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September 30, 2002


The opinion of the court was delivered by: Thomas J. McAVOY, United States District Judge.



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" and negligence.

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.

B. CDPC's Search Policy

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).

The policy is divided in to "emergency" and "non-emergency" situations and indicates that the "senior clinical staff member on duty" shall make the determination whether an emergency situation exists. Assuming one does, the senior clinical staff member on duty shall be responsible: "for taking appropriate action to insure the safety of other patients;" for making a decision regarding the ability of "program staff to handle the situation without assistance" from the Safety Office; and for making decisions "concerning the level and degree of search as well as the appropriate place to conduct the search." Search Policy, p. 3, ¶ 1. In conducting a search in an emergency situation, the staff is to inform the patient of the reason for conducting the search and seek the patient's permission if possible. Id., p. 3, ¶ 2. The staff must also insure that two staff members are present with at least one being of the same sex as the person being searched with the "staff member of the same sex . . . responsible for conducting the actual search." Id. 3, ¶ 2.

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 policy.

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 ¶ 4(b).

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 essential.

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.

C. Relief Sought

Plaintiffs Disability Advocates, Inc. and Aiken seek injunctive and declaratory relief against the defendants*fn3 under § 1983 to halt illegal searches of patients at CDPC which violate the Fourth and Fourteenth Amendments, and against CDPC to enjoin searches in violation of Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. In addition, Aiken seeks monetary damages pursuant to § 1983, the ADA, and Section 504 for damages arising from the January 19, 2000 search.


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 (1977)).

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, 114-15.*fn5

This particular dispute centers as much on the confluence of two important fundamentals of federal practice — namely, the right to plead a case in the alternative under FED. R. Civ. P. 8 and the obligation to plead with enough sufficiency to withstand a motion to dismiss under FED. R. Civ. P. 12(b)(6) — as it does on the prudential concerns of standing. Rule 8 of the Federal Rules of Civil Procedure requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. Civ. P. 8(a)(2). "Such a statement must simply `give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Swierkiewicz v. Srema, 534 U.S. 506, 122 S.Ct. 992, 998 (2002) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims." Id.; see 5 C. Wright & A. Miller, FEDERAL PRACTICE AND PROCEDURE § 1215 (1990 & 2002).

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 injury.

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 relief.

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 ...

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