United States District Court, S.D. New York
November 17, 2005.
SHIRLEY ANN FISK, Plaintiff,
DAVID LETTERMAN, WORLDWIDE PANTS, SUMNER M. REDSTONE, LESLIE MOONVES, MEL KARMAZIN, VIACOM INC., CBS INC., CITY OF NEW YORK, WILLIAM DELACE, MICHAEL Z. McINTEE, PROJECT HELP, DR. JOHN DOE, JOHN JOE, OFFICER J. SOE, DR. KOE, DR. RICARDO CASTANEDA, DR. STEVEN CIRIC, DR. WILLIAM ROMAN, SUSAN KOLCUN, DELSA BEST, GRACE MONES, STATE OF CONNECTICUT, DOES 1-30, Defendants.
The opinion of the court was delivered by: VICTOR MARRERO, District Judge
DECISION AND ORDER
Plaintiff Shirley Ann Fisk ("Fisk") brought this action under
42 U.S.C. § 1983 ("§ 1983") against various private individuals
and corporations, state officials and unidentified defendants
(collectively, "Defendants"). Fisk alleges that she was falsely
accused of stalking television show host David Letterman and
that, in connection with an involuntary psychiatric commitment of
her, Defendants conspired to deprive her of civil rights
guaranteed by the United States Constitution. She has also filed
pendent state law claims.
Pursuant to Rule 12(b) (6) of the Federal Rules of Civil
Procedure, defendants David Letterman, Leslie Moonves, Mel
Karmazin, William Delace, Michael McIntee, Sumner Redstone, Viacom Inc., CBS Broadcasting Inc. (named as "CBS Inc."), and
Worldwide Pants Inc. (collectively, the "CBS Defendants"), filed
a motion to dismiss the complaint for failure to state a claim
upon which relief can be granted. Defendant Susan Kolcun
("Kolcun") also moved for dismissal on the same ground.
Defendants Grace Mones ("Mones") and the State of Connecticut
(collectively, the "Connecticut Defendants") moved to dismiss the
complaint on the grounds of (1) sovereign immunity, (2) lack of
personal jurisdiction, (3) lack of service, (4) improper venue,
and (5) failure to state a claim.
By Order dated September 19, 2005, Magistrate Judge James C.
Francis IV, to whom this matter had been referred for pretrial
supervision, issued a Report and Recommendation (the "Report"), a
copy of which is attached and incorporated hereto, recommending
that the Court grant the various motions to dismiss the federal
claims Fisk's complaint asserts as to these defendants. The
Report further recommends that the Court not exercise pendent
jurisdiction to review Fisk's state law causes of action. Fisk,
whose time to submit objections to the Report was to expire on
October 3, 2005, requested a 10-day extension, which the Court
granted by memo-endorsed Order dated October 4, 2005, thus moving
the deadline to October 14, 2005. To date, Fisk has not filed any
response or requested any further extension. The CBS Defendants
filed a timely limited objection to the Report insofar as it recommends
dismissal of Fisk's federal claims against them without
prejudice. For the reasons stated below, the Court adopts the
Report, with the exception of the recommendation that the
dismissal as to the CBS Defendants be without prejudice.
II. STANDARD OF REVIEW
A district court evaluating a Magistrate Judge's report may
adopt those portions of the report to which no "specific, written
objection" is made, as long as the factual and legal bases
supporting the findings and conclusions set forth in those
sections are not clearly erroneous. See Fed.R.Civ.P. 72(b);
Thomas v. Arn, 474 U.S. 140, 149 (1985); Greene v. WCI Holding
Corp., 956 F. Supp. 509, 513 (S.D.N.Y. 1997). "Where a party
makes a `specific written objection' within `[ten] days after
being served with a copy of the [magistrate judge's] recommended
disposition,' however, the district court is required to make a
de novo determination regarding those parts of the report."
Cespedes v. Coughlin, 956 F. Supp. 454, 463 (S.D.N.Y. 1997)
(citation omitted) (citing United States v. Raddatz,
447 U.S. 667, 676 (1980)). A district judge may accept, reject, or modify,
in whole or in part, the findings and recommendations of the
Magistrate Judge. See Deluca v. Lord, 858 F. Supp. 1330, 1345
(S.D.N.Y. 1994); Walker v. Hood, 679 F. Supp. 372, 374 (S.D.N.Y. 1988).
The Court finds that the facts set forth in the Report are
supported by the record and are thus incorporated herein by
reference. Having conducted a review of the full record,
including, among other things, the parties' submissions on the
record, the Report and applicable legal authorities, the Court
concludes that the findings, reasoning and legal support for the
recommendations made in Report are not clearly erroneous. Insofar
as the CBS Defendants object to the recommendation that the
dismissal of the claims against them be without prejudice, upon
de novo review of the relevant documents of record and related
circumstances the Court finds the Magistrate Judge's
determination unwarranted because any further amendment of the
complaint encompassing Fisk's claims implicating the CBS
Defendants would be futile. See Ruffolo v. Oppenheimer & Co.,
987 F.2d 129, 131 (2d Cir. 1993).
The Report properly recognizes governing doctrine that a claim
under § 1983 must be predicated on state action and state actors.
