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Warheit v. City of New York

August 15, 2006


The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge


This action arises from an unfortunate incident on September 13, 2001, when Plaintiff Dr. Ira Warheit ("Dr. Warheit"), who wanted to volunteer at Ground Zero, was removed from Ground Zero by a New York City police officer, placed in an ambulance, and transported to Bellevue Hospital Center ("Bellevue"), where he was involuntarily committed under the New York Mental Hygiene Law for a period of five days. Plaintiff brings this action pursuant to 42 U.S.C. § 1983 against the City of New York, its police officers, and its hospital system,*fn1 claiming that his removal from Ground Zero and his subsequent admission to Bellevue violated his civil rights.*fn2


I. Underlying Facts

When Dr. Warheit, a New York-licensed periodontist, returned from his morning jog on September 11, 2001, the doorman at his apartment on West 42d Street informed him of the terrorist attacks at the World Trade Center. (Shaw Decl., Ex. 2, at 1; Id., Ex. 4, ¶ 2.) Believing that his dental training and his field dental experience in Vietnam could be of use in the recovery effort, Dr. Warheit immediately went upstairs to his apartment, changed out of his running clothes, and proceeded to lend assistance. (Id.; Ex. 2, at 1) He spent the day of the attack volunteering at the triage center, set up at Chelsea Piers, located on 21st to 23rd Streets, along the West Side Highway. (Warheit Dep. 54:20-21, May 21, 2004.)

The next day, September 12, 2001, Dr. Warheit continued to volunteer. This time, Dr. Warheit went to the trauma center, which had moved south to Stuyvesant High School ("Stuyvesant"); located at Chambers Street and the West Side Highway. (Id. 68:9-10.) One day after the terrorist attack, access to Ground Zero had not been formalized. Certainly, the public did not have access, but "official" identification was not required; volunteers would show up at the trauma center, state their qualifications, and be put to work. (Id. 69:3-73:5.) At the request of a coordinator at the Stuyvesant triage center, Dr. Warheit joined a work party of ten and spent all day passing out masks and supplies to the workers at Ground Zero. (Id. 73:15-74:16.) He also worked on a bucket brigade at Ground Zero. Apparently, he performed no medical or dental work on September 12, 2001.

On the morning of September 13, 2001, Dr. Warheit returned to the Stuyvesant triage center. By this time, the National Guard had begun to provide Ground Zero perimeter security, in addition to the New York City Police. Individuals were not permitted access to Ground Zero without proper identification. When Dr. Warheit arrived at the Chambers Street checkpoint, he was refused access. (Id. 88:21-89:7.) Dr. Warheit explained that he was a medical volunteer, so the checkpoint guards allowed him to proceed to the Stuyvesant High School trauma center to see if he could get an identification badge. (Id. 89:8-11.)

When Dr. Warheit arrived at Stuyvesant, he asked to speak with the medical person in charge, and was directed by the man at the registration desk to a doctor whose name and identity Dr. Warheit does not know. (Id. 89:13-90:6.) This unidentified doctor directed Dr. Warheit to Dr. Antonio Abad, M.D., a licensed psychiatrist who was also volunteering at the Stuyvesant trauma center.*fn3 (Id. 90:6-17.) Dr. Warheit approached Dr. Abad and started to explain his situation, but Dr. Abad stopped him and started asking him questions, the substance of which Dr. Warheit cannot recall. (Id. 90:17-21.) Dr. Warheit does remember, however, that Dr. Abad asked about his psychiatric history, and at some point in the conversation Dr. Warheit revealed that he had been previously been under the care of Dr. Cancro, one of Dr. Abad's colleagues. (Id. 90:23-91:8.) Dr. Abad then mentioned that he would like Dr. Warheit to go to Bellevue for observation. (Id. 91:10-12.)

