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Makas v. Miraglia


January 23, 2007


The opinion of the court was delivered by: Frank Maas, Magistrate Judge


I. Introduction

Plaintiff Timothy Makas ("Makas") is a patient at the Mid-Hudson Forensic Psychiatric Center ("Mid-Hudson"), a secure hospital operated by the State of New York ("State") in New Hampton, New York. He brings this civil rights action, pursuant to 42 U.S.C. § 1983 ("Section 1983"), to recover damages for emotional and physical injuries arising out of blood draws that periodically were taken from him at Mid-Hudson without a warrant and without his consent. Makas also contends that his confidential medical test results were improperly disseminated to persons who had no right to be privy to them. The defendants are Richard Miraglia ("Miraglia"), who is alleged to be the Commissioner of the New York State Office of Mental Health ("OMH");*fn1 Howard Holanchock ("Holanchock"), the Director of Mid-Hudson; Drs. Malik ("Malik"), Beth A. Judge ("Judge"), and Salil Kathpalia ("Kathpalia"), who are alleged to be psychiatrists at MidHudson; Sue Stevens ("Stevens"), a Security Hospital Treatment Assistant ("SHTA")*fn2 at Mid-Hudson; and OMH (collectively, the "Defendants").*fn3

In his pro se amended complaint ("Complaint" or "Compl."), Makas contends that the Defendants' actions violated his rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution, and his "statutory right of privacy," and give rise to claims of intentional infliction of emotional distress and negligence.

The Defendants have moved to dismiss the Complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, on the grounds that (a) Makas has failed to state a claim upon which relief can be granted, (b) the Eleventh Amendment bars Makas' claim against OMH, (c) the Defendants are entitled to qualified immunity, and (d) Makas has failed to allege sufficient personal involvement on the part of Miraglia and Holanchock. For the reasons set forth below, I recommend that this motion be granted, and that the Complaint be dismissed.

II. Background

A. Facts

The facts set forth below are derived principally from the Complaint and the exhibits thereto, and for present purposes are assumed to be true.

1. Charges Leading to Civil Commitment

In 1998, Makas set fire to one of two adjoining properties that he owned in the Village of Hurley in Ulster County. See People v. Makas, 709 N.Y.S.2d 650, 651 (3d Dep't 2000). Makas then called "911" to report the fire, stating that he wanted the police to respond and shoot him. Id. He was indicted on arson charges and eventually was found competent to stand trial. Id. at 651-52. He pleaded guilty to Arson in the Second Degree, but his conviction was set aside on appeal because his allocution failed to establish all of the necessary elements of that crime. Id. at 652-53.

Thereafter, Makas was permitted to plead "not responsible by reason of mental disease or defect" pursuant to Section 220.15 of the New York Criminal Procedure Law ("CPL"). Following that plea, Makas was placed in the custody of the OMH Commissioner and committed to Mid-Hudson. See Makas v. Schlenker, 793 N.Y.S.2d 604 (3d Dep't 2005). He has since been housed in at least two different wards of Mid-Hudson. (See Compl. ¶ 5).

2. Blood Draws at Mid-Hudson

From January 2001 until January 2003, Makas was assigned to Building 4 at Mid-Hudson. While he was there, several "John Does" not named as defendants in this case drew blood from him on a yearly basis. (Id. ¶¶ 5, 7). "[A]mid threats of physical violence," Makas "tried to resist" these bloods draws and demanded that the OMH staff first obtain a court order. (Id. ¶ 8). Nevertheless, "fearing for his further physical and mental health," Makas "gave blood under duress." (Id. ¶ 9).

In or around January 2003, Makas was transferred to Building 2 at MidHudson, where the "threats and painful blood stabbings continued and escalated." (Id. ¶ 10). Beginning in the summer of 2003, Makas' blood was drawn every three months; by the summer of 2004 the frequency of the draws had escalated to monthly. (Id.). Makas does not know which OMH employees actually drew his blood on these occasions because Judge prevented him from reviewing his medical chart. (Id. n.1).

In July 2004, Makas learned that "Albany" was now requiring that patients' blood be tested once every three months. (See Compl. Ex. F).*fn4

In February 2005, Judge and Stevens attempted to draw Makas' blood, explaining that Mid-Hudson now required a blood draw once every three months. (Id. ¶ 11). When Makas resisted, he was not required to give blood. (Id.).

On March 9, 2005, Makas wrote to Holanchock because Judge sought to draw his blood every three months to monitor his cholesterol levels and liver health. (See Compl. Ex. A (letter dated Mar. 9, 2005, from Makas to Holanchock)). Makas explained his understanding that the OMH policy required only annual blood-testing, and he expressed "constitutional" concerns about the manner in which that policy was being implemented. (Id.).

