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Algarin v. New York City Dep't of Correction

October 30, 2006


The opinion of the court was delivered by: Jed S. Rakoff, U.S.D.J.


Plaintiff Morris Algarin, an officer with the New York City Department of Correction ("DOC") who was involuntarily committed for several days at two hospitals, brings suit under 42 U.S.C. § 1983 and parallel New York State law, alleging that in connection with the commitments all the public defendants violated his rights under the due process clauses of the United States and New York State constitutions and that the two private defendants, Holliswood Hospital and its employee Dr. Milstein, violated his state law right to be free from false imprisonment. Plaintiff now moves for summary judgment in his favor on his due process claims against two of the publicly-employed defendants, Dr. Mathur and Dr. Barouche, while all defendants except Dr. Milstein cross-move for summary judgment dismissing all claims against them.*fn1

The pertinent facts, either undisputed, or, where disputed, taken most favorably to plaintiff,*fn2 are as follows. In September 2004, Algarin experienced a "confusing" episode at work in which he imagined that he heard the voice of his captain telling him he was fired. Holliswood's Statement of Facts to Which There Does Not Exist a Genuine Issue Pursuant to L. Civ. R. 56.1 ("Holliswood St.") ¶ 16; Plaintiff's Response to Holliswood's Rule 56.1 Statement ("Pl. St. I") ¶ 16. Plaintiff was referred for evaluation to the DOC's Health Management Division ("HMD"), where he saw Dr. Barouche and a social worker named Scott Forsmith. Holliswood St. ¶¶ 17-18; Pl. St. I ¶¶ 17-18. Following this episode, plaintiff admitted himself to South Oaks Hospital on October 21, 2004 for in-patient treatment, telling the doctors there, among other things, that he had recently been seeing people covered in blood who were commanding him to join them. Holliswood St. ¶ 19; Pl. St. I ¶ 19. At South Oaks, plaintiff was diagnosed with major depressive disorder with psychotic features and prescribed the antipsychotic drug Seroquel and the antidepressant drug Lexapro. Holliswood St. ¶¶ 21-22; Pl. St. I ¶¶ 21-22. Plaintiff was discharged from South Oaks after one week and attended a partial hospitalization program there until November 23, 2004, during which time he continued taking his medications. Holliswood St. ¶¶ 20, 23; Pl. St. I ¶¶ 20, 23.

On January 27, 2005, however, after plaintiff had not taken his medications for three weeks, plaintiff again reported that he was having visual hallucinations and hearing voices. Holliswood St. ¶¶ 25, 26; Pl. St. I ¶¶ 25,26. Later that day, Dr. Mathur evaluated plaintiff at HMD. Holliswood St. ¶ 27; Pl. St. I ¶ 27. Plaintiff gave Dr. Mathur a note from plaintiff's treating physician that described his illness and the medication he had been prescribed, and informed Dr. Mathur that he had not been taking the medication for three weeks. City Defendants' Local Rule 56.1 Statement of Undisputed Material Facts ("City St.") ¶¶ 2-3; Plaintiff's Response to City Defendants' Rule 56.1 Statement ("Pl. St. II") ¶¶ 2-3. Dr. Mathur eventually directed HMD staff to call 911 and directed Captain Lopez to restrain plaintiff so that he could be sent to the emergency room for a psychiatric evaluation. City St. ¶ 5; Pl. St. II ¶ 5. Police officers detained plaintiff at HMD and transported him to Elmhurst Hospital. City St. ¶ 6; Pl. St. II ¶ 6.

Within six hours of his arrival at Elmhurst, plaintiff was examined, first by Dr. Rondon, a psychiatry resident (and not a defendant here), and then by Dr. Burke, an attending psychiatrist (and a defendant here). City St. ¶ 7; Pl. St. II ¶ 7. Dr. Rondon and Dr. Burke were aware that plaintiff had been hospitalized at South Oaks in October 2004 and that plaintiff had been suicidal in the past. City St. ¶¶ 8-9; Pl. St. II ¶¶ 8-9. Dr. Rondon determined that plaintiff had been suffering from harassment and stress at work.