See Report at 16-17 (citing cases). Moreover, a private party
who calls police officers for assistance or provides them with
information that may lead to an arrest of an individual does not
become a state actor rendering that party liable under § 1983 to
the person detained, unless the police officers were improperly influenced or controlled by the
private party. See id. at 19-20 (citing cases). The Report
further finds that, by Fisk's own account, Fisk's involuntary
commitment to the hospital was carried out by the doctors
involved and that she alleged no facts from which it could be
reasonably inferred that the process was in any way subverted as
a consequence of any actions taken by the CBS Defendants. See
id. at 20. Upon a review of Fisk's amended complaint and the
documentation attached to it, the Court is persuaded that the
record indicates that Fisk's commitment was conducted pursuant to
legal process carried out over an extended period of time, and
that the police officers, doctors and other state officials
involved acted independently of any of the CBS Defendants. Thus,
the evidence Fisk has entered into the record as part of her
pleadings refutes any theory that the CBS Defendants improperly
influenced or controlled the exercise of judgment by the police
and medical officials, and thus these defendants cannot properly
be found to have become state actors for the purpose of stating a
cause of action under § 1983.
The Court is mindful that in considering a motion to dismiss it
must view the pleadings in the light most favorable to the
plaintiff, and read the allegations of a pro se litigant to
state the strongest claim they could support. The Court, however, is not obliged to reconcile plaintiff's own
pleadings that are contradicted by other matters asserted or
relied upon or incorporated by reference by a plaintiff in
drafting the complaint. See See Colodney v. Continuum Health
Partners, Inc., No. 03 Civ. 7276, 2004 WL 829158, at *7
(S.D.N.Y. Apr. 15, 2004) ("Colodney fails to state a cause of
action for slander because the facts contained in his own
pleading contradict any naked assertion that Donovan's statements
about him were false. . . . Leave to amend is properly denied
since any amendment would be futile. Colodney having himself
undermined any allegation that Donovan's alleged libelous
statements were false, further litigation regarding Donovan's
statements is not warranted."); Matusovsky v. Merrill Lynch,
186 F. Supp. 2d 397, 399-400 (S.D.N.Y. 2002) (noting that in
evaluating a motion to dismiss pursuant to Fed.R.Civ.P. 12 (b)
(6) a court may consider "documents attached to the complaint as
exhibits, or incorporated by reference, as well as any documents
that are integral to, or explicitly referenced in, the
pleading. . . . If a plaintiff's allegations are contradicted by
such a document, those allegations are insufficient to defeat a
motion to dismiss."). Accordingly, the Court dismisses Fisk's
federal law claims against the CBS Defendants with prejudice and
declines to exercise supplemental jurisdiction over any of the
state law claims asserted.
Based on its review of the Report as it pertains to Kolcun,
Mones and the State of Connecticut the Court is persuaded that
the factual and legal findings described therein are similarly
not clearly erroneous. Thus, the Court adopts the Report's
recommendation that the federal claims against those defendants
also be dismissed with prejudice and that the Court decline to
exercise supplemental jurisdiction with regard to Fisk's state
law claims against them.
For the reasons stated above, it is hereby
ORDERED that the Court adopts the Report and Recommendation
of Magistrate Judge James F. Francis IV dated September 19, 2005,
with the exception of the recommendation that the granting of
certain motions to dismiss the complaint be granted without
prejudice; and it is further
ORDERED that the motions of defendants David Letterman,
Leslie Moonves, Mel Karmazin, William Delace, Michael McIntee,
Sumner Redstone, Viacom Inc., CBS Broadcasting Inc. (named as
"CBS Inc."), and Worldwide Pants Inc. (collectively, the "CBS
Defendants") (Docket No. 12); Susan Kolcun (Docket No. 53); and
Grace Mones and the State of Connecticut (Docket No. 23) to
dismiss the complaint be GRANTED. SO ORDERED. REPORT AND RECOMMENDATION
The plaintiff, Shirley Ann Fisk, has brought this case under
42 U.S.C. § 1983 against private individuals and corporations, state
officials and various unidentified defendants. This action arises
out of the involuntary psychiatric commitment of the plaintiff.
Ms. Fisk alleges that she was falsely accused of stalking
late-night talk show host David Letterman and that the defendants
conspired to deprive her of civil rights guaranteed by the
Constitution. She has also filed pendent state law claims.
Pursuant to Rule 12(b) (6) of the Federal Rules of Civil
Procedure, David Letterman, Leslie Moonves, Mel Karmazin, William
Delace, Michael McIntee, Sumner Redstone, Viacom Inc., CBS
Broadcasting Inc. (named as "CBS Inc."), and Worldwide Pants Inc.
(collectively the "CBS defendants") have moved to dismiss the
complaint for failure to state a claim upon which relief can be granted. Susan Kolcun has moved for dismissal on the same ground.
Grace Mones and the State of Connecticut (collectively the
"Connecticut defendants") have moved to dismiss the complaint on
the grounds of (1) sovereign immunity, (2) lack of personal
jurisdiction, (3) lack of service, (4) improper venue, and (5)
failure to state a claim.
For the reasons stated below, I recommend that the defendants'
motions each be granted.
The facts, as alleged in the Amended Complaint ("Am. Compl."),
are as follows. On the morning of July 9, 2002, two social
workers employed by the City of New York (the "City") led Ms.