After speaking for a couple of minutes, Dr. Abad excused himself. He returned accompanied by Lieutenant David Siev ("Lieutenant Siev"), a New York City police officer assigned to triage center security. (Siev Dep. 25:13-18, Sept. 10, 2004.) There is some dispute about what happened after Lieutenant Siev approached. Dr. Warheit claims that when he tried to explain his situation, Lieutenant Siev physically restrained him without giving him an opportunity to leave peacefully. (Warheit Dep. 94:14-95:10.) Lieutenant Siev disagrees. According to Lieutenant Siev, Dr. Abad approached him asking for assistance and explaining that "there was someone in . . . the trauma center, that was not a doctor who thinks he's a doctor and was causing a disturbance." (Siev Dep. 11:17-20.) Lieutenant Siev walked over and observed Dr. Warheit "rambling about stuff" incoherently, "talking about one thing or another and the sentences didn't follow each other in a logical pattern." (Id. 11: 24-25, 12:6-9.) Lieutenant Siev told Dr. Warheit to leave several times, but Dr. Warheit refused. (Id. 12:14-15, 13:4-9.) Lieutenant Siev then used physical force to remove Dr. Warheit from the building. (Id. 13:5-16.)

Lieutenant Siev grabbed Dr. Warheit's wrists, placed them behind his back, and escorted him out of the trauma center. (Warheit Dep. 95:11-104:17.) While Dr. Warheit was never placed in handcuffs, Dr. Warheit alleges that Siev treated him roughly, twisting his arm behind his back and, at one point, hitting him in the chest, though Dr. Warheit admits that this likely because he was walking bent over and Lieutenant Siev wanted him to straighten up. (Id.) Lieutenant Siev explains that he escorted Dr. Warheit out of the building in this manner "to protect [himself]," since he understood Dr. Warheit to be a mental patient who had just created a disturbance at the trauma center and did not want to leave. (Siev Dep. 11:18-14:20.)

Frank Fasano ("Fasano"), a certified nurse and paramedic who was also volunteering at the Stuyvesant trauma center on September 13, 2001 witnessed the entire incident. (Fasano Aff. ¶¶ 6, 8-9.) He first saw Dr. Warheit talking with Dr. Abad, whom he described as "a large man about 6'3" with an accent." (Id. ¶ 8.) According to Fasano, the interaction between Dr. Warheit and Dr. Abad was not peaceful. Dr. Abad was "clearly agitated" through the interaction, "berate[ing] and criticize[ing]" Dr. Warheit "in a loud, rude, derogatory and inflammatory fashion," and then ordering Lieutenant Siev to arrest Dr. Warheit because he was a "delusional psychotic." (Id. ¶¶ 8-9.) Fasano described Dr. Warheit as "a bit overwhelmed," but calm enough to permit Lieutenant Siev to escort him out of the building "peaceably." (Id. ¶ 10.) In fact, Fasano described the interaction between Dr. Warheit and Lieutenant Siev as so peaceful that he "didn't know that [Dr. Warheit] was being taken away." (Fasano Dep. 82:17-18, June 14, 2005.)

Once out of the building, Lieutenant Siev brought Dr. Warheit to one of the many ambulances waiting outside the trauma center. Dr. Warheit climbed inside the back section of the ambulance peacefully, without any assistance. (Warheit Dep. 104:18-21.) Lieutenant Siev did not get in the ambulance with Dr. Warheit and no one restrained Dr. Warheit in any way. (Id. 105:3-14, 106:12-21.)

At Lieutenant Siev's request, the ambulance driver took Dr. Warheit to the emergency room at Bellevue. (Siev Dep. 14:9-16.) Lieutenant Siev claims that he sent Dr. Warheit to Bellevue at his own request, explaining that while he was escorting Dr. Warheit out of the Stuyvesant trauma center, Dr. Warheit told Dr. Abad that he was "getting treated at Bellevue" and wanted "to "go back" to Bellevue." (Id. 13:21-14:16.) Dr. Warheit claims that he never instructed Dr. Abad or anyone else to take him to Bellevue, and that it was Dr. Abad's idea to send him there. (Warheit Dep. 107:1-3; Pl's Local Rule 56.1 Statement Corrected ¶¶ 49, 51) While Dr. Warheit now suggests that he told the ambulance driver he had a treating physician at NYU Medical Center and demanded that the driver take him there instead, during his deposition he testified that he never told the ambulance driver not to take him to Bellevue. (Pl.'s Local Rule 56.1 Statement ¶¶ 49, 51; Warheit Dep. 106:22-25.)

