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AIKEN v. NIXON
September 30, 2002
WILLIAM AIKEN; AND DISABILITY ADVOCATES, INC. ON BEHALF OF ALL PRESENT AND FUTURE PATIENTS OF THE CAPITAL DISTRICT PSYCHIATRIC CENTER WHO SUBJECT TO UNLAWFUL STRIP SEARCHES AND BODY CAVITY SEARCHES, PLAINTIFFS,
JESSE NIXON JR., IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE CAPITAL DISTRICT PSYCHIATRIC CENTER AND INDIVIDUALLY; CAPITAL DISTRICT PSYCHIATRIC CENTER, A PUBLIC ENTITY; AND GAIL BELLINGER-ALLEMAN, THOMAS DESEVE, JAY EDMOND HARPER, RICHARD MONTE, JO DIBLASIO AND JEFF GLEBBA, IN THEIR OFFICIAL CAPACITIES AND INDIVIDUALLY, AND KATHLEEN CAVANAUGH, INDIVIDUALLY, DEFENDANTS
The opinion of the court was delivered by: Thomas J. McAVOY, United States District Judge.
MEMORANDUM — DECISION & ORDER
This is an action brought pursuant to Title II of the
Americans with Disabilities Act (the "ADA"),
42 U.S.C. § 12101, et seq.; § 504 of the
Rehabilitation Act of 1973 (the "Rehabilitation Act" or
"§ 504"), 29 U.S.C. § 794, et seq.;
42 U.S.C. § 1983 ("§ 1983") asserting
deprivations of rights secured by the Fourth and
Fourteenth Amendments to the United States
Constitution; and the New York State common law
asserting tort claims sounding in "assault and battery"
Defendants move pursuant to FED. R. Civ. PRO. 12(b)(6)
to dismiss plaintiffs' claims under the ADA, the
Rehabilitation Act, plaintiffs' claims for injunctive
relief, and the § 1983 claims and pendent state law
claims against defendants Nixon, Glebba, DiBlasio, and
Cavanaugh. For the reasons that follow, the motion is
granted in part and denied in part.
The case surrounds the search policy of the Capital
District Psychiatric Center ("CDPC") in Albany and the
application of that policy when patients are voluntarily
admitted there. As addressed more fully below, plaintiff
William Aiken ("Aiken") alleges that on January 19, 2000
he was illegally strip searched and body cavity searched
upon his voluntary admission to CDPC. Aiken serves as the
representative plaintiff for the association claims
brought by Disability Advocates, Inc. on behalf of all
present and future patients of the Capital District
Psychiatric Center who may be subjected to the
challenged searches, Second Amended Complaint
("complaint" or "compl.) ¶ 12,*fn1 and who
challenge the legality of the policy.
A. January 19, 2000 search
The complaint alleges that in October of 1998,
Defendant Kathleen Cavanaugh, then-CDPC Program Director
and Supervisor of the crisis nursing staff, placed a
"standing order" on Aiken's clinical record at CDPC
which ordered staff in the crisis unit of CDPC to
carefully search Aiken whenever he appeared for
admission. Compl. ¶¶ 32-33. Plaintiffs contend that
Cavanaugh lacked probable cause to issue this standing
order and that it was issued in violation of CDPC's
search policy. Compl. ¶¶ 36-40.
On January 19, 2000 Aiken sought voluntary admission
for emergency psychiatric care and treatment at CDPC's
crisis unit. Compl. ¶¶ 43, 49. He was strip searched
and visual body cavity searched by defendants DeSeve,
Harper, and Monte in a bathroom, allegedly pursuant to
the direct order of defendant Bellinger-Alleman. Compl.
¶ 51-57. Plaintiffs allege that Aiken's search was
unreasonable in scope and without probable cause or a
warrant, and therefore in violation of his
constitutional rights. Compl. ¶ 105.
Many of the defendants' arguments turn on whether this
search occurred in accordance with — or in
contravention to — the CDPC policy in issue.