Fisk, a resident of the City's Lenox Hill Women's Shelter (the
"Lenox Hill Shelter"), into the shelter's medical clinic. (Am.
Compl., ¶ 29). Inside the clinic, Ms. Fisk was introduced to a
psychiatrist, Dr. John Doe, and a psychiatric technician, John
Joe,*fn1 both of whom identified themselves as employees of
H.E.L.P.*fn2 (Am. Compl., ¶¶ 29-30). Dr. Doe informed Ms.
Fisk that representatives of CBS had contacted the New York City
Department of Homeless Services ("DHS") to complain that Ms. Fisk
was stalking David Letterman. (Am. Compl., ¶ 30). DHS had then
contacted H.E.L.P. (Am. Compl., ¶ 30). Dr. Doe told Ms. Fisk that CBS had accused her of bizarre
behavior near the Ed Sullivan Theater, where The Late Show with
David Letterman ("The Late Show") takes place, of disguising
herself in an attempt to enter Mr. Letterman's office, and of
sending several 95-page e-mails to Mr. Letterman. (Am. Compl., ¶
Dr. Doe informed Ms. Fisk that she would be arrested if she did
not voluntarily enter Bellevue Hospital ("Bellevue") for
psychiatric treatment. (Am. Compl., ¶ 30). Ms. Fisk replied that
she was not stalking David Letterman, and, as she was neither
mentally ill nor a user of drugs or alcohol, she would not enter
Bellevue. (Am. Compl., ¶ 30). Ms. Fisk told Dr. Doe that she was
the victim of identity theft because her wallet had been stolen,
and she suggested that the individual in possession of her
driving license and other forms of identification might be the
person exhibiting bizarre behavior near the Ed Sullivan Theater.
(Am. Compl., ¶ 34). After further conversation, during which Ms.
Fisk felt threatened and harassed, she exited the clinic and
returned to her bedroom. (Am. Compl., ¶ 35).
On July 11, 2002, at approximately 8:30 in the evening, Mr. Joe
approached Ms. Fisk who was sitting on a park bench outside the
shelter. (Am. Compl., ¶ 38). He told her that she was required to
enter a van and be transported to Bellevue or Police Officer
Soe,*fn3 who was accompanying Mr. Joe, would force her into
the vehicle. (Am. Compl., ¶ 39). Officer Soe informed the plaintiff that she
was not under arrest but was required to accept transportation to
the hospital. (Am. Compl., ¶ 39). Officer Soe then introduced Ms.
Fisk to Dr. Koe.*fn4 (Am. Compl., ¶ 39). When Dr. Koe began
to question her, Ms. Fisk asked to speak to an attorney. (Am.
Compl., ¶¶ 40-41). She was told that she was "uncooperative" for
refusing to answer questions. (Am. Compl., ¶ 41). She was also
reminded that restraints would be used if she did not enter the
van voluntarily. (Am. Compl., ¶ 41). Because Ms. Fisk assumed
that "restraints" referred to handcuffs or a straightjacket, she
entered the van. (Am. Compl., ¶ 41).
When Ms. Fisk arrived at Bellevue, her belongings were
searched, and some of her items were confiscated. (Am. Compl., ¶
42). On July 12, 2002, she spoke with several doctors, including
one who had evaluated her approximately five months earlier in
connection with certain child custody issues. (Am. Compl., ¶ 43).
Although Ms. Fish behaved cooperatively, Bellevue staff members,
with no explanation, placed her in a locked ward. (Am. Compl., ¶
An attending psychiatrist assigned to Bellevue, Dr. William
Roman, examined Ms. Fisk and asked her about her "bizarre"
behavior towards Mr. Letterman. (Am. Compl., ¶ 46). Ms. Fisk
denied any such behavior, except that she admitted having sent
e-mails for Mr. Letterman to the "Wahoo Gazette," an on-line
newsletter about The Late Show. (Am. Compl., ¶¶ 46-47, 50). Ms. Fisk asked Dr. Roman
for the dates and times of her alleged bizarre behavior, but the
doctor never provided this information. (Am. Compl., ¶ 49). Dr.
Roman informed the plaintiff that she could leave Bellevue if she
could live with a relative. Ms. Fisk explained she was not in
contact with her family. (Am. Compl., ¶ 51). She requested to
return to the Lenox Hill Shelter, but Dr. Roman told her this was
impossible due to "red tape." (Am. Compl., ¶ 51).
Dr. Roman told Ms. Fisk that William Delace, a CBS Broadcasting
Inc. ("CBS") employee and Chief of Security at the Ed Sullivan
Theater, was the source of the accusations against her. (Am.
Compl., ¶ 52). Ms. Fisk responded that Mr. Delace was not
trustworthy. (Am. Compl., ¶ 52). Ms. Fisk believed that because
she had filed a police report against Mr. Delace and had
threatened to sue both him and CBS, he was now trying to dissuade
her by accusing her of stalking Mr. Letterman. (Am. Compl., ¶
54). Ms. Fisk reported to Mr. Roman that Mr. Delace had
previously yelled at her for no apparent reason when she passed
the Ed Sullivan Theater, complained to her about a car that was
not hers, and humiliated her when he announced in public that she
was not allowed in the theater. (Am. Compl., ¶ 55). The day after
the public humiliation, she filed a police report and
subsequently experienced an anxiety attack. (Am. Compl., ¶ 55).
