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Coward v. Gilroy

April 24, 2007

ARTHUR AND GAIL COWARD PLAINTIFFS,
v.
MICHAEL GILROY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS FAMILY CARE COORDINATOR FOR THE NEW YORK STATE OFFICE OF MENTAL RETARDATION AND DEVELOPMENT DISABILITIES, ET. AL. DEFENDANTS.



The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge

DECISION and ORDER

Plaintiffs Arthur and Gail Coward commenced the instant action pursuant to 42 U.S.C. § 1983 arising out of the revocation of their operating certificate to provide assisted living for mentally retarded adults. Presently before the Court is Defendants' motion for summary judgment pursuant to FED. R. CIV. P. 56 seeking dismissal of Plaintiffs' Complaint.

I. FACTS

The Cowards were family care home operators who participated in the New York State Office of Mental Retardation and Developmental Disabilities ("OMRDD") program to provide assisted living for mentally disabled adults. In the summer of 2004, three mentally disabled adults, known as "consumers," resided with the Cowards.

In August 2004, Gail Coward and Defendant Deborah Curry, an OMRDD nurse, differed over what treatment one of the consumers, PV, should receive for breast cancer. At a consultation, PV's doctor explained the pros and cons of a mastectomy versus a lumpectomy. Curry advocated for a mastectomy while Gail Coward believed that a lumpectomy was the best course of action. PV's father was informed of the doctor's recommendation and a second consultation was arranged. This second consultation was with a doctor in the same office as the first. The Cowards voiced their concerns over obtaining a consultation with a doctor in the same office as the first. As a result, an appointment was arranged with a doctor in a different office. At the second consultation on August 30, 2004, Gail Coward asserted that "no ones [sic] going to hack and slash her [PV] because she's mentally retarded." Pl Ex. B, Casey's Notes, at 6. After this consultation, Karen Casey, PV's OMRDD case worker, visited the Cowards at their home regarding PV's upcoming surgery. Gail Coward again voiced her concern about a mastectomy.

PV's father decided that PV should have a lumpectomy. Caseworker Casey's notes and Nurse Curry's deposition testimony indicate that PV's father's decision was made on the Cowards' recommendation. Pl. Ex. W, Curry Testimony, at 78. The surgery was originally scheduled for September 7, 2004, but rescheduled for September 21, 2004. Caseworker Casey's notes for September 3, 2004 indicate the date change occurred because September 6, 2004 was a holiday and pre-operation work was necessary the day before the surgery. Pl. Ex. B, Casey Notes, at 9. The Cowards contest this entry and believe that it was inserted after September 9, 2007.

On September 21, 2004, PV underwent a lumpectomy. During the lumpectomy, PV's doctors concluded that a mastectomy was required due to the spread of PV's cancer. The doctors, therefore, performed a mastectomy.

On September 7, 2004, one of the Coward's other consumers, KC, called 911 from the Broome-Tioga Association for Retarded Citizens ("ARC") Center. During this 911 telephone call, KC complained that Gail Coward had subjected him to psychological abuse. Quain Decl., at ¶ 4. These statements included "I've been threatened..."; "They cursing me and threatening me last night;" and "She [Gail Coward] said, she don't want to take care of my black ass, cause I'm black and I'm this and that and the other and she threatened me." Def. Ex. A, Quain Decl., Transcript of KC's 911 call, at 1. The ARC staff reported this call to Nurse Curry. Nurse Curry informed her supervisor, Defendant Joseph Mahon. The Cowards contend that Curry or the ARC should have contacted them first about the call. According to KC's psychiatrist, KC suffers from schizoaffective disorder and mental retardation and that his statements and actions are not always based on reality. See Pl. Ex. A, Papastrat Aff., at ¶ 32-35.

Shortly after the call, Defendant Patricia McDonnell, Director of the Broome Developmental Disabilities Service Office ("Broome DDSO"), started an investigation into whether to revoke the Cowards's operating certificate. McDonnell temporarily suspended their license until the end of the investigation. McDonnell Decl., ¶ 8. Defendant Teresa Quain carried out the investigation on behalf of OMRDD. The three consumers in the Cowards' home were temporarily removed while the investigation was carried out. McDonnell Decl., ¶ 13.

In an October 6, 2004 administrative hearing, the Cowards challenged the temporary removal action of the OMRDD. An independent hearing officer found the temporary license suspension proper. Id. at ¶ 14.

Thereafter, McDonnell commenced proceedings to revoke Plaintiffs' license. The stated basis for the revocation was (1) KC's 911 call; (2) corroboration of the allegations by another consumer; (3) Arthur Coward giving a psychotropic medication to a consumer without first notifying Broome DDSO personnel as required; (4) PV's father's corroboration of an allegation of physical abuse by the Cowards' daughter and failure of the Cowards to report the incident; and (5) the Cowards' refusal to interview a second time with the investigator in violation of their obligation under 14 NYCRR § 687.8(c). McDonnell Decl., at ¶ 15; see also Quain Decl., Def. Ex. C.

On November 4, 2004, OMRDD notified the Cowards and their counsel of OMRDD's intent to revoke the operating license. Plaintiffs were advised that they had 30 days to request a hearing to oppose this decision. The Cowards did not timely request a hearing. On December 15, 2004, McDonnell issued a decision revoking the Cowards's operating certificate.

Plaintiffs then filed this action pursuant to 42 U.S.C. §1983 asserting that OMRDD's investigation was pursued in retaliation for the exercise of their First Amendment rights concerning PV's medical treatment. Second Amend. Compl., ¶ 63.*fn1 Defendants now move for summary ...


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