The opinion of the court was delivered by: Frank Maas, Magistrate Judge
REPORT AND RECOMMENDATION TO THE HONORABLE DEBORAH A. BATTS
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.
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)).
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 ...