In April 2002, Ms. Fisk was in a delicatessen near the Sullivan
Theater when Mr. Delace entered the store, shouted at her, shook
his finger in her face, and threatened her with an arrest or a
restraining order. (Am. Compl., ¶ 55). Ms. Fisk warned Mr. Delace not to touch her and informed him that
she had already filed a police report regarding the earlier
harassment. (Am. Compl., ¶ 55). Mr. Delace then left the store
without further incident. (Am. Compl., ¶ 55).
Sometime after Ms. Fisk's arrival at Bellevue, a hearing was
conducted at the hospital to determine whether the plaintiff
should remain committed. (Am. Compl., ¶ 56). The court appointed
Susan Kolcun*fn5 to represent the plaintiff. (Am. Compl., ¶
56). Ms. Fisk alleges that Ms. Kolcun neither investigated Mr.
Delace's harassment nor attempted to obtain evidence to
contradict his allegations. (Am. Compl., ¶ 56). The plaintiff
protested to Ms. Kolcun that she could not defend herself against
the accusations against her without knowing the exact details.
(Am. Compl., ¶ 56). Ms. Kolcun urged the plaintiff to find a
relative with whom she could reside, but Ms. Fisk was unable to
do so and she instead requested to return to the Lenox Hill
Shelter. (Am. Compl., ¶ 57). Ms. Kolcun and Dr. Roman again
informed Ms. Fisk that she could not return to the shelter
because of "red tape." (Am. Compl., ¶ 57).
Dr. Roman prescribed anti-psychotic medication for Ms. Fisk,
but for approximately two weeks she refused to take it. (Am.
Compl., ¶ 58). Dr. Roman warned the plaintiff that he would
obtain a court order to force her to take the drug, and on July
19, 2003, Dr. Ricardo Castaneda, the Director of Inpatient
Psychiatric Services at the Bellevue Department of Psychiatry,
petitioned the court for an order authorizing involuntary medication of the
plaintiff. (Am. Compl., ¶ 59). Dr. Castaneda's petition was based
on the recommendations of Dr. Roman and Dr. Steven Ciric, another
attending psychiatrist, who had examined the plaintiff on July
17, 2005. (Am. Compl., ¶¶ 59-60). In support of Dr. Castaneda's
petition, Dr. Ciric mentioned the plaintiff's "increasingly
bizarre and erratic behavior in connection with the CBS studio,"
and Mr. Roman cited plaintiff's "disguising herself to gain
admission to the Letterman studio" as an example of her
delusional thinking and a reason for medicating her. (Am. Compl.,
¶¶ 60-61). Dr. Roman also reported that the plaintiff had
"recently become increasingly belligerent and aggressive with the
[s]tudio [s]ecurity, causing them to wish to have her arrested."
(Am. Compl., ¶ 61).
On July 24, 2002, Dr. Roman represented to the court that
although the plaintiff's behavior at Bellevue had been innocent,
Ms. Fisk "could become dangerous." (Am. Compl., ¶ 62). On or
about the same day, the court ordered Ms. Fisk to begin taking
Risperdal, an anti-psychotic drug. (Am. Compl., ¶ 64). Because
Ms. Fisk was informed that she would be physically restrained and
injected with the medication if she did not cooperate, she
accepted it. (Am. Compl., ¶ 64). Within hours of ingesting the
Risperdal, the plaintiff felt dizzy and her nose began bleeding.
(Am. Compl., ¶ 65).
Ms. Fisk remained at Bellevue from July 11 to August 23, 2002.
(Am. Compl., ¶ 66). Dr. Roman and Ms. Kolcun told her that she
could leave the hospital only if she could locate a residence
other than the Lenox Hill Shelter. (Am. Compl., ¶ 67). Ms. Fisk
obtained permission to enter another women's shelter, the Queen
of Peace. (Am. Compl., ¶¶ 67-68).
On August 23, 2002, shortly before the plaintiff was permitted
to exit the hospital and move to the Queen of Peace, she met with
Dr. Roman, who advised her to stay away from the Ed Sullivan
Theater. (Am. Compl., ¶¶ 67-68, 70). He informed her that CBS
officials were still threatening to have her arrested and warned
her that she would probably be brought back to Bellevue if CBS
complained about her again. (Am. Compl., ¶ 70). During the
conversation, Ms. Fisk understood Dr. Roman to refer to Grace
Mones, an employee of the Connecticut Department of Children &
Families ("DCF") who was the social worker assigned to a custody
case concerning the plaintiff's children. (Am. Compl., ¶ 70).
On August 29, 2002, Ms. Fisk filed a police report complaining
that Mr. Delace had made false accusations that resulted in her
commitment at Bellevue. (Am. Compl., ¶ 72). Later that same day,
she returned to the Lenox Hill Shelter. (Am. Compl., ¶ 73). A
social worker employed by the City, Delsa Best, informed Ms. Fisk
that she would now be permitted to live in the shelter again and
that it had not been possible earlier because of "red tape." (Am.
Compl., ¶ 73).