In or around late March 2005, Judge warned Makas that if he resisted further blood draws, SHTAs would "hold [him] down and forcibly take blood without a court order," after which he would be removed from Mid-Hudson's "honor ward." (Compl. ¶ 12). The following day, Malik, who is Judge's supervisor at Mid-Hudson, informed Makas that Mid-Hudson would draw his blood once every six months. (Id. ¶ 14). Makas felt "under duress, intimidated, uncomfortable and pressured . . . [,] so he agreed to give blood." (Id. ¶ 15).

On April 10, 2005, a Mid-Hudson nurse declined Makas' request that she draw blood from his hand rather than his arm. (Id. ¶ 16). After Makas refused to let the nurse draw blood from his arm, Stevens "jumped at [Makas] saying 'why are you refusing again?'" (Id. ¶ 17 (internal quotation marks and question mark added)). That same day, Makas wrote to Miraglia to report that Judge and Stevens had threatened to "tak[e his] blood, by force, without court order." (See Compl. Ex. B (letter dated Apr. 10, 2005, from Makas to Miraglia)). Makas added that, "[b]esides having needles deliberately twisted around in the arm/hand causing extreme pain and bruising," he had "been threatened with physical force and/or legal action." (Id.). Makas explained that the blood draws caused him "extreme emotional pain -- sleepless nights and all; not to mention the physical trauma of being stabbed repeatedly." (Id.). In his letter, Makas again asserted that these blood draws violated his constitutional rights. (Id.).

On April 11, 2005, the Mid-Hudson clinic drew blood from Makas in a procedure that he characterizes as having been "stabbed" in the arm "amid protests." (Compl. ¶ 18). That same day, Makas wrote to an unidentified Mid-Hudson "Unit Chief" to request that he be permitted to see his medical records. Makas also reported that Judge and Stevens had "threatened physical harm" and that he would be "held down [without] court order to obtain blood" if he resisted. (See Compl. Ex. C (letter dated Apr. 11, 2005, from Makas to Unit Chief)). Four days later, Judge prescribed anti-depression medication that Makas took for "fear of retaliation for refusing medication." (Compl. ¶ 20). The medicine, which later was discontinued, made Makas both physically and mentally ill. (Id.).

On April 20, 2005, Judge informed Makas that he could refuse the blood draws, but that he would be removed from the "Honor/Discharge Ward" if he did. (Id. ¶ 22).

In mid-May 2005, Makas gained access to his medical records and learned that Mid-Hudson was testing his blood for syphilis and hepatitis and to monitor his thyroid level. (Id. ¶¶ 23-24). Accordingly, on May 15, 2005, Makas wrote to Miraglia to complain that the testing was an invasion of his privacy. In the letter, Makas asked, "What[']s next -- DNA?" (Compl. Ex. D (letter dated May 15, 2005, from Makas to Miraglia)). Makas also stated that, even though Judge had informed him that he could refuse blood draws, Mid-Hudson's "overall" blood-drawing policy remained unclear. (Id.). Five days later, Miraglia responded to Makas' letter, suggesting that Makas work with his "treatment team and have them arrange with the appropriate clinical staff that a more thorough explanation be provided to you the next time it is necessary for your blood to be drawn." (See Compl. Ex. E (letter dated May 20, 2005, from Miraglia to Makas)). Kathpalia was sent a copy of this letter. (Id.).

At some point, Makas also complained to a Mid-Hudson hotline about the blood draws, but he received no further response from the facility's administration. (Compl. ¶ 25).

On May 28, 2005, Makas was returned to Building 4. (Id. ¶ 6). Thereafter, for the remainder of the year, he refused to allow Mid-Hudson to draw his blood. (Id. ¶¶ 28-30).

3. Sharing of Medical Information

Makas also contends that his medical records were shared without his consent with "DA's[,] attorney generals, social workers, unit chiefs, guards (SHTAs), etc." (Id. ¶ 41 n.2 (block capitalization omitted)).

B. Complaint

Makas' original pro se complaint is dated July 17, 2005, and was received by the Pro Se Office of this Court on July 22, 2005. Thereafter, Makas amended his complaint on January 31, 2006. (See Docket No. 28). In his amended pleading, Makas asserts numerous claims.

First, Makas asserts several federal claims. Specifically, Makas contends that Malik, Judge, Stevens, and OMH violated his rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments by (i) drawing his blood without his consent or a court order, and (ii) making "intentional threats to physically take [his] blood with or without court order." (Compl. at 13-14, 19). Makas also claims that Miraglia and Holanchock are liable for "tolerating such misconduct" and refusing "to adequately train, direct, [and] supervise [Mid-Hudson] staff" on proper procedures. (Id.). Makas further alleges that Kathpalia, Miraglia, and Holanchock violated his constitutional rights to due process and to be free of unreasonable search and seizure, as well as his "statutory right to privacy," by authorizing the testing of his blood for infectious diseases. (Id. at 19). Additionally, Makas alleges that Miraglia and Holanchock violated his rights because "other defendants" acting within the scope of their employment disseminated his "private blood test results to [third] parties." (Id. at 19.5). Finally, Makas claims that Malik, Judge, Kathpalia, and Stevens conspired to violate his rights "by acting in concert to ignore [his] requests for no blood work and together creating an environment of intimidation and coercion[,] including the use of verbal abuse." (Id. at 16).