Plaintiffs contend that "plaintiff Aiken and other CDPC
patients" were "searched pursuant to the illegal policy."
Compl. ¶ 104. However, the complaint also alleges
that Aiken's January 19, 2000 search deviated in certain
material respects from the requirements of
the policy. See Compl. ¶ 51-57, 65-75.*fn2 As
addressed more fully below, plaintiffs seem to argue that this search
was conducted pursuant to the authority of the policy
(which they assert is itself unconstitutional), and
further that the manner of search (the deviations from
the policy) compounded Aiken's injury.
With regard to the policy, plaintiffs contend that
CDPC's written policy authorizes unconstitutional strip
searches, visual body cavity searches, and internal body
cavity searches because these searches are allowed if
there is merely a "potential risk" or "reasonable
possibility" that the admittee possesses contraband or an
item restricted by the treatment team, but does not
require a finding of probable cause or a judicial
warrant. Compl. ¶¶ 88-105. Plaintiffs also allege
that the CDPC policy violates the ADA and Rehabilitation
Act. Compl. ¶¶ 120-127.
Inasmuch as CDPC's search policy is repeatedly
referenced in the complaint and integral to a
determination of the instant motion, pertinent portions
of that policy are recited here. See Yak v. Bank
Brussels Lambert, 252 F.3d 127, 130 (2d Cir. 2001) (On a
motion to dismiss, the court may consider "any written
instrument attached to [the complaint] as an exhibit or
any statements or documents incorporated in it by
reference.") (citation omitted).
Regarding the decision to institute a search, the policy
provides as follows:
It is recognized that CDPC staff have responsibility
for making clinical decisions in accordance with their
expertise and delegated responsibility. The decision
to search a patient is authorized when the basis for
this decision is clinical. Staff shall at all times
attempt to balance issues concerning the clinical
appropriateness or necessity of action vs. legal
aspects of patients' rights. However, the most
important consideration is the ability to provide
services in a safe and secure environment.
The decision to search a patient . . . is based upon a
determination that there exists potential risk and/or
reasonable possibility that the patient possesses an
item restricted by his or her treatment team, an item
considered to be contraband by local, state, or
federal law, or an item that is stolen.
Search Policy, part II, p. 1 (emphasis added).
Searches in non-emergency situations proceed in essentially the
same fashion with the exception that the non-emergency search needs
to be authorized by the "Program Director or designee." Id., p. 4,
¶¶ 1-3. The policy applies to individuals being screened by the
Crisis Intervention Program and, in accordance with the policy, the
Crisis staff has initiate guidelines for searches of these patients.
These guidelines do not deviate in material respect from the general
The policy delineates that "the typical and routine search" for both
emergency and non-emergency situations involves having a patient empty
his or her pockets and packages, with staff then examining the patient's
clothing to "ensure noting is concealed within the clothing." Search
Policy, p. 3, ¶ 4(a). The policy further provides that "[o]n
occasion, based on clinical judgment, a patient will be asked to submit
to a metal detector search" to be conducted by a Safety Officer. Id. at
Still further, the policy provides that:
[o]n rare occasion, based on clinical judgement, a
patient will be asked to submit to a body search and
to disrobe down to their undergarments for the
search. The Program Director, or Administrator on Call
after hours, must give permission for a strip search.
Upon reasonable belief and to prevent serious harm to
themselves, a body cavity search may be instituted
with the permission of the Program Director,
Administrator on Call after hours. Strip searches and
body cavity searches may only be conducted by or under
the supervision of a physician (resident physician
after hours). The presence of at least one same sex
staff member during a strip or body cavity search is
Id. ¶ 4(c) (emphasis added).
The policy indicates that "items obtained in a search that were
confiscated because they are restricted by the patient's treatment team
should be held by the facility until such time as the patient is
discharged . . . ." Id., p.2, § III (A). "Items that are confiscated
because they are contraband . . . and items that are stolen, but their
ownership cannot be determined, shall be turned into the Safety Office."