City St. ¶ 10; Pl. St. II ¶ 10. Dr. Rondon also noted that plaintiff appeared "stressed, angry . . . internally preoccupied," that plaintiff spoke "with his eyes closed most of the time," and that plaintiff "[r]efused to answer questions regarding delusions or hallucinations." Declaration of Cindy E. Switzer dated July 27, 2006 ("Switzer Declaration"), Ex. C at D000016; City St. ¶ 10; Pl. St. II ¶ 10. Dr. Burke, however, after evaluating plaintiff, meeting with plaintiff's wife, and receiving assurances that plaintiff did not have access to guns at home, discharged plaintiff to his wife's care with instructions to follow up with plaintiff's therapists. City St. ¶ 11; Pl. St. II ¶ 11.

Subsequently, on February 7, 2005, Dr. Barouche met with plaintiff at HMD to determine whether plaintiff was fit for duty. City St. ¶ 12; Pl. St. II ¶ 12. According to plaintiff, during the course of the meeting, Dr. Barouche (a female) suggested that plaintiff quit his job if he could not "handle the stress," and plaintiff replied: "How would you feel if I or someone else fondled your breast and touched your buttocks and sexually harassed you and you told a supervisor and they said, 'If you can't handle it, quit.'" Declaration of Mercedes Maldonado dated August 15, 2006, Ex. C ¶ 6. Whatever the exchange --- compare Plaintiff's Statement of Undisputed Facts Pursuant to Fed. R. Civ. P. 56.1 ("Pl. St. III") ¶¶ 22, 25 with City Defendants' Counter Statement Pursuant to Local Rule 56.1 ("City Counter St.") ¶¶ 22, 25 --- Dr. Barouche had followed plaintiff since 1997 and had never seen him act this way before, in a manner she regarded as threatening. Pl. St. III ¶ 28; City Counter St. ¶ 28; City St. ¶ 13; Pl. St. II ¶ 13. As a result, Dr. Barouche directed HMD staff to call 911. City St. ¶ 15; Pl. St. II ¶ 15. Police officers subsequently transported plaintiff to Elmhurst. City St. ¶ 15; Pl. St. II ¶ 15.

Within six hours of plaintiff's arrival at Elmhurst, he was again examined by doctors. City St. ¶ 16; Pl. St. II ¶ 16. At least some of the medical staff at Elmhurst found plaintiff to be "uncooperative, very guarded and suspicious" and to exhibit mild paranoia. City St. ¶ 17; Pl. St. II ¶ 17. More importantly, plaintiff told the Elmhurst staff that he had experienced visual and auditory hallucinations of people covered in blood calling for him to join them (although the parties dispute whether plaintiff said he was having these hallucinations that day) and that he found these hallucinations very frightening. City St. ¶ 18; Pl. St. II ¶ 18.

By 8:00 am the next morning, February 8, 2005, i.e., within 24 hours of plaintiff's entrance into the hospital, a Dr. Dopkin (not a defendant here) certified plaintiff's emergency admission to Elmhurst pursuant to New York's Mental Hygiene Law ("MHL") § 9.40, which provides for emergency observation, care and treatment in a comprehensive psychiatric emergency program ("CPEP"). Holliswood St. ¶ 45; Pl. St. ¶ 45. During the day, Dr. Dopkin and Dr. Iordache (a defendant here) reevaluated plaintiff and certified him for involuntary admission pursuant to MHL § 9.27, and the Deputy Director of Elmhurst, Dr. Barron (not a defendant here), later approved this certification. Holliswood St. ¶ 45; Pl. St. ¶ 45. Dr. Iordache, on his certification for involuntary commitment, described plaintiff as having a "history of psychosis, now very labile, irritable, guarded, paranoid ideation, intermittent visual and auditory hallucinations of people covered in blood calling to go to them, threatening to hurt self and others." Switzer Declaration Ex. C at D000040. Similarly, Dr. Dopkin, on his certification, described plaintiff as "labile paranoid threatening with intermittent auditory visual hallucinations / menacing labile unpredictable / Danger to others." Id. at D000042. According to plaintiff, he openly acknowledged his past hallucinations, but did not describe himself as currently experiencing those symptoms. Declaration of Mercedes Maldonado dated August 17, 2006, Ex. B ¶ 18. Plaintiff notes that a psychology intern at Elmhurst described plaintiff as "alert and oriented" with "[n]o evidence of hallucinations or overt delusions" or "suicidal/homicidal ideation." Pl. St. II ¶ 17; Switzer Declaration Ex. C at D000063. But the intern also described plaintiff as having a "euphoric" mood," a "mildly dysphoric" affect, and "mild paranoid thoughts." Switzer Declaration Ex. C at D000063.

