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July 24, 2001


The opinion of the court was delivered by: John G. Koeltl, District Judge:


This action is brought pursuant to 42 U.S.C. § 1983 and also invokes the Court's supplemental jurisdiction over pendent state law claims. The plaintiff, Clifford J. Scheiner ("Scheiner"), alleges that he was stripped of his clinical privileges and fired from his position as an emergency room physician at Kings County Hospital Center in violation of his rights under the First and Fourteenth Amendments to the United States Constitution. The plaintiff also brings state law claims for malicious prosecution and for a violation of New York State's whistleblower statute, N.Y. Civ. Serv. Law § 75-b.*fn1 The defendants, the New York City Health and Hospitals Corporation ("HHC"), Reinaldo Austin ("Dr. Austin"), Theodore Bania ("Dr. Bania"), Bonny Baron ("Dr. Baron"), Gene Becker ("Dr. Becker"), Randall Bloomfield ("Dr. Bloomfield"), Audrey Phillips-Caesar ("Phillips-Caesar"), Louis Camilien ("Dr. Camilien"), Devitt Elverson ("Dr. Elverson"), James Fine ("Dr. Fine"), Edward Fishkin ("Fishkin"), Ronald Hartnet ("Dr. Hartnet"), Charles Hyman ("Dr. Hyman"), Jean G. Leon ("Leon"), Ronald B. Low ("Dr. Low"), Luis R. Marcos ("Dr. Marcos"), Richard Meehan ("Dr. Meehan"), Pedro Penha ("Dr. Penha"), Venkatesalu Rajagopal ("Dr. Rajagopal"), James Reilly ("Dr. Reilly"), Philip Rice ("Dr. Rice"), Martin Salwen ("Dr. Salwen"), Thonas Scalea ("Dr. Scalea"), Steven Seligman ("Dr. Seligman"), Constance Shames ("Dr. Shames"), Richard Sinet ("Dr. Sinet"), Ian Shivack ("Dr. Shivack") and Arnold Strashun ("Dr. Strashun") now move for summary judgment pursuant to Fed.R.Civ.P. 56. The plaintiff has cross-moved for partial summary judgment against Dr. Elverson, Dr. Strashun, Dr. Bloomfield, Dr. Hyman, Dr. Seligman, Dr. Philips-Caesar, Dr. Leon, Dr. Marcos, and HHC (collectively the "Responding Defendants").


The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317(1986); Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248(1986).

In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587(1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655(1962)); see also Gallo, 22 F.3d at 1223. If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). With respect to the issues on which summary judgment is sought, if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).


The following facts are not in dispute, except where noted. Kings County Hospital Center ("KCHC") is a municipal hospital and is a facility of the defendant HHC, a public corporation chartered by the State of New York. (Compl. ¶ 9; Pl.'s 56.1 St. ¶ 2; Defs.' 56.1 Counter-St. ¶ 1.) The plaintiff began employment at KCHC in 1976, first as an intern and ultimately as an attending physician. (Pl.'s 56.1 St. ¶ 1; Defs.' 56.1 St. ¶¶ 1-4; Pl.'s 56.1 Counter-St. ¶¶ 1-3.) The plaintiff worked in the Department of Emergency Medicine ("DEM") and the Urgent Care Center ("UCC") until December 5, 1995, when his clinical privileges were revoked. (Defs.' 56.1 St. ¶ 6; Pl.'s 56.1 St. ¶ 3.) The plaintiff's employment was terminated on or about March 6, 1996. (Defs.' 56.1 St. ¶ 7; Pl.'s 56. St. ¶ 4; Defs.' 56.1 Counter-St. ¶ 3.)

In the summer of 1994, defendant Phillips-Caesar became Deputy Executive Director of KCHC with supervision over various areas of hospital administration. (Defs.' 56.1 St. ¶ 8; Pl.'s 56.1 Counter St. ¶ 4.) Defendant Jean Leon began her employment at KCHC in or about July 1994 as the Interim Executive Director, and became the Executive Director in or about February 1995. (Defs.' 56.1 St. ¶ 9.) Defendant Dr. Rice, who was asked to join the staff of KCHC by defendant Dr. Scalea, began his employment at KCHC in or about July 1992 as the Director of the DEM. (Defs.' 56.1 St. ¶ 10.)