Makas also asserts two state law claims. First, he alleges that Judge and Stevens are liable to him for intentional infliction of emotional distress because they ignored his rights "of not giving blood [and] of being free of intentional verbal abuse" and acted in an "extreme, outrageous, and unjustified" manner that caused him "to suffer physical and emotional distress." (Id. at 17). Second, Makas claims that the Defendants were negligent because they failed to perform their duties "without the use of intimidation, coercion and verbal abuse and refus[ed him] his constitutional rights." (Id. at 18).

In his Complaint, Makas seeks compensatory and exemplary damages, as well as costs and attorney's fees.

C. Motion to Dismiss

On September 13, 2006, the Defendants filed their motion to dismiss the Complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Defendants maintain that Makas does not have a constitutional right to resist routine diagnostic blood draws while he is civilly committed to a secure state hospital. The Defendants further contend that, even if Makas has a constitutional right not to be tested, the individuals he has sued are entitled to qualified immunity, and the Eleventh Amendment bars any recovery against OMH. The Defendants also allege that Miraglia and Holanchock had no personal involvement in the alleged wrongs. Finally, the Defendants maintain that Makas has no right to have his medical records kept private under the circumstances of this case.

Makas has filed a memorandum of law in opposition to the motion to dismiss, (Docket No. 33), and the Defendants have filed a reply memorandum (Docket No. 35). Accordingly, the motion is fully submitted.

III. Discussion

A. Standard of Review

"Any Rule 12(b)(6) movant for dismissal faces a difficult (though not insurmountable) hurdle." In re Nortel Networks Corp. Sec. Litig., 238 F. Supp. 2d 613, 621 (S.D.N.Y. 2003) (quoting Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999)). In reviewing a Rule 12(b)(6) motion to dismiss for failure to state a claim, the Court must "limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference." Newman & Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660, 662 (2d Cir. 1996) (quoting Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991)). Additionally, the Court must accept as true all factual allegations made in the complaint and draw all reasonable inferences in favor of the plaintiff. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995). The Court may grant the motion only when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

"Where a party proceeds pro se, the Court is obligated to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Sloane v. Mazzuca, No. 04 Civ. 8266 (KMK), 2006 WL 3096031, at *3 (S.D.N.Y. Oct. 31, 2006) (citing Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)) (brackets and ellipsis in original); see also Davis v. Kelly, 160 F.3d 917, 922 (2d Cir. 1998) ("Though a court need not act as an advocate for pro se litigants, in pro se cases there is a greater burden and a correlative greater responsibility upon the district court to insure that constitutional deprivations are redressed and that justice is done.") (internal quotation marks and citation omitted)). This principle applies with particular force in cases such as this in which a pro se plaintiff alleges civil rights violations. See, e.g., Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993); Contes v. City of New York, No. 99 Civ. 1597 (SAS), 1999 WL 500140, at *2 (S.D.N.Y. July 14, 1999). "However, even when assessing a pro se plaintiff's claim under the Rule 12(b)(6) standard, 'a conclusory allegation . . . without evidentiary support or allegations of particularized incidents, does not state a valid claim.'" Sloane, 2006 WL 3096031, at *3 (quoting Butler v. Castro, 896 F.2d 698, 700 (2d Cir. 1990)) (ellipsis in original). 11

B. Section 1983 Claims

Section 1983 provides a means by which a person alleging a constitutional deprivation may bring a claim, but does not itself create any substantive rights. Sykes, 13 F.3d at 519. Accordingly, to state a claim under Section 1983, a plaintiff must allege that a defendant acting under color of state law has deprived him of a right, privilege, or immunity guaranteed by the United States Constitution. See 42 U.S.C. § 1983; Fox v. City of New York, No. 03 Civ. 2268 (FM), 2004 WL 856299, at *4 (S.D.N.Y. Apr. 20, 2004). Here, Makas alleges that the Defendants, acting under the color of state law, violated his Fourth, Fifth, Eighth, and Fourteenth Amendment rights.

1. Fourth Amendment

Makas contends that his Fourth Amendment rights have been violated because the blood draws taken by the Defendants without a warrant constitute an unreasonable search and seizure. (See Compl. ¶ 44). The Fourth Amendment provides that, "The right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause." U.S. Const. amend IV. The Fourth Amendment thus is "a vital safeguard of the right of the citizen to be free from unreasonable governmental intrusions into any area in which he has a reasonable expectation of privacy." Winston v. Lee, 470 U.S. 753, 767 (1985) (emphasis added).

Blood testing unquestionably constitutes a search under the Fourth Amendment because it is an invasive procedure. Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 624-26 (1989). Furthermore, "[b]ecause [Mid-Hudson] is a state hospital, the members of its staff are government actors, subject to the strictures of the Fourth Amendment." Ferguson v. City of Charleston, 532 U.S. 67, 76 (2001). To establish a Fourth Amendment violation, Makas nevertheless must establish that the searches to which he objects were unreasonable. See Skinner, 489 U.S. at 619.