The plaintiff attempted in vain to contact CBS officials to
discuss Mr. Delace's harassment and her intention to sue him and
CBS. (Am. Compl., ¶¶ 75-76). She also wanted to address CBS's
threats of arrest and possible involuntary commitment, which had been communicated to her by Dr. Roman. (Am. Compl., ¶¶ 75-76). On
September 1, 2002, because of her anxiety about CBS's threats,
Ms. Fisk left New York City. (Am. Compl., ¶ 77).
B. Procedural History
Ms. Fisk filed the Amended Complaint on September 20, 2004. She
alleged that the defendants conspired to violate her civil rights
as guaranteed by the United States Constitution, including (1)
the right to be free from unreasonable search and seizure; (2)
the right not to be deprived of life, liberty, and property
without due process of law; (3) the right to equal protection of
the law as guaranteed by the Fourteenth Amendment; and (4) the
right to be free from forced medication. She has also filed
pendent state law claims against the defendants, including claims
of intentional and negligent infliction of emotional distress,
false imprisonment, libel, and negligent investigation.
A motion to dismiss was filed by the CBS defendants on December
16, 2004, and by the Connecticut defendants on February 8, 2005.
Ms. Kolcun moved to dismiss on July 18, 2005.
In considering a motion to dismiss, the court must accept as
true all factual allegations in the complaint and must draw all
inferences in favor of the plaintiff. Leatherman v. Tarrant
County Narcotics Intelligence and Coordination Unit,
507 U.S. 163, 164 (1993); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974);
Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999);
Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994).
Accordingly, the complaint may not be dismissed "unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of [her]
claim which would entitle [her] to relief." Conley v. Gibson,
355 U.S. 41, 45-46 (1957). These principles are applied even more
strictly where the plaintiff alleges civil rights violations,
Hernandez, 18 F.3d at 136; Branum v. Clark, 927 F.2d 698, 705
(2d Cir. 1991), particularly where she is proceeding pro se.
Haines v. Kerner, 404 U.S. 519, 520 (1972); McPherson v.
Coombe, 174 F.3d 276, 280 (2d Cir. 1999).
A. The Connecticut Defendants
1. The State of Connecticut and Ms. Mones in her Official
Ms. Fisk is suing the State of Connecticut and Grace Mones, in
her official capacity, for money damages. The Eleventh Amendment
bars suits against a state for money damages unless the State has
waived its immunity or Congress has exercised its power under
Section 5 of the Fourteenth Amendment to override that immunity.
Congress, in passing Section 1983, did not disturb the states'
Eleventh Amendment immunity. Welch v. Texas Deptartment of
Highways and Public Transportation, 483 U.S. 468, 472-474 (1987)
(plurality opinion); Will v. Michigan Department of State
Police, 491 U.S. 58, 64 (1989). Therefore, the State of
Connecticut cannot be sued under Section 1983 for money damages
and the complaint against it should thus be dismissed on the
ground of sovereign immunity.*fn6 Insofar as the plaintiff alleges a civil rights claim against
defendant Grace Mones for actions taken in her official capacity
as an employee of the State of Connecticut Department of Children
and Families ("DCF"), this claim likewise is barred by the
Eleventh Amendment. A suit against a state official for damages
is deemed to be a suit against the state, and the official is
entitled to invoke the Eleventh Amendment immunity belonging to
the state. See Kentucky v. Graham, 473 U.S. 159, 166, 169
(1985). Therefore, the complaint must be dismissed against Ms.
Mones in her official capacity.
2. Ms. Mones in her Individual Capacity
a. Sufficiency of the Allegations
The Connecticut defendants claim that dismissal is appropriate
on the ground that the plaintiff has failed to state a cognizable
cause of action against Ms. Mones. (Memorandum of Law in Support
of Motion to Dismiss Action Again the State of Connecticut and
Grace Mones ("Conn. Mem.") at 8-9). Rule 8 (a) (2) of the Federal
Rules of Civil Procedure requires that a complaint include only
"a short and plain statement of the claim showing that the
pleader is entitled to relief" and that "will give the defendant
fair notice of what the plaintiff's claim is and the grounds upon
which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957). To
prevail in a Section 1983 action, Ms. Fisk must show (1) that the defendants
deprived her of a right secured by the Constitution or laws of
the United States and (2) that, in doing so, the defendants acted
under color of state law. See Flagg Bros., Inc. v. Brooks,
436 U.S. 149, 156 (1978). Involuntary confinement, including
civil commitment, constitutes a significant deprivation of
liberty requiring due process protection. See, e.g., Addington
v. Texas, 441 U.S. 418, 425 (1979).
However, Ms. Fisk has not alleged any facts suggesting that Ms.
Mones "deprived her" of her constitutional rights pursuant to
42 U.S.C. § 1983. Although the plaintiff contends that Ms. Mones
played a role in her commitment by "provid[ing] false information
to plaintiff's doctor at Bellevue" (Am. Compl., ¶ 71), she has
not alleged any facts supporting her speculation that Ms. Mones
was involved in the deprivation of her rights. The plaintiff
claims that Ms. Mones (1) was instrumental in the involuntary
commitment of her son, Omar Fisk N'Gadi, in October 1999; (2)
lied under oath at a custody hearing regarding Omar; and (3)
threatened to call the police when the plaintiff planned to
attend Omar's elementary school graduation in June 2002. (Am.