In April 1994, Dr. Rice initiated disciplinary proceedings against Scheiner by initiating a Request for Disciplinary Action ("RDA") against the plaintiff with the Chairman of the Medical Staff Committee. (Defs.' 56.1 St. ¶ 29; Third Declaration of Assistant Corporation Council Kevin J. Smith dated October 30, 2000 (hereinafter "Joint Ex."), Joint Ex. 2.) The RDA contained four allegations against the plaintiff: lack of basic medical knowledge; repeated displays of rudeness; refusal to or delay in evaluating or treating patients in violation of the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"); and, insubordination. (Joint Ex. 2 at 1.) Pursuant to the KCHC Medical Staff By-laws (Joint Ex. 1 at 33-34), the RDA was referred to an Ad Hoc Committee of the DEM ("AHC"). (Defs.' 56.1 St. ¶ 30.) The Ad Hoc Committee consisted of Drs. Low, Baron, Hartnet, and Bania. (Joint Ex. 3; Defs.' 56.1 St. ¶ 44.) Under the KCHC Medical Staff By-laws, the AHC investigates the matter and makes a report on the matter to the Medical Staff Committee ("MSC"). The KCHC Medical Staff By-laws provide that the AHC is to interview the practitioner subject to discipline, but the interview does not constitute a hearing. (Joint Ex. 1 at 33-34.)

On or about April 27, 1994, Dr. Low, a physician and faculty member within the DEM, sent the plaintiff a letter which: (1) informed the plaintiff that he was the Chairman of the AHC; (2) informed the plaintiff of the general nature of the statements made about him that were included within the RDA; (3) provided to the plaintiff a list of the medical cases that were the subject of the RDA, a statement about the complaints of rudeness regarding the plaintiff, a statement of the alleged COBRA violations, and a statement regarding the plaintiff's subordination. (Joint Ex. 3.)

On or about April 30, 1994, the plaintiff requested that he have the opportunity to review the medical records of the patient cases that were the subject of the RDA. (Defs.' 56.1 St. ¶ 41.) The plaintiff was given the opportunity to review the medical charts of the patient cases over a period of 1 to 1 1/2 hours. (Defs.' 56.1 St. ¶¶ 42-43.) On May 3, 1994, the AHC met with the plaintiff. (Defs.' 56.1 St. ¶ 44; Pls. 56.1 Counter-St. ¶ 20.) The AHC, pursuant to Article 9 of the KCHC Medical Staff By-laws, then recommended to the MSC that the plaintiff be dismissed from the KCHC Medical Staff. (Joint Ex. 1, at 34; Joint Ex. 4 at 5.)

Pursuant to the KCHC Medical Staff By-laws, the MSC is to consider the AHC report and conduct its own investigation and take whatever action it deems appropriate under the circumstances. (Joint Ex. 1 at 34-35.) The MSC that investigated the plaintiff consisted of Drs. Meehan, Camilien, Rajagopal, Reilly, Salwen, and Shames. (Defs.' 56.1 St. ¶ 53.) The MSC convened on June 3, 1994, and met with the plaintiff regarding the RDA. (Joint Ex. 5.) The MSC recommended that the President of the Medical Staff inform defendant Leon that, due to Scheiner's unsatisfactory performance, he should be dismissed. (Joint Ex. 5 at 14.) By letter dated Sept. 29, 1994, Dr. Meehan informed Leon of the MSC's recommendation regarding the plaintiff. (Joint Ex. 6.)

Subsequently, by letter dated October 11, 1994, Leon informed the plaintiff that, based upon the recommendations of the AHC and the MSC, it was proposed that the plaintiff's clinical privileges and staff membership at KCHC be revoked, and that he not be reappointed to the medical. staff at KCHC. (Joint Ex. 7.) Leon also advised the plaintiff of his right to invoke the grievance procedure pursuant to Article 10 of the KCHC Medical Staff By-laws, and set forth the grievance procedures to which the plaintiff was entitled. (Joint Ex. 7.) The letter also allegedly included a copy of the RDA. (Joint Ex. 7; Joint Ex. 11; Pl.'s 56.1 Counter-St. ¶ 22.)

Thereafter, in a November 4, 1994 letter to Dr. Meehan, the President of the Medical Staff, the plaintiff initiated the grievance procedure set forth in the KCHC Medical Staff By-laws. (Joint Ex. 11.) By letter dated December 30, 1994, Dr. Elverson informed the plaintiff that the formal grievance procedure had been commenced and that the Initial Hearing Panel ("IHP"), Step 4 of the Article 10 grievance procedures, would meet to review the matter. (Joint Ex. 18.) Under the KCHC Medical Staff By-laws, the IHP is charged with "conduct[ing] a thorough and impartial investigation of the grievance," including interviewing persons believed to have information and reviewing pertinent documents. (Joint Ex. 1 at 42.) The IHP, composed of Dr. Elverson, as Chairman, and Drs. Strashun and Wetzel, convened on January 18, 1995, January 19, 1995, and March 7, 1995. (Joint Ex. 21, Transcript dated January 18, 1995, and January 19, 1995 ("Jan. Tr.") at 1-2, 108-109; Joint Ex. 21, Transcript dated March 7, 1995 ("Mar. Tr.") at 1-2.) Prior to the start of the IHP proceedings, the plaintiffs submitted to the IHP members a written rebuttal to the RDA, which was entered as an exhibit during the IHP proceedings. (Pl.'s Ex. 1; Joint Ex. 21, Jan. Tr. at 3.) The plaintiff, Dr. Rice, Dr. Scalea and Dr. Austin testified during the IHP proceedings with respect to the allegations contained in the RDA. (Joint EX. 21.)