Id. The complaint alleges that the Safety Officers are peace officers
under New York Law and, therefore, this provision of the policy "permits
searches for law enforcement purposes." Compl. ¶ 98. However, there
is no allegation of any criminal prosecution arising from any search
conducted in accordance with this policy.
Finally, the search policy is made applicable to visitors to CDPC when
"the Program Director or designee has decided that it is appropriate to
search a visitor in order to maintain a safe and secure
environment. . . ." Id. p. 5.
A. Rule 12(b)(6) -Standard
On a Rule 12(b)(6) motion, a court must assume that the allegations in
the complaint are true and draw all reasonable inferences in the
plaintiffs' favor. Cooper v. Pate, 378 U.S. 546, 546 (1964); Kaluczky v.
City of White Plains, 57 F.3d 202, 206 (2d Cir. 1995). Dismissal is
"appropriate only if `it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to
relief.'" Harris v. City of New York, 186 F.3d 243, 250 (2d Cir. 1999)
(quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). A court's function
on a motion to dismiss is "not to weigh the evidence that might be
presented at trial but merely to determine whether the complaint itself is
legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.
1985). However, a plaintiff cannot oppose a motion to dismiss through
assertions of facts not reflected in the complaint, see Wright v. Ernst
& Young LLP, 152 F.3d 169, 178 (2d Cir. 1998) (citing IIT v.
Cornfeld, 619 F.2d 909, 914 n. 6 (2d Cir. 1980)), or defeat a motion to
dismiss with conclusory allegations, unwarranted speculation, unsupported
deductions, or legal arguments cast as factual pleadings. See Hirsch v.
Arthur Andersen & Co., 72 F.3d 1085, 1088 (2d Cir. 1995).
B. Standing to Raise Claims for Injunctive & Declaratory Relief
The Court will first address defendants' challenge to plaintiffs'
standing to raise the claims for injunctive and declaratory relief. "The
party invoking federal jurisdiction bears the burden of establishing the
elements of standing." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992). A plaintiff must separately demonstrate standing for each form of
relief sought including claims for injunctive relief and a declaratory
judgment. Friends of Earth v. Laidlaw, 528 U.S. 167, 185 (2000). Standing
for an equitable claim must appear on the face of the complaint in order
to survive a motion to dismiss. O'Shea v. Littleton, 414 U.S. 488
(1974); Clarry v. United States, 85 F.3d 1041 (2d Cir. 1996).
As an element of standing and a prerequisite for invoking federal
jurisdiction, plaintiffs must allege an actual case or controversy ripe
for review. Carpenter Technology v. Bridgeport, 180 F.3d 93 (2d Cir.
1999). In order to satisfy Article III of the United States Constitution
and demonstrate an "actual case or controversy" conferring standing for
injunctive or declaratory relief, a plaintiff must show:
(1) it has suffered an `injury in fact' that is (a)
concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2) the
injury is fairly traceable to the challenged action of
the defendant; and (3) it is likely, as opposed to
merely speculative, that the injury will be redressed
by a favorable decision.
Laidlaw, 528 U.S. at 185-86 (citing Lujan, 504 U.S. at 560-61 and
Hunt v. Washington State Apple Advertisers Comm'n, 432 U.S. 333, 343
Defendants assert that the plaintiffs lack standing to raise their
claims for injunctive and declaratory relief related to
the CDPC's search
policy because Aiken's injury occurred, according to his own allegations,
because the officials deviated from the policy when they searched Aiken
on January 19, 2000. See compl. ¶¶ 55-66,*fn4 71-75, 94-100.