Compl., ¶ 71).
Although the court should "read the pleadings of a pro se
plaintiff liberally and interpret them to `raise the strongest
arguments that they suggest,'" McPherson v. Coombe,
174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Tompkins,
14 F.3d 787, 790 (2d Cir. 1994)), none of the facts in the amended
complaint tend to show that Ms. Mones was connected in any way to
the commitment of the plaintiff. Ms. Mones' alleged involvement in the commitment
of the plaintiff's son and in the custody case of plaintiff's
children are clearly unrelated to the plaintiff's commitment to
Bellevue. Ms. Fisk also attempts to attribute responsibility for
her involuntary commitment to Ms. Mones on the basis that Dr.
Roman mentioned her, thus creating an inference that Ms. Mones
communicated supposedly derogatory information about the
plaintiff to him. But Ms. Fisk draws her conclusion on the basis
of an obvious misunderstanding of what Dr. Roman said. According
to the plaintiff, he told her that she "had handled her
experience `with grace.'" (Am. Compl., ¶ 70). This plainly meant
that the plaintiff had acted "gracefully," and was not an
allusion to any person named "Grace." Therefore, there is no
factual basis for Ms. Fisk's belief that Ms. Mones was involved
in the deprivation of her rights, and Ms. Fisk has thus failed to
state a Section 1983 claim.*fn7 Accordingly, the plaintiff's
federal claims against Ms. Mones must be dismissed.*fn8 3. State Claims
The plaintiff has also raised state claims against the
Connecticut defendants. However, if the federal claims against
the Connecticut defendants are dismissed, supplemental
jurisdiction pursuant to 28 U.S.C. § 1367 should not be exercised
over the remaining state law claims. See Pollack v. Nash,
58 F. Supp. 2d 294, 305 (S.D.N.Y. 1999) ("if the federal claims are
dismissed before trial, even though not insubstantial in a
jurisdictional sense, the state claims should be dismissed as
well"). Therefore, the plaintiff's state claims against the
Connecticut defendants should dismissed as well.
B. CBS Defendants
1. Personal Involvement of Individual Defendants
First, the CBS defendants contend that Mr. Delace is the "only
person against whom the plaintiff makes any individual
allegations" and that, therefore, the complaint should be
dismissed against the other defendants. (CBS Memo. at 1 n. 1).
The defendants' contention is indeed correct. Most of the
plaintiff's allegations are against the "CBS defendants"
generally,*fn9 while no individual except Mr. Delace is
alleged to have violated the plaintiff's rights. Because personal
involvement by the defendants in any alleged constitutional
violation is a prerequisite to an award of damages under § 1983, Hernandez v.
Keane, 341 F.3d 137, 144-45 (2d Cir. 2003); Wright v. Smith,
21 F.3d 496, 501 (2d Cir. 1994); Williams v. Smith,
781 F.2d 319, 323 (2d Cir. 1986), the complaint should be dismissed
against David Letterman, Sumner Redstone, Leslie Moonves, Mel
Karmazin and Michael McIntee.*fn10
2. Corporate Policy
The plaintiff further seeks to impose liability upon CBS,
Viacom, and World Pants. Private employers are not vicariously
liable under § 1983 upon a theory of respondeat superior for the
constitutional torts of their employees. See Dubbs v. Head
Start, Inc., 336 F.3d 1194, 1215-16 (10th Cir. 2003); Street v.
Corrections Corp. of America, 102 F.3d 810, 181 (6th Cir. 1996);
Rojas v. Alexander's Deptartment Store, Inc., 924 F.2d 406, 408
(2d Cir. 1990). However, a private corporation could be held
liable under Section 1983 for its own unconstitutional policies.
Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 975-76 (8th Cir.
1993); Rojas, 924 F.2d at 408. Therefore, a plaintiff must
prove that "action pursuant to official . . . policy of some nature caused a
constitutional tort." Id. (citing Monell, 436 U.S. at 691).
Here, the plaintiff has not alleged that CBS, Viacom, or World
Pants has a policy of violating individuals' civil rights.
Therefore, no viable claim has been asserted against these
defendants on the basis of either vicarious liability or their
own corporate policies.
3. Conspiracy or Joint Collaboration
The CBS defendants have also moved to dismiss the plaintiff's
claims on the ground that the "plaintiff failed to allege any
facts that, if proven, could demonstrate the level of `joint
participation' with state authorities" required to render a
private individual a state actor under 42 U.S.C. § 1983.
(Memorandum of Law in Support of Motion of Defendant's Viacom
Inc., CBS Broadcasting Inc., Worldwide Pants Inc., David
Letterman, William Delace, Sumner Redstone, Mel Karmazin, Leslie
Moonves, and Michael McIntee to Dismiss Plaintiff's Amended
Complaint ("CBS Memo.") at 4).