Warrantless searches, such as the ones to which Makas objects, are "per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967) (Harlan, J., concurring). One such exception applies when an important governmental interest or immediate hazard gives rise to a "special need." See Ferguson, 532 U.S. at 75 n.7. In such circumstances, the Supreme Court has "tolerated suspension of the Fourth Amendment's warrant or probable-cause requirement in part because there [is] no law enforcement purpose behind the searches . . . , and there [i]s little, if any, entanglement with law enforcement." Id. at 79 n.15.

Ferguson, like this case, arose in a hospital setting. There, a hospital had entered into an agreement with local law enforcement officials to turn over the results of urine drug screens of pregnant women or those who had given birth if they tested positive for cocaine. Id. at 70-71. Pursuant to the agreed protocol, the women were given an opportunity to avoid arrest if they participated in substance abuse treatment. Id. at 72. While the "ultimate goal" of the program was to wean the women from drugs, the Supreme Court noted that local prosecutors and police were "extensively involved in the day-to-day administration" of the program, had access to the patients' medical files, and "took pains to coordinate the timing and circumstances of the arrests with [hospital] staff." Id. at 81-82. Accordingly, because "the immediate objective of the searches was to generate evidence for law enforcement purposes," the Court held that the defendants' actions did not "fit within the closely guarded category of special needs." Id. at 83-84 (emphasis and footnotes omitted).

By comparison, courts have found the special needs exception applicable in a hospital setting when there is no evidence that the medical tests are intended to serve a law enforcement purpose. For example, in Anthony v. City of New York, 339 F.3d 129 (2d Cir. 2003), the Second Circuit found that mandatory blood and urine tests undertaken by a state hospital to facilitate diagnosis, treatment, and patient health were constitutionally permissible. In that case, the police detained Anthony and transported her to a state psychiatric hospital. Id. at 133-34. After a psychiatric examination at the hospital, which resulted in a finding that Anthony was "fearful, anxious, delusional, and paranoid," hospital staff drew blood and collected a urine sample from her before providing her with anti-psychotic medication. Id. at 134. Rejecting Anthony's Section 1983 claim, Judge Sotomayor observed that, even though the hospital examined Anthony's blood and urine in order to determine whether she was using drugs or had a physiological imbalance, there was no law enforcement purpose behind the tests. Id. at 142. The tests in Anthony thus fell within the "special needs" exception to the Fourth Amendment's warrant requirement because they were undertaken to help the hospital treat Anthony, rather than to incriminate or otherwise harm her. Id. at 142; see also Roe v. Marcotte, 193 F.3d 72, 78 (2d Cir. 1999) (warrantless collection of blood samples from convicted sex offenders in prisons approved under the "special needs" exception because significant governmental interest in maintaining institutional security, public safety, and order outweighed minimal intrusions on individual privacy).

The applicability of the special needs exception therefore turns on the principal use for which the blood tests in this case were intended. If the purpose was to foster institutional or inmate health or safety, the tests pass constitutional muster. On the other hand, if the purpose was to bolster a criminal prosecution, a warrant would be required before obtaining a sample.

In his papers, Makas concedes that the purpose of many of his blood tests was to detect syphilis and hepatitis, to monitor his cholesterol and thyroid levels, and to check his liver function. (See Compl. ¶¶ 23-24, Ex. A). Such testing plainly was undertaken to ensure that Makas remained healthy while at Mid-Hudson and did not infect others, rather than to further a law enforcement purpose. There consequently was no need for the Defendants to secure a warrant or court order before drawing Makas' blood.

Makas further alleges that Mid-Hudson permitted the District Attorney and Attorney General, among others, to review his medical records, which presumably contained the results of the tests conducted on his blood. (See id. ¶ 41 n.2). He also suggests that DNA tests of his blood may have been conducted. (See id. ¶ 24). However, even if these allegations were to be accepted at face value, there is no indication that the sharing of his medical information served or was intended to serve a law enforcement purpose.

Accordingly, in the absence of any allegation or evidence that the principal purpose for testing Makas' blood was to further a criminal prosecution of him, the special needs exception applies and Makas cannot establish a violation of his Fourth Amendment rights.*fn5

2. Fifth Amendment

Liberally construed, the Complaint can also be read to allege that the Defendants have forced Makas to incriminate himself in violation of his Fifth Amendment rights. (See Compl. ¶ 41 n.2 & id. at 19.5)

The Fifth Amendment provides that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V (emphasis added). The applicability of this protection has been extended to the States pursuant to the Fourteenth Amendment. See Malloy v. Hogan, 378 U.S. 1, 8 (1964).