The ambulance arrived at Bellevue around 11:30 a.m. (Najib Decl., Ex. L (Bellevue Medical Records).) Dr. Warheit left the ambulance of his own volition, but then refused to go inside the hospital with Dr. Lightdale, one of the psychiatrists at Bellevue, because he had a "subjective feeling" that once he was inside he "wouldn't be let out." (Warheit Dep. 108:19-23.) Dr. Warheit was agitated and would not enter the hospital or answer Dr. Lightdale's questions, so Dr. Warheit was placed in restraints and given Haldol, a powerful antipsychotic drug, to calm him down.*fn4 (Najib Decl., Ex. L.)

During his initial interview with Dr. Lightdale, Dr. Warheit admitted to a prior history of Bipolar Disorder that had required a psychiatric hospitalization in 1997. (Id.) He also admitted that he was previously on Paxil and Depakote, anti-psychotic medications, but had not take them for years. (Id.) In light of this history, Dr. Lightdale determined that Dr. Warheit was suffering from a manic episode.

Dr. Warheit repeatedly demanded to leave Bellevue. The records indicate that on September 13, 2001 Bellevue called Dr. Cancro, the head of psychiatry at Bellevue, and one of Dr. Warheit's treating physicians. Dr. Cancro confirmed that Dr. Warheit has a long history of Bipolar Disorder with aggressive manic episodes. (Id.) Based on the information provided over the phone, Dr. Cancro recommended that Dr. Warheit be admitted to Bellevue and started on Depakote. (Id.) At 2:45 p.m. on the afternoon of September 13, 2001, Dr. Lightdale and Dr. Mtrevski admitted Dr. Warheit to Bellevue involuntarily, pursuant to New York Mental Hygiene Law § 9.39, in accordance with their determination that Dr. Warheit suffered from a mental illness that was likely to result in serious harm to himself or others if immediate care was not provided. (Id.)

Dr. Warheit petitioned the court for release from Bellevue. (Id.) On September 18, 2001, a hearing was held at Bellevue to determine whether Dr. Warheit was in need of involuntary hospitalization. (Id.) The State Supreme Justice presiding at the Mental Hygiene hearing ordered Dr. Warheit's release. (Id.) Dr. Warheit claims severe and ongoing emotional trauma resulting from his arrest and subsequent involuntary commitment at Bellevue.

After his release, Dr .Warheit wrote to the New York Commission on Quality of Care for the Mentally Disabled complaining that he was unnecessarily detained at the hospital, improperly medicated and placed in restraints, and had false testimony offered in court by attending physician Dr. Anand Pandya during his retention hearing. (Najib Decl., Ex. J.) The Commission investigated, reviewed Dr. Warheit's admission and treatment records, and interviewed the clinical staff involved in his care. (Id.). The Commission found no evidence to support Dr. Warheit's allegations. (Id.) Instead, the Commission concluded that "several Board certified psychiatrists, and numerous other hospital staff, consistently documented behavior by Dr. Warheit after his arrival at [Bellevue] which was adequate to reasonably require his evaluation . . . and emergency admission to inpatient psychiatry." (Id.) The Commission found no cause to question the decisions of the Bellevue staff. (Id.)


Dr. Warheit filed a written notice of claim on the City Defendants within 90 days of being released from Bellevue (Najib Decl., Ex. B ("Notice of Claim")); and commenced this action on August 29, 2002. His Complaint alleges false arrest, use of excessive force, false imprisonment, and cruel and unusual punishment in violation of his Fourth and Eighth Amendment rights, as well as malicious prosecution, medical malpractice, negligence, defamation, prima facie tort, and intentional infliction of emotional distress in violation of New York state law. (Compl. 36-42.) Dr. Warheit named as defendants the City of New York (the "City"), the New York City Health and Hospitals Corporation ("HHC"), Bellevue Hospital Center ("Bellevue"), the New York City Fire Department's Emergency Services Division, the New York City Police Department, and Lieutenant David Siev ("Lieutenant Siev"), as well as three individual Bellevue physicians who have since been released from the action. (Id. ΒΆ 1.) After extensive discovery, Defendants now move for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure on multiple grounds: (1) Plaintiff cannot establish any federal claims against the named defendants; (2) Plaintiff cannot maintain his New York state claims ...

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