Although "[a] claim under § 1983 is aimed at state action and
state actors," Liwer v. Hair Anew, No. 99 Civ. 11117, 2000 WL
223828, at *2 (S.D.N.Y. Feb. 25, 2000) (quoting Heaning v. NYNEX
New York, 945 F. Supp. 640, 650 (S.D.N.Y. 1996)), "[a] private
individual may be subject to § 1983 liability if that individual
willfully collaborated with an official state actor in the
deprivation of a federal right." Bacquie, 2000 WL 1051904, at
*1 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 152
(1970)); see Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1992). Private parties act
under the color of state law if they jointly participate or
conspire with a state actor to violate an individual's federal
rights. See Adickes, 398 U.S. at 151 (involvement of state
official in conspiracy with private party to violate plaintiff's
federal rights renders private party a state actor); United
States v. Price, 383 U.S. 787, 794 (1966) ("Private persons,
jointly engaged with state officials in the prohibited action,
are acting `under color' of law for purposes [of Section
1983]."). A private actor will be found to have acted jointly
with a state actor if he and the state actor "somehow reached an
understanding" to violate the plaintiff's civil rights. Vickery
v. Jones, 100 F.3d 1334, 1344 (7th Cir. 1996) (quoting
Adickes, 398 U.S. at 152).
To state a Section 1983 conspiracy claim, a complaint "must
allege (1) an agreement between a state actor and a private
party; (2) to act in concert to inflict an unconstitutional
injury; and (3) an overt act done in furtherance of that goal
causing damages." Ciambriello v. County of Nassau,
292 F.3d 307, 324-25 (2d Cir. 2002) (citing Pangburn v. Culbertson,
200 F.3d 65, 72 (2d Cir. 1999)). A plaintiff "is not required to list
the place and date of defendants meetings and the summary of
their conversations when he pleads conspiracy,'" Hoffman v.
Halden, 268 F.2d 280, 294-95 (9th Cir. 1959), but the pleadings
must "present facts tending to show agreement and concerted
action." Bacquie, 2000 WL 1051904, at *1-2. Without "a meeting
of the minds, the independent acts of two or more wrongdoers do
not amount to a conspiracy." Sales v. Murray, 862 F. Supp. 1511, 1516-17 (W.D. Va. 1994) (citing Murdaugh
Volkswagon, Inc. v. First National Bank of South Carolina,
639 F.2d 1073, 1076 (4th Cir. 1981)).
Here, the plaintiff has not set forth any allegations of
agreement or "meeting of the minds" between CBS and the state
actors. Ms. Fisk alleges that she was involuntarily committed and
medicated against her will based on false accusations by CBS,
Worldwide Pants, and Viacom that she behaved aggressively and
erratically. (Am. Compl., ¶¶ 45, 61). More particularly, she
alleges that representatives of CBS contacted DHS to complain
that she was stalking David Letterman (Am. Compl., ¶ 30) and that
Dr. Doe's visit to the shelter "was prompted by a telephone call
from unnamed CBS representatives to [DHS]." (Am. Compl., ¶ 35).
Ms. Fisk claims that William Delace made the allegations
against her (Am. Compl., ¶ 52) and that he did so because he
wanted to prevent her from suing him for harassment. (Am. Compl.,
¶¶ 52-54). The plaintiff also contends that CBS, in addition to
H.E.L.P. and DHS, "interacted" with the New York City police to
have her committed. (Memorandum of Law in Opposition to Motion of
Defendants David Letterman, Worldwide Pants, Sumner M. Redstone,
Leslie Moonves, Mel Karmazin, Viacom Inc., CBS Broadcasting,
Inc., William Delace and Michael McIntee to Dismiss Plaintiff's
Amended Complaint ("Pl. CBS Mem.") at 7). Finally, she contends
that "CBS Defendants continued a dialogue with Dr. Roman during
plaintiff's imprisonment at Bellevue" (Pl. CBS Memo. at 6) and
that the "communications between CBS Defendants and plaintiff's
doctors at Bellevue alone constituted . . . `joint participation.'" (Pl. CBS
Memo. at 7).
Taking the plaintiff's allegations as true, the alleged
interaction between CBS and the state actors does not rise to the
level of "joint participation" or conspiracy. All the plaintiff
has alleged is that there were "dialogues," "communications," or
"interactions" between CBS and the state actors. (Pl. CBS Memo.
at 6-7). Communications between a private and a state actor,
without facts supporting a concerted effort or plan between the
parties, are insufficient to make the private party a state
actor. See Moore v. Marketplace Restaurant, Inc.,
754 F.2d 1336, 1353 (7th Cir. 1985) (where no evidence of "concerted
effort or plan" between restaurant owner and police officer,
owner not state actor simply because owner reported customers to
officer and told officer where to find them and customers were
later arrested by officer). Alleging merely that a private party
regularly interacts with a state actor does not create an
inference of agreement to violate a plaintiff's rights. See
Kramer v. City of New York, No. 04 Civ. 106, 2004 WL 2429811,
at *7 (S.D.N.Y. Nov. 1, 2004). Accordingly, a private party who
calls the police for assistance does not become a state actor
unless the police were influenced in their choice of procedure or
were under the control of the private party. Newman v.
Bloomingdale's, 543 F. Supp. 1029, 1029 (S.D.N.Y. 1982); see
also Alexis v. McDonald's Restaurant of Massachusetts, Inc.,
67 F.3d 341, 345, 352 (1st Cir. 1995) (restaurant manager not a
state actor, although manager told police officer she "would like
[an unruly customer] to leave" and officer thereafter forcibly
removed customer from restaurant, because there was no evidence
that officer substituted manager's judgment for his own);
Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir. 1983) ("mere
furnishing of information to police officers does not constitute
joint action under color of state law which renders a private
citizen liable under § 1983"); Johns v. Home Depot U.S.A., Inc.