The privilege against self incrimination only applies, however, when the government seeks to make a criminal defendant "a 'witness' against himself." Chavez v. Martinez, 538 U.S. 760, 767 (2003). Here, it is undisputed that the prosecution of Makas was terminated following his insanity plea and commitment to Mid-Hudson. Accordingly, because there is no criminal case currently pending or contemplated against him, the Fifth Amendment privilege against self-incrimination is not implicated by the State's decision to draw and analyze samples of Makas' blood.

3. Eighth Amendment

Makas also alleges that the Defendants' blood draws, which he characterizes as stabbings, constituted a violation of the Eighth Amendment. (See Compl. at 14). That amendment makes it unlawful to impose punishment that is "cruel and unusual." U.S. Const. amend. VIII. However, this proscription does not apply "until after [the State] has secured a formal adjudication of guilt in accordance with due process of law."*fn6 Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977).

In this case, the Court can take judicial notice that Makas has not been found guilty of any crime. See Fed. R. Evid. 201. Instead, the acceptance of his plea was expressly predicated upon a finding that he was "not responsible" by reason of a mental disease or defect, and it resulted in his civil commitment rather than a jail sentence. Accordingly, the Eighth Amendment does not afford Makas any rights.

4. Fourteenth Amendment

Although the Eighth Amendment is, as a matter of law, inapplicable on the facts of this case, Makas' claims regarding the constitutionality of the Defendants' actions nevertheless may implicate his rights under the Fourteenth Amendment. See Lombardo v. Stone, No. 99 Civ. 4603 (SAS), 2001 WL 940559, at *7 n.7 (S.D.N.Y. Aug. 20, 2001). Liberally construed, the Complaint in this action can be read to assert two such claims: first, that the involuntary blood draws violated Makas' procedural and substantive due process rights; second, that the disclosure of his test results to third parties violated his right to privacy.

a. Due Process

i. Procedural Due Process

The Fourteenth Amendment provides that a state may not deprive a person of liberty or property "without due process of law." U.S. Const. amend. XIV. Consequently, in order to establish a procedural due process violation, a plaintiff first must show that he was deprived of a liberty or property interest. See Bd. of Regents v. Roth, 408 U.S. 564, 571 (1972); Finley v. Giacobbe, 79 F.3d 1285, 1296 (2d Cir. 1996). If such a deprivation occurred, the Court then must consider what process was due and whether it was provided. See Matthews v. Eldridge, 424 U.S. 319, 333-34 (1976).

There does not appear to be any legal basis for Makas' claim that he has an absolute right not to have his blood drawn by Mid-Hudson officials in the absence of a court order or his consent. To be sure, "[a]n involuntary civil commitment is a massive curtailment of liberty." Rodriguez v. City of New York, 72 F.3d 1051, 1061 (2d Cir. 1995) (internal quotation marks omitted). Moreover, New York law allows someone who is civilly committed to refuse medical treatment. See N.Y. Comp. Codes R. & Regs. tit. 14, § 527.8 (1993). There are, however, specific exceptions to this general rule, two of which apply to routine physical examinations and routine blood work. Id. § 527.8(a)(7).

In his Complaint, Makas concedes that the State had a policy of drawing blood from patients at Mid-Hudson periodically. (See Compl. Ex. F). Accordingly, he had no reasonable expectation that his blood would never be drawn without his consent. On the other hand, to the extent that the frequency of Makas' blood draws exceeded that which was dictated by OMH policy or was customary, Makas may have a claim that his blood work was non-routine and, therefore, required his consent. If so, the State arguably may have been required to afford him some level of due process before forcibly taking blood samples from him.

ii. Substantive Due Process

The Due Process Clause of the Fourteenth Amendment also embodies a substantive component "intended to prevent government officials from abusing their power, or employing it as an instrument of oppression." County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (internal quotation marks and brackets deleted). To constitute a violation of substantive due process, conduct must be so offensive that it "shocks the conscience" and violates the "decencies of civilized conduct." Id. at 846-47 (collecting cases). In an apparent effort to meet this threshold, Makas refers to instances in which his blood was drawn as "stabbings" and alleges, in conclusory fashion, that they were "egregious and shock[] the conscience." (Pl.'s Mem. in Opp'n at 22 (block capitalization omitted)). Despite these characterizations, however, the Supreme Court has recognized that blood tests "are a commonplace in these days of periodic physical examination and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no . . . trauma." Schmerber v. California, 384 U.S. 757, 771 (1966). Accordingly, even if Makas is unusually sensitive to needle pricks, as he seems to suggest, Mid-Hudson's periodic testing of his blood is not an action that is so outrageous that it shocks the conscience. Therefore, as a matter of law, Makas has failed to assert a viable substantive due process claim.*fn7

b. Right to Privacy

The Supreme Court has held the Fourteenth Amendment and other provisions of the United States Constitution and Bill of Rights give rise to a "right of personal privacy." See Roe v. Wade, 410 U.S. 113, 152 (1973). This right incorporates an individual's "interest in avoiding disclosure of [certain] personal matters." Whalen v. Roe, 429 U.S. 589, 599 (1977). The right of privacy, however, is not absolute. Id. at 602. For example, the disclosure of personal medical information to "representatives of the State having responsibility for the health of the community . . . does not automatically amount to an impermissible invasion of privacy." Id.

