REPORT AND RECOMMENDATION TO THE HONORABLE VICTOR MARRERO, U.S.D.J.:
Shirley Ann Fisk brings this action under 28 U.S.C. § 1983, alleging violation of her civil rights in connection with her involuntary commitment for psychiatric treatment. She has also asserted pendent state law claims. Defendant Delsa Best now moves pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the amended complaint for failure to state a claim insofar as it relates to her. For the following reasons, I recommend that the motion be granted.
The facts as alleged in the amended complaint are discussed at length in my prior Report and Recommendation and in the decision of the Honorable Victor Marrero, U.S.D.J. adopting my recommendation in part. Fisk v. Letterman, 401 F. Supp. 2d 362 (S.D.N.Y. 2005). Accordingly, I will summarize those facts only briefly.
Ms. Fisk resided at the Lenox Hill Women's Shelter during the summer of 2002. She asserts that in July 2002 she was taken to Bellevue Hospital for psychiatric treatment as the result of false allegations that she had been stalking David Letterman, the late-night talk show host. After her release from the hospital, Ms. Fisk commenced the instant action. She alleges that Mr. Letterman, Leslie Moonves, Mel Karmazin, William Delace, Michael McIntee, Sumner Redstone, Viacom, Inc., CBS Broadcasting, Inc., and Worldwide Pants, Inc. (collectively, the "CBS Defendants") falsely reported that she had harassed Mr. Letterman and that they conspired with others to violate her civil rights. Ms. Fisk also alleges that a number of employees of the City of New York violated her rights by effecting her involuntary commitment and that Susan Kolcun, an attorney appointed to represent her at a hearing concerning her continued commitment, provided inadequate assistance of counsel. The plaintiff further implies that the State of Connecticut and Grace Mones, a social worker employed by the State (collectively, the "Connecticut Defendants"), were responsible for providing false information that contributed to the determination to commit her. All claims against the CBS Defendants, Ms. Kolcun, and the Connecticut Defendants have been dismissed, while the claims against the employees of the City of New York remain pending.
The claim against the moving defendant, Delsa Best, consists of a single paragraph of the amended complaint:
On August 29, 2002 Plaintiff returned to the CITY shelter, Lenox Hill Women's Shelter and Plaintiff picked up her mail and spoke to CITY social worker, BEST. BEST informed Plaintiff that she would now be able to return to the CITY's Lenox Hill Women's Shelter. Plaintiff had not been allowed to return directly from CITY's Bellevue Hospital because of CITY "red tape" according to CITY employee, Defendant Best. (Amended Complaint, ¶ 73). However, in response to Ms. Best's motion to dismiss, Ms. Fisk has elaborated on her claim. She now alleges that social worker Delsa Best refused to allow Plaintiff to return to the homeless shelter operated by her employer, Lenox Hill Neighborhood House, when contacted by Plaintiff's doctor, Defendant ROMAN, and by Plaintiff's attorney, Defendant KOLCUN. Delsa Best cited "red tape" and refused to allow Plaintiff to return to the Lenox Hill Women's Shelter thereby extending Plaintiff's unlawful incarceration at CITY's Bellevue Hospital for several weeks. (Memorandum of Law of Plaintiff Pro Se Shirley Ann Fisk in Opposition to Motion to Dismiss of Defendant Delsa Best (the "Plaintiff's Memorandum in Opposition"), at 2). Ms. Best argues that these allegations fail to state a claim.
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).
Ms. Fisk's amended complaint asserts claims of intentional infliction of emotional distress ("IIED"), negligent infliction of emotional distress ("NIED"), false imprisonment, and civil conspiracy. However, the plaintiff has failed to state a claim against Ms. Best under any of these theories.
A. Intentional Infliction of Emotional Distress
"The state law tort of intentional infliction of emotional distress has four elements: (1) extreme and outrageous conduct, (2) intent to cause severe emotional distress, (3) a causal connection between the conduct and the injury, and (4) severe emotional distress." Bender v. City of New York, 78 F.3d 787, 790 (2d Cir. 1996); accord Silver v. Kuehbeck, No. 05 Civ. 35, 2005 WL 2990642, at *7 (S.D.N.Y. Nov. 7, 2005); Howell v. New York Post Co., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 353 (1993). It is beyond dispute that the allegations in the amended complaint -- that Ms. Best told Ms. Fisk that "red tape" had delayed her return to the Lenox Hill Women's Shelter but that she could now go back -- do not satisfy these elements.
The question then arises whether the allegations contained in the Plaintiff's Memorandum in Opposition should also be considered. Generally, a party may not amend her pleadings simply by responding to a motion to dismiss. See, e.g., Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998); Fadem v. Ford Motor Co., 352 F. Supp. 2d 501, 516 (S.D.N.Y. 2005). However, it is necessary to evaluate Ms. Fisk's potential claims to determine whether, on the one hand, her complaint should be dismissed without prejudice so that she has an opportunity to amend, or, on the other hand, the complaint should be dismissed with prejudice because any attempt to submit a further amended pleading would be futile. See Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993).
The new assertions Ms. Fisk has made in response to the motion to dismiss also fail to state an IIED claim. Even if Ms. Best denied the plaintiff an opportunity to return to the Lenox Hill Shelter and even if she falsely claimed that this was because of "red tape," her conduct was not so extreme or ...