Defendants further contend that the plaintiffs have failed to allege that
anyone has ever been unlawfully searched pursuant to the state policy
they now attempt to challenge. Thus, defendants assert that because the
violation to Aiken's rights, if any, was caused by the deviation from the
policy — not the policy itself, and because the deviation from the
policy is not likely to re-occur, plaintiffs lack standing to pursue the
claims. Thus, defendants argue that plaintiffs' claims cannot satisfy the
second and third elements of the Laidlaw test. See Rizzo v. Goode,
423 U.S. 362 (1976); Los Angeles v. Lyons, 461 U.S. 95 (1983).
The plaintiffs counter that the allegations in the complaint are made
in the alternative as allowed by Rule 8 of the Federal Rules of Civil
Procedure and, alternatively, that the allegations of the search being
pursuant to and in deviation from the official policy are not mutually
exclusive. Plaintiffs argue that, unlike in Lyons, the complaint asserts
that the CDPC policy authorizes unconstitutional searches, and that the
policy caused the search complained of and will therefore likely cause
unconstitutional searches in the future. See Compl. ¶¶ 88-105.
Plaintiffs further contend that, unlike the plaintiff in Lyons, Aiken
faces a real and immediate threat of repeated injury from the defendants'
policies (and therefore is entitled to injunctive and declaratory relief,
as well as damages) because Aiken's illness makes it very likely that he
will need emergency mental health care at any moment, and because seeking
such care necessitates his evaluation at CDPC. Comp. ¶¶ 6-8, 46,
Further, Rule 8(e) "authorizes alternative and hypothetical pleading,
and eliminates any requirement of consistency of statement, subject to
the good-faith obligation in Rule 11." 5 C. Wright & A. Miller,
FEDERAL PRACTICE AND PROCEDURE § 1215 (emphasis added); see also 5
C. Wright & A. Miller, FEDERAL PRACTICE AND PROCEDURE §
1282 (2002) (ALTERNATIVE AND HYPOTHETICAL PLEADING) ("Rule 8(e)(2) affords a
party considerable flexibility in framing his pleading by expressly
permitting him to set forth his claims or defenses in an alternative or
hypothetical manner."). Thus, alternative and even contradictory
allegations may be plead in a complaint.
Assuming the truth of the allegations in the complaint, a finder of
fact could conclude that the search occurred because of the existing
policy, see compl. ¶ 104, and, as plaintiffs seem to assert, that the
contravention of policy caused an even more egregious injury. Indeed, it
is possible that the "standing order" to search Aiken drew its authority
from the official search policy and therefore a finder of fact could
conclude that the policy itself put into motion the series of events
which culminated on January 19, 2000. Plaintiffs may be able to establish
that the official policy was the cause of the search even though the
defendants who actually conducted the search failed to comply with all of
the requirements of the policy. See Deshawn E. v. Safir, 156 F.3d 340,
344 (2d Cir. 1998).
Here, the allegation that Aiken was searched in violation of his
constitutional rights is sufficient to satisfy the injury-in-fact element
for standing. Lerman v. Board of Elections, 232 F.3d 135, 142 (2d Cir.
2000).*fn6 Further, the injury is fairly traceable to the challenged
policy. Thus, the connection to the official policy is, at this stage,
sufficient to establish the necessary causation linking the policy to the
Finally, the relief sought, if granted, would likely redress future
violations which are, in these circumstances, likely to reoccur. "It is
the reality of the threat of repeated injury that is relevant to the
standing inquiry, not the plaintiff's subjective apprehensions." Lyons,
461 U.S. at 98, 107 n. 8 (emphasis in original). Threat of a repeated
injury is, at least for Aiken, a reality. Unlike the plaintiff in Lyons,
based upon the allegations in the complaint Aiken faces a real and
immediate threat of repeated injury from the defendants' policy. Given
Aiken's allegations of his persistent mental health condition, the
contention that CDPC is the only crisis mental health unit in the locale
of plaintiff's residence, and the allegation that he was already singled
out to be searched in accordance with the policy, the Court cannot say as
a matter of law that it appears beyond doubt that he can prove no set of
facts in support of his claim which would entitle him to equitable
Therefore, the Court finds that Aiken has standing to assert the claim
for injunctive and declaratory relief. See Risinger v. Concannon,
117 F. Supp.2d 61, 70 (D. Maine 2000) (allegation that mental patient was
injured by the operation of an official policy was ...