In his Complaint, Makas alleges that the results of his medical tests were "nonagreeingly left open (shared) with DA's[,] attorney generals, social workers, unit chiefs, guards (SHTA's) etc." (Compl. ¶ 41 n.2 (block capitalization omitted)). There is no suggestion, however, that any of his medical information has been shared with any person not employed by the State.

The defendants have three responses to Makas' privacy claim. First, they allege that the District Attorney and OMH are entitled by statute to obtain the information to which Makas objects. Specifically, they note that the District Attorney is a necessary party to the process by which the State's right to continue to retain a civilly-committed patient is periodically reviewed at a hearing. (See Def.'s Mem. at 22 (citing CPL §§ 330.20 (8)-(13), (15), (18)). They further observe that the Attorney General has a statutory duty to defend OMH, which is a state agency, pursuant to his duty to defend New York State in "all actions and proceedings in which the [S]tate is interested." N.Y. Exec. Law § 63(1) (McKinney 2006). Finally, the Defendants note that Mid-Hudson is required to maintain a record of all treatment administered to its patients pursuant to Section 33.13(a) of the New York Mental Hygiene Law. (See Defs.' Mem. at 23). They contend that there consequently can be no improper sharing of information among social workers, unit chiefs and SHTAs because these are the very individuals whose duty it is to create the required records. (Id.).

Although the District Attorney's Office is entitled to participate in retention proceedings, it by no means follows that the disclosure of information unrelated to a civilly-committed individual's mental status, such as his cholesterol or thyroid levels, is equally permissible. Similarly, the fact that the Office of the Attorney General is required to represent OMH in all actions and proceedings, including presumably retention hearings, does not establish that the Attorney General has the right to obtain the disclosure of medical information unrelated to the purpose of the hearing.

Although the dissemination of information about cholesterol or thyroid levels to officials outside OMH seems innocuous, Makas suggests that they may have also been privy to information about whether he has syphilis or hepatitis, conditions which arguably could subject him to opprobrium and which are unrelated to the issue of his eligibility to be released from a secure environment. Nonetheless, in his Complaint, Makas has failed to allege who specifically obtained or permitted others to gain improper access to such confidential medical information. In the absence of any allegations establishing the personal involvement of particular defendants, Makas cannot maintain his privacy claim. See Smith v. Masterson, No. 05 Civ. 2897 (RWS), 2006 WL 297393, at * 2 (S.D.N.Y. Oct. 17, 2006) (quoting Dove v. Fordham Univ., 56 F. Supp. 2d 330, 335 (S.D.N.Y. 1999)) ("It is well-settled that 'where the complaint names a defendant in the caption but contains no allegations indicating how the defendant violated the law or injured the plaintiff, a motion to dismiss the complaint in regard to that defendant should be granted."').

5. Conspiracy to Violate Constitutional Rights

Makas also alleges that the defendants engaged in a Section 1983 conspiracy. The elements of such a conspiracy claim are: "([a]) an agreement between two or more state actors or between a state actor and a private entity; ([b]) to act in concert to inflict an unconstitutional injury; and ([c]) an overt act done in furtherance of that goal causing damages." Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999) (citations omitted).

Here, Makas alleges that defendants Malik, Kathpalia, Judge, and Stevens "act[ed] in concert to ignore [his] requests for no blood work." (Compl. at 16). Makas also contends that they conspired to intimidate him. However, as shown above, the Defendants were entitled to require him to submit to routine blood tests. Thus, the mere fact that some of them may have worked together to ensure that Makas complied with their routine requests to draw blood does not subject them to any additional liability. See Curley v. Vill. of Suffern, 268 F.3d 65, 72 (2d Cir. 2001); Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir. 1995). His conspiracy claim therefore does not entitle him to any relief insofar as it is based on routine blood tests.

Moreover, even if the individual defendants conspired to draw blood from Makas on a non-routine basis, they nevertheless would be entitled to qualified immunity.

C. Qualified Immunity

"Under the doctrine of qualified immunity, a government official performing discretionary functions is shielded from liability for civil damages if his conduct did not violate plaintiff's clearly established rights or if it would have been objectively reasonable for the official to believe that his conduct did not violate plaintiff's rights." Mandell v. County of Suffolk, 316 F.3d 368, 385 (2d Cir. 2003). These criteria, as a practical matter, allow government officials to insulate themselves from damages for constitutional violations unless they are "plainly incompetent" or "knowingly violate the law."

To determine whether a particular right is "clearly established" at the time of an alleged constitutional violation, the court must consider whether: "(1) the law is defined with reasonable clarity; (2) the Supreme Court or the Second Circuit has recognized the right; and (3) a reasonable defendant [would] have understood from the existing law that [his] conduct was unlawful." Luna v. Pico, 356 F.3d 481, 490 (2d Cir. 2004) (brackets in original)).

