to Ashman that Dr. Ting was
over-prescribing psychotropic medications to inmates; that the
DMH staff was failing to verify inmates' medication history
prior to prescribing psychotropic drugs; and that DMH had failed
to make adequate provision for emergency psychiatric care for
inmates. (Menon Dep. at 75-107, Catletti Dep. at 31-48). In
1995, Menon complained to Ashman that the DMH was not verifying
inmates' claims about the medications they had been taking prior
to incarceration. Menon alleges that Ashman did not take any
When Berweger became HSA in 1997, she made similar complaints
about DMH to Ken Fox, Deputy Commissioner of Mental Health.
(Berweger Dep. at 174, 26-28.)
In or about March 1998, the nursing staff sent a female inmate
to the emergency room at AHH because she was lying on the floor,
unresponsive. The inmate was a patient of the DMH. She was
diagnosed with tranquilizer poisoning and a drug overdose, as a
result of over-medication by DMH. Berweger reported this
incident to Keith McLean, vice-president and chief operating
officer of EHG. Berweger and Menon also shared with McLean their
general concerns about DMH services at the Jail.
In early June, 1998, Berweger suggested to McLean that they
report their concerns about the DMH to a higher authority.
(Berweger Dep. at 49.) After some consideration, McLean gave
Berweger permission to write a letter on EHG stationery to
Rampe. (Id.) In her letter, dated June 22, 1998, Berweger told
Rampe about the problems the medical unit had experienced from
1995 to 1998 concerning DMH services. She cited the case of the
inmate with tranquilizer poisoning, and explained how she had
sent the bill for the inmate to Ashman for payment. She wrote
that "Mr. Ashman sent a terse letter . . . feigning ignorance as
to why the bill was sent to him even though he was apprised of
the situation in writing . . ." (Ex. 2 to Ullrich Aff.) Berweger
"The situation as it exists cannot continue. We need
to be one department with the same philosophies and
24 hour access to physicians and psychiatrists that
all have the same employer so we can freely exchange
information and ideas.
"It is my hope that you will consider a change at the
jail and you will entertain a proposal to privatize
the services of the mental health department so that
the medical department and the mental health
department can work together professionally to
deliver quality care to the inmates of Orange
After Rampe received the letter, Catletti called Berweger to
his office. He told her that Rampe was "furious" that she had
criticized Ashman. (Berweger Dep. at 39, 219.) Rampe made no
attempt to contact Berweger in response to her letter, and
refused to speak to McLean about it. (Rampe Dep. at 82.)
On or about July 8, 1998, upon McLean's order, Berweger
prepared a document detailing all of the "concerns" that the
jail's Medical Department had with DMH. On or about July 9,
1998, Menon delivered this document to Gary Greenwald, Esq.,
attorney for defendant EHG and to Spencer McLaughlin, an Orange
Menon also met with McLaughlin to discuss problems at DMH on
that same day. (Menon Dep. at 246-248.) As a result, McLaughlin
phoned and met with Ashman concerning Menon's complaint, as did
another legislator, Bernard Winstanley,