The plaintiff requested review by defendant Marcos, the President of HHC. (Joint Exs. 31 & 32.) As part of the plaintiff's notification to appeal to the President of HHC, the plaintiff requested an opportunity to have a personal interview with Dr. Marcos. (Joint Ex. 32.) Although the President denied the plaintiff's request to have a personal interview (Joint Ex. 33), the plaintiff was permitted to submit a written statement setting forth why the plaintiff believed that the decision to revoke his clinical privileges was erroneous. (First and Second Declarations of Assistant Corporation Council Kevin J. Smith dated September 5, 2000 (hereinafter "Defs.' Ex."), Defs.' Ex. N.) Dr. Marcos denied the plaintiff's appeal by letter dated November 13, 1995. (Joint Ex. 34.)

Shortly thereafter, on or about December 6, 1995, the plaintiff's staff and clinical privileges at KCHC were revoked and the plaintiff was informed that he would not be reappointed to the medical staff at KCHC. (Joint Ex. 36 at 5.) On or about January 24, 1996, Doctors Council, the collective bargaining agent for the plaintiff and other physicians at KCHC, filed a Step II grievance under the collective bargaining agreement in place between the City of New York and Doctors Council, claiming that the plaintiff's termination violated the collective bargaining agreement. (Defs.' Ex. P.) On March 1, 1996, the Step II review officer for HHC denied the plaintiff's Step II grievance. (Defs.' Ex. Q.) On or about March 6, 1996, the defendant Leon terminated the plaintiff. (Def. Ex. R.)

In June 1996, the plaintiff appealed the revocation of his privileges to the New York State Department of Health Public Health Council ("Public Health Council"), claiming that KCHC acted improperly in terminating his privileges. (Joint Ex. A.) On December 2, 1996, the Public Health Council rejected Scheiner's appeal, finding that KCHC had not been arbitrary or capricious in terminating the plaintiff and had not acted in bad faith or in violation of its by-laws. (Joint Ex. C.)

Also in June 1996, the plaintiff, through the Doctors Council, requested arbitration for the alleged violation of "the applicable Doctors Council collective bargaining agreement by the improper discipline and/or termination" of the plaintiff's employment. (Defs.' Ex. S.) On July 17, 1998, the arbitrator issued a decision finding that the actions of KCHC Medical Board were "not procedurally regular" under the collective bargaining agreement and its own rules and regulations. (Joint Ex. D at 56.) The arbitrator reinstated the plaintiff's clinical privileges and employment at KCHC with full back pay effective May 8, 1996, and remanded the plaintiff's status to the medical staff review procedures for a new imposition under the KCHC Medical Staff By-laws. (Joint Ex. D at 56.) HHC filed a petition to vacate the arbitration award with the New York State Supreme Court, New York County, which was denied on July 30, 1999. See New York City Health and Hospital's Corporation v. Doctors Council, Index No. 403795/98 (N.Y.Sup.Ct. Jul. 30, 1999), modified, Index No. 403795/98 (N.Y. Sup.Ct. Jan. 6, 2000) (attached to Letter from Kevin J. Smith dated July 3, 2001).*fn2

The same charges of medical incompetence that were the subject of the KCHC disciplinary proceedings which ended in the termination of the plaintiff's medical privileges were at some point referred to the New York State Department of Health's Office of Professional Medical Conduct by Dr. Rice. (Pl.'s Exs. 14 & 15.) The Office of Professional Medical Conduct investigated the allegations and concluded that, although there were indications that the plaintiff had difficulties with interpersonal relationships, under the law there was no evidence of misconduct and the Office of Professional Medical Conduct closed the case. (Pl.'s Exs. 14 & 15.)

The plaintiff filed this action on November 23, 1998. The plaintiff alleges that the initiation of the disciplinary proceedings against him was in retaliation for his outspoken criticism and complaints with respect to KCHC policy and conditions, and thus violated his First Amendment rights. (Compl. ¶¶ 75, 76.) The plaintiff also alleges that the disciplinary proceedings that culminated in the revocation of his privileges and the loss of his job were procedurally flawed, violated the KCHC Medical Staff By-laws and his right to due process under the Fourteenth Amendment. (Compl. ¶¶ 55, 72, 76.) In addition to his federal claims under 42 U.S.C. § 1983, the plaintiff also asserts state law claims for malicious prosecution and for a violation of New York State's whistleblower statute, N.Y., Civil Service Law § 75b.


In order to prevail on a claim under 42 U.S.C. § 1983, a plaintiff must satisfy two elements: "First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law." Gomez v. Toledo, 446 U.S. 635, 640(1980) (citing Monroe v. Pare, 365 U.S. 167, 171(1961)); see also Finley v. Giacobbe, 79 F.3d 1285, 1296 (2d Cir. 1996); Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). In this case, there is no dispute that the alleged actions by the defendants arose under color of state law. The ...

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