Makas contends that he has an absolute federal right not to be subjected to blood draws while he is civilly committed to a state mental institution. As noted earlier, however, there is no such clearly established federal right. At best, Makas had a due process right not to give non-routine blood specimens without a prior court order or hearing. Nonetheless, State officials have an obligation to ensure the safety and well-being of mental patients entrusted to their custody. See Woe by Woe v. Cuomo, 729 F.2d 96, 102 (2d Cir. 1984) (noting that New York Mental Hygiene Law § 29.13(a) requires OMH to provide mentally ill persons with "care and treatment"). It therefore would have been objectively reasonable for such officials to believe that they had the right to test Makas' blood even if the frequency of those tests exceeded State policy. For this reason, the individual defendants are entitled to qualified immunity with respect to Makas' claims concerning the Defendants' drawing of his blood, even if, as he alleges, they conspired to take blood samples from him on a schedule which was not "routine."

As previously noted, Makas also contends that he has a federal right not to have the results of his blood tests disseminated beyond Mid-Hudson's medical staff. The Second Circuit has recognized a constitutional right to keep one's medical records confidential in limited circumstances where their disclosure might lead to social opprobrium. See, e.g., Doe v. City of New York, 15 F.3d 264, 267 (2d Cir. 1994) ("An individual revealing that she is HIV seropositive potentially exposes herself not to understanding or compassion but to discrimination and intolerance, further necessitating the extension of the right to confidentiality over such information. We therefore hold that Doe possesses a constitutional right to confidentiality . . . in his HIV status."); Powell v. Schriver, 175 F.3d 107, 112 (2d Cir. 1999) ("We now hold, as the logic of Doe requires, that individuals who are transsexuals are among those who possess a constitutional right to maintain medical confidentiality."). As the Powell court confirmed, however, "the interest in the privacy of medical information will vary with the condition." Powell, 175 F.3d at 111 (citing Doe).

The Complaint in this action contains no suggestion that Makas has tested positive for any sexually-transmitted disease. Indeed, it appears that he has not since he contends that much of the testing conducted by the Defendants was unnecessary given his abstinent lifestyle and careful washing of his hands. (See Compl. at 22). Clearly, the dissemination of test results which establish the absence of a controversial disease or condition does not carry with it the same potential for harm as the dissemination of results which establish its existence. Moreover, while a patient's cholesterol or thyroid level also constitutes personal medical information, its disclosure obviously does not carry with it the same potential for adverse effects as the disclosure of information about a sexually-transmitted disease or transsexualism.

In short, the information that Makas suggests was improperly disseminated is not comparable to that which the Second Circuit has recognized gives rise to a constitutional right of privacy. Accordingly, Makas has not established, as he must, that the Defendants distributed any of his confidential medical information in violation of his clearly established federal rights.*fn8

Moreover, even if the relatively benign information that Makas suggests may have been divulged were protected under the holdings of cases such as Doe and Powell, the individual defendants still could reasonably have concluded that such institutional concerns as the need to prevent the spread of communicable diseases and to ensure the physical well being of persons committed to OMH's custody warranted the testing that they undertook. Accordingly, the individual defendants are entitled to qualified immunity for any constitutional violations that may have occurred as a result of the information-sharing that Makas contends took place.

D. Personal Involvement

"It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir. 2001). The doctrine of respondeat superior does not suffice to establish personal liability. See Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir. 1973). Consequently, to recover damages from a supervisor based upon an alleged constitutional violation, a plaintiff must show that the supervisor either directly participated in the violation, learned of it through a report or appeal but failed to take action, created or maintained the policy or custom which gave rise to it, or was grossly negligent in the supervision of subordinates who caused the violation to occur. See Newburgh Enlarged Sch. Dist., 239 F.3d at 254 (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)).

There is no suggestion that Miraglia, a senior official of OMH, or Holanchock, the Director of Mid-Hudson, personally participated in Makas' blood draws or the alleged dissemination of his medical information. Makas does indicate, however, that he sent two letters to Miraglia and one letter to Holanchock raising concerns about the drawing of his blood. In those letters, Makas complained that his blood was being drawn forcibly without a warrant as frequently as every three months. (See Compl. Exs. A, B, D). Miraglia's response to one of those letters suggested that Makas "talk with [his] treatment team and have them arrange with the appropriate clinical staff that a more thorough explanation be provided to [him] the next time it is necessary for his blood to be drawn." (Id. Ex. E). Miraglia also expressed the hope that this recommendation would prove "helpful." (Id.). This response hardly evinces indifference on Miraglia's part. In any event, even if Miraglia and Holanchock were shown to have ignored Makas' complaints about the frequency of his blood tests, such inaction would, as a matter of law, be insufficient to establish their personal involvement. See, e.g., Pritchett v. Artuz, 99 Civ. 3957 (SAS), 2000 WL 4157, at *5 (S.D.N.Y. Jan. 3, 2000); Thomas v. Coombe, No. 95 Civ. 10342 (HB), 1998 WL 391143, at *6 (S.D.N.Y. July 13, 1998).

