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Mitchell v. Home

June 5, 2006


The opinion of the court was delivered by: McMahon, J



Plaintiff Renee Mitchell was a certified nursing assistant in the employ of the Victoria Home, a nursing facility for the elderly located in Ossining, New York. In January 2000, Nelly Ramirez, a housekeeper employed by the Home, reported to the Home's Executive Director, Phyllis Bianco, that she had seen Mitchell strike and scream at an elderly resident. In addition to launching an internal investigation, Bianco reported the alleged conduct to the New York State Department of Health. Special Investigator Frank Bluszcz of the Medicaid Fraud Control Unit of the Criminal Division of the Office of the Attorney General of the State of New York was assigned to investigate.

In Fall 2000, Following Bluszcz's investigation, Mitchell was arrested and charged with one count of wilfully engaging in inappropriate physical contact with a nursing home resident, a misdemeanor of which she was later convicted. Mitchell appealed pro se and, on November, 21, 2003, the Appellate Term overturned her conviction as being against the weight of the evidence.

On May 2, 2005, Mitchell filed an amended complaint, naming the Victoria Home, Ramirez, and Bluszcz as defendants and alleging several federal constitutional and state law claims stemming from the termination of her employment and her subsequent prosecution. Defendant Victoria Home moved to dismiss the complaint and defendant Bluszcz moved to dismiss certain claims. On July 12, 2005, this Court granted the motions of defendants Victoria Home and Bluszcz and dismissed sua sponte the claims against defendant Ramirez.

Plaintiff's sole remaining claim is her charge of malicious prosecution (pursuant to both 42 U.S.C. § 1983 and New York state law) against defendant Bluszcz (the "defendant"). Defendant now moves for summary judgment on that claim. For the reasons stated below, defendant's motion is granted.


In January 2000, plaintiff Renee Mitchell was employed as a certified nursing assistant ("CNA") at the Victoria Home ("the Home"), a nursing home located in Ossining, New York. Amended Complaint ("Am. Cplt.") ¶¶ 10, 14. The Home is a privately-owned, state-certified, notfor-profit nursing facility.

On January 5, 2000, a housekeeper employed by the Home, Nelly Ramirez, contacted Phyllis Bianco, the Home's Executive Director. Ramirez told Bianco that, on January 1, 2000, she had heard A.J., a resident of the Home, crying for help, and had then observed Mitchell grabbing, hitting, and screaming at Mrs. J as Mitchell bathed her in the Home's first floor tub room.*fn1 Declaration of Phyllis Bianco ("Bianco") ¶ 3. Ramirez also told Bianco that, upon witnessing this scene, she asked a nearby nurse, Linda Walker, to investigate, but she declined, noting that Mrs. J simply didn't like bathing. Ramirez also informed Bianco that another CNA, Judith McIntosh, had witnessed the incident and alerted plaintiff when a nurse, Brenda Keesler, approached. Id..

The Home's Investigation

After conversing with Ramirez, Bianco commenced an investigation into whether or not Mitchell had, in fact, abused Mrs. J. She asked both Marjorie Upham, the Home's Director of Nursing, and Dr. Albert Riddle, the Home's Medical Director, to examine marks which were found on Mrs. J's neck, mid-sternal area, and wrist. Bianco ¶¶ 4, 6; see also Declaration of Marjorie Upham, R.N. ("Upham") ¶¶ 3-4. While Mrs. J could not recall when or how the discolorations on her neck and chest first appeared, and denied that she had been assaulted, Dr. Riddle concluded Mrs. J's comments were not reliable due to short-term memory problems consistent with dementia. Declaration of Albert Riddle, M.D. ("Riddle") ¶¶ 4-5. Based on blood tests and the resident's medical history, Riddle concluded that the marks were caused by trauma, in the form of either a constant application of pressure or a blunt blow to that area. Id. ¶¶ 6-12. Riddle further concluded that the bruises were unlikely to have resulted from accidentally banging into something, and that it was "improbable" that the bruises were caused by Mrs. J's jewelry. Id. ¶ 13. In February 2000, separate bruises on Mrs. J's person were attributed to a necklace which she wears; however, these bruises were apparently smaller than those seen on January 1. See Plaintiff's Exhibit DD; Plaintiff's Exhibit CC.

On January 6, 2000, the Home began interviewing employees who were on duty at the time of the incident, including the four whom Ramirez had identified as being in the vicinity of the alleged misconduct: plaintiff, McIntosh, Walker, and Keesler. Bianco ¶¶ 7, 10. Mitchell noted that she had not noticed a bruise on Mrs. J's neck when giving her a bath, nor did she remember the resident yelling or screaming. In addition, Mitchell noted that McIntosh had twice "stuck her head in" to the tub room while Mrs. J was bathing. See Defendant's Exhibit 8. McIntosh also stated that she did not recall seeing any bruises on Mrs. J on the morning of January 1, nor did she remember hearing the resident cry. However, she added that she had not looked into the tub room on the day in question and, in fact, did not even recall who had bathed the resident. See Defendant's Exhibit 9. Walker told Bianco that she had heard Mrs. J crying, but dismissed it as "typical" behavior for the resident while being bathed. However, she added that later that day Mrs. J "was really upset [and] really crying," and that Mrs. J then told her that Mitchell had called her a "dirty jew." Defendant's Exhibit 11. Keesler, who had been the desk nurse on duty during the time of the alleged incident, stated that she had heard Mrs. J cry later that day and that she had been asked to look at bruising on Mrs. J's neck sometime that day, probably in the morning. See Defendant's Exhibit 10.

After finishing this first round of interviews, Bianco concluded that it was possible that Mitchell had had inappropriate physical contract with Mrs. J, and she therefore reported the incident to the New York State Department of Health ("DOH"). Bianco ΒΆΒΆ 12-13. The Home continued its investigation over the next three weeks, and, on January 28, after concluding that Mitchell was "probably responsible" and that McIntosh had "probably witnessed" the incident without reporting it, Bianco terminated the women's ...

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