221 F.R.D. 400, 404 (S.D.N.Y. 2004) (private party who calls for
police assistance is not rendered a state actor under Section
1983, even if the call caused plaintiff's detainment).
At most, the plaintiff's allegations in this case could be
construed as supporting an inference that CBS attempted to
influence the state actors' decision to commit her, but this is
not sufficient to state a conspiracy claim under Section 1983.
See Scott v. Greenville County, 716 F.2d 1409, 1424 (4th Cir.
1983) (conspiracy claim not shown by private defendants' attempts
to influence action of county council). To find a conspiracy,
there would need to be facts from which it could be inferred that
the state actors substituted CBS' judgment for their own. See
Alexis, 67 F.3d at 352. Here, according to the complaint, the
doctors from H.E.L.P. and Bellevue determined that the plaintiff
should be committed to the hospital and later petitioned the
court for the plaintiff to be medicated involuntarily. (Am.
Compl., ¶¶ 30-31, 38-41, 58-64). The plaintiff has alleged no
facts from which it could be inferred that this process was
subverted. In addition, the mere institution of commitment
proceedings by private citizens, without more, is not the proximate cause of a violation of due
process during commitment proceedings. See Whittington v.
Johnson, 201 F.2d 810, 811-12 (5th Cir. 1953). Therefore,
without allegations supporting an inference of an agreement or
conspiracy between CBS or Mr. Delace and the state actors, no
claim has been stated against these defendants under Section
Accordingly, the complaint against all the CBS defendants,
including Mr. Delace, must be dismissed. Furthermore, the state
law claims should be dismissed as well. See Pollack,
58 F. Supp. 2d at 305.
C. Susan Kolcun
The plaintiff contends that Ms. Kolcun "failed to adequately
represent plaintiff, to investigate the facts of the case, or to
advocate for plaintiff's immediate and unconditional release from
Bellevue." (Reply Memorandum in Opposition to Motion of Defendant
Susan Kolcun to Dismiss Plaintiff's Amended Complaint ("Pl.
Kolcun" Reply at 2). She further alleges that Ms. Kolcun made a
conscious decision to cooperate and conspire with Dr. Roman and
the CBS defendants by not investigating the facts of the case or
advocating for her release. (Pl. Kolcun Reply at 3). She claims
that "Ms. Kolcun's consultations with Dr. Roman . . . constituted
"joint participation" with New York officials (Pl. Kolcun Reply
at 3), and that Ms. Kolcun's cooperation "brought [her] into the
conspiracy [between Dr. Roman and other state actors]." (Pl.
Kolcun Reply at 3). Courts have clearly and consistently held that court-appointed
attorneys do not act under color of state law by virtue of their
appointment. See Polk County v. Dodson, 454 U.S. 312, 325
(1981) (county public defender does not act under color of state
law when performing traditional advocacy functions); Housand v.
Heiman, 594 F.2d 923, 924-25 (2d Cir. 1979) ("public defenders
or court-appointed defense attorneys do not `act under color of
law'"); Neustein v. Orbach, 732 F. Supp. 333, 345 (E.D.N.Y.
1990) (Legal Aid Society attorneys do not represent their clients
under color of state law). This is true even if the attorney is
employed by the Mental Hygiene Legal Services ("MHLS"), a
state-funded legal services agency under the direction of the New
York State Office of Court administration. See Nesfeder v.
City of New Utica Police Department, No. 92 Civ. 442, 1994 WL
505622, at *4 (N.D.N.Y. Sept. 15, 1994). Thus, unless a
court-appointed attorney conspires with a state official to
violate the plaintiff's constitutional rights, that attorney
cannot be liable under Section 1983. Id., at *4
(court-appointed attorney employed by MHLS and representing
plaintiff in hearing for confinement found not to have acted
under color of state law where no alleged specific acts of
conspiracy with state actors); Respass v. New York City Police
Dept., 852 F. Supp. 173, 178-79 (E.D.N.Y. 1994) (Legal Aid
lawyer does not act under color of state law unless he conspires
with state actors to deprive plaintiff of federally protected
right). Here, the plaintiff has alleged no facts from which a
conspiracy between Ms. Kolcun and state actors could be inferred.
Therefore, the constitutional claims against Ms. Kolcun must be dismissed and
the pendent state law claims should be dismissed as well. See
Pollack, 58 F. Supp. 2d at 305.
For the reasons set forth above, I recommend that the motions
of the CBS defendants, the Connecticut defendants, and Susan
Kolcun be granted and the complaint be dismissed in its entirety
as to each of these parties.*fn11 Pursuant to
28 U.S.C. § 636(b) (1) and Rules 72, 6(a), and 6(e) of the Federal Rules of
Civil Procedure, the parties shall have ten (10) days from this
date to file written objections to this Report and
Recommendation. Such objections shall be filed with the Clerk of
the Court, with extra copies delivered to the chambers of the
Honorable Victor Marrero, Room 414, 40 Foley Square, New York,
New York 10007, and to the chambers of the undersigned, Room
1960, 500 Pearl Street, New York, New York 10007. Failure to file
timely objections will preclude appellate review.
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