Moreover, none of the letters that Makas sent contains any mention of the privacy violations that he now contends occurred. Accordingly, there is nothing to indicate that Miraglia and Holanchock were aware of these alleged violations, much less ignored them. They consequently cannot be held liable on a respondeat superior theory for any breach of privacy that may have occurred.

Finally, although Makas contends that Miraglia and Holanchock wrongfully promulgated, or failed to object to, an OMH policy of periodically taking blood samples from persons committed to Mid-Hudson without securing their consent or a court order, his claim necessarily fails because neither the Constitution nor any federal statute proscribes the taking of blood for medical purposes in such circumstances. Furthermore, even if OMH policy required that a patient's blood only be drawn every three months, there is no case law establishing that the more frequent draws that Makas contends occurred in this case violated federal law. It follows that even if Miraglia and Holanchock failed to monitor the frequency with which Makas' blood was being drawn at Mid-Hudson, this would not amount to grossly negligent supervision of the other defendants entitling Makas to recover damages from them.

For these reasons, Miraglia and Holanchock are entitled to the dismissal of the Complaint as against them for lack of personal involvement.

E. Eleventh Amendment

The Defendants also argue that the Eleventh Amendment bars a suit by Makas against OMH. (See Defs.' Mem. at 18).

Under the Eleventh Amendment, a state and its agencies are generally immune from suit in federal court unless the state consents to be sued. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54-59 (1996); Papasan v. Allain, 478 U.S. 265, 276 (1986); see also De La Nueces v. United States, 780 F. Supp. 216, 217 (S.D.N.Y. 1992). There are two exceptions to this general rule: an explicit and unequivocal waiver of immunity by a state or a similarly clear abrogation of the immunity by Congress. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Hallett v. N.Y.S. Dep't of Corr. Servs., 109 F. Supp. 2d 190, 197 (S.D.N.Y. 2000); Burrell v. City Univ. of N.Y., 995 F. Supp. 398, 410-11 (S.D.N.Y. 1998).

In this case, it is clear that OMH is a State agency. See N.Y. Mental Hyg. Law §§ 7.01, 7.07 (McKinney 2002). OMH thus is entitled to assert New York State's immunity under the Eleventh Amendment because "New York has not waived its immunity from suit, either generally or specifically, for OMH," Vallen v. Mid-Hudson Forensic Office of Mental Health, No. 02 Civ. 5666 (PKC), 2004 WL 1948756, at *3 (S.D.N.Y. Sept. 2, 2004), and because Congress has not abrogated the states' Eleventh Amendment immunity by creating a federal cause of action under Section 1983, Quern v. Jordan, 440 U.S. 332, 342 (1979).

Moreover, Eleventh Amendment immunity extends to state officials if the relief to be granted "would bind the state or where the state is the real party in interest."

Melo v. Combes, No. 97 Civ. 204 (JGK), 1998 WL 67667, at *3 (S.D.N.Y. Feb. 18, 1998) (quoting Russell v. Dunston, 896 F.2d 664, 667 (2d Cir. 1990)). When an official is sued in his official capacity, rather than his personal capacity, the state is the real party in interest. Id. (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)). A plaintiff therefore may not recover damages in federal court from a state official acting in his official capacity. See, e.g., Spencer v. Doe, 139 F.3d 107, 111 (2d Cir. 1998) (citing Graham, 473 U.S. at 169).

In this case, the Complaint does not indicate whether the individual defendants are sued in their personal or official capacities. To the extent that they are named in their official capacity, however, Makas' claims against them would be barred by the Eleventh Amendment.

F. State Law Claims

In addition to his federal claims, Makas asserts two state law claims seeking damages for intentional infliction of emotional distress and negligence. In the absence of any colorable federal claim, this Court should decline to exercise jurisdiction over these pendent state law claims. See Klein & Co. Futures, Inc. v. Bd. of Trade of City of N.Y., 464 F.3d 255, 262 (2d Cir. 2006) ("It is well settled that where . . . the federal claims are eliminated in the early stages of litigation, courts should generally decline to exercise pendent jurisdiction over remaining state law claims."); see also 28 U.S.C. § 1367(c)(3) ("The district courts may decline to exercise supplemental jurisdiction over a claim . . . if -- the district court has dismissed all claims over which it had original jurisdiction.").

IV. Conclusion

For the foregoing reasons, the Court should grant the Defendants' motion to dismiss Makas' Complaint. (Docket No. 28).

V. Notice of Procedure for Filing of Objections to this Report and Recommendation

The parties are hereby directed that if they have any objections to this Report and Recommendation, they must, within ten (10) days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable Deborah A. Batts, United States District Judge, and to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, NY 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Batts. Any failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72(b).

FRANK MAAS United States Magistrate Judge

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