In any event, following Dr. Barron's certification pursuant to MHL § 9.27, plaintiff was transferred to Holliswood Hospital for in-patient treatment. Holliswood St. ¶ 47; Pl. St. ¶ 47. Upon his arrival at Holliswood, plaintiff was examined by a Dr. Koppel (not a defendant here), who reviewed, among other things, a copy of records and notes from Elmhurst. Holliswood St. ¶ 48; Pl. St. ¶ 48. Dr. Koppel accepted plaintiff for admission to Holliswood and Dr. Vladimir Milstein was assigned as plaintiff's treating psychiatrist. Holliswood St. ¶¶ 49-50; Pl. St. ¶¶ 49-50.

The next day, February 9, 2005, a treatment team made up of Dr. Milstein, a social worker named Nana Asirifi, an intern named Sophia Smith, and others was assigned to plaintiff and evaluated him. Holliswood St. ¶¶ 53, 55; Pl. St. ¶¶ 53, 55. (Of the team, only Dr. Milstein is a defendant here.) The team discussed a treatment plan with plaintiff, which he signed, and different members of the team met with plaintiff at various times during his stay. Holliswood ¶¶ 55-56, Pl. St. ¶¶ 55-56. At one point, plaintiff told Nana Asirifi about his hallucinations of bloody people and of other hallucinations that interfered with his ability to sleep. Holliswood St. ¶ 57; Pl. St. ¶ 57.

Plaintiff also kept a personal diary while at Holliswood in which, in the entry dated February 10, he described seeing "a man sitting on the chair covered in blood," which "freaked [him] out so bad" because "[i]t was so real." Affidavit of Lori R. Semlies dated July 26, 2006 ("Semlies Affidavit"), Ex. M at 4; Holliswood St. ¶ 59; Pl. St. ¶ 59. Plaintiff also wrote in his diary that he was concerned about a "conspiracy" because on February 9, "Dr. Milstein . . . came into my room and told me, 'Before you explain to me what brings you here, I want you to understand that Dr. B[a]rouche is actually a good friend of mine and I [have] know[n] her for many years.'" Semlies Affidavit Ex. M at 2. "The only message" plaintiff got from these remarks was "keep your mouth shut and you might live." Id. Later in his diary, plaintiff summarized his time at Holliswood and wrote, with respect to February 9: "Definitely a conspiracy.

Now I'm really dead." Id. at 5. Plaintiff confirmed at his deposition that his diary accurately reflected his time at Holliswood and confirmed that he had two hallucinations while there. See Tr. at 72-75. Holliswood discharged plaintiff on February 15, 2006 with a diagnosis of schizophrenic disorder, bipolar type, PTSD. Holliswood St. ¶ 61; Pl. St. ¶ 61.

Against this background, the Court turns first to plaintiff's motion for summary judgment against Dr. Mathur and Dr. Barouche. At oral argument on August 29, 2006, the Court denied this motion from the bench, see Tr. at 18, but a few further words are in order. Plaintiff grounds his summary judgment motion principally on the assertion that neither Dr. Mathur nor Dr. Barouche qualified as a supervising psychiatrist authorized to order involuntary confinement under ยง 9.55 of the MHL, or under any ...

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