The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge
REPORT-RECOMMENDATION and ORDER
Pro se Plaintiff Joseph Bloomfield brings this civil rights action, pursuant to 42 U.S.C. § 1983, asserting Defendants violated his civil rights when they involuntarily confined him in a mental institution upon the cessation of his state incarceration sentence. Dkt. No. 10, Am. Compl. Currently pending before this Court is Defendants' Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 28. Despite being granted multiple extensions of time, Plaintiff has failed to oppose the Motion. See Text Notice, dated Mar. 23, 2009; Dkt. No. 31, Order, dated May 14, 2009. For the reasons that follow, it is recommended that Defendants' Motion be granted in part and denied in part.
Plaintiff initiated this action, pro se, on June 12, 2008, with the filing of a civil rights Complaint; the sole Defendant named in that pleading was former-Governor George E. Pataki. Dkt. No. 1, Compl. In accordance with 28 U.S.C. § 1915A,*fn2 this Court performed an initial review of the Complaint and found it to be inadequate due to Bloomfield's failure to allege any personal involvement on behalf of former-Governor Pataki, thus, dismissal of the action was warranted. Dkt. No. 5. In a Report-Recommendation and Order, this Court recommended that in light of Plaintiff's pro se status, prior to dismissing the action outright, Bloomfield should be given an opportunity to amend his Complaint. Id. That recommendation was adopted by the Honorable Gary L. Sharpe, United States District Judge, and Plaintiff was given an opportunity to amend his pleading. Dkt. No. 9. Thereafter, on October 28, 2008, Plaintiff filed his Amended Complaint, dropping Pataki from the action and naming eight other Defendants in his stead. Dkt. No. 10, Am. Compl. After reviewing the amended pleading, this Court directed that Summonses be issued and, because of his in forma pauperis status, the Marshals were to effect service on Plaintiff's behalf. Dkt. No. 12.
On February 27, 2009, after all Defendants had been served with process, Defendants filed a Motion to Dismiss in lieu of an answer. Dkt. No. 28. In accordance with this District's Local Rules of Practice, a response to that Motion was due by March 16, 2009. On March 4, 2009, the Court received a Notice from Plaintiff indicating a change in his address. Dkt. No. 29. In light of this updated address, the Court sua sponte rescheduled Plaintiff's response deadline to April 13, 2009, and Defendants re-served their Motion to Dismiss on Plaintiff at his new civilian address.
Dkt. No. 30. By May 14, 2009, the Court still had not received a response from Plaintiff. Once again, we sua sponte reset Plaintiff's response deadline, this time to June 15, 2009. Dkt. No. 31. To date, the Court has not received any opposition from Plaintiff; in fact, Plaintiff has not communicated with the Court since March 4, 2009, when he filed his Notice of Change of Address.*fn3
B. Allegations in the Amended Complaint
In accordance with the standard of review utilized in assessing a motion to dismiss, the following facts asserted in the Amended Complaint are accepted as true. See infra Part II.A.
The events giving rise to this civil action occurred at Upstate Correctional Facility ("Upstate") and Central New York Psychiatric Center ("Central"). Am. Compl. at ¶ 2. At all times relevant to this case, Bloomfield was an inmate in the custody of the New York State Department of Correctional Services ("DOCS") and then an inpatient in the custody of the New York State Office of Mental Health ("OMH"). Id. at ¶ 3. According to the DOCS website, Bloomfield was, at the time period relevant in the Amended Complaint, serving an indeterminate sentence of incarceration for convictions of Sodomy in the First Degree and Attempted Robbery in the Second Degree. See NY DOCS Inmate Locator Website, available at http://nysdocslookup.docs.state.ny.us (information for Inmate Joseph Bloomfield, DIN 99-A-4562) (last visited Sept. 15, 2009).*fn4
On July 28, 2006, less than a week before Plaintiff's scheduled release from Upstate, Bloomfield met with Defendants Bezalel Wurzberger, M.D., and Jose Gonzalez, M.D., via video conference. Am. Compl. at ¶ 14. Both of these Defendants were, at that time, psychiatrists employed by OMH and were assigned to conduct examinations at Upstate. Id. at ¶¶ 4-5. The meeting was brief, lasting for only a "few moments." Id. at ¶ 14. During the meeting, Bloomfield was advised that he fit the criteria for civil commitment under "Sex Offender Mental Hygien[e] Law ["MHL"] Section 9.27" and was to be involuntarily committed on August 3, 2006, the date on which he was set to be released from DOCS custody. Id. at ¶ 15. Also on July 28, 2006, the two doctors each completed a "Certificate of Examining Physician" justifying the involuntary commitment.*fn5
According to Plaintiff, Defendant Wurzberger's Certificate of Examining Physician states that it would be "prudent to admit [Bloomfield] to inpatient treatment in order to prevent harm to others, before his return to the community," while Defendant Gonzalez's Certificate of Examining
Physician states that Bloomfield "is considered a danger to others based on his repeated sexual offenses . . . indicating high likelihood to re-offend." Id. at ¶¶ 16-18.
On August 3, 2006, pursuant to MHL § 9.27, Defendant Robert Woods, Superintendent of Upstate, facilitated Bloomfield's transfer to Central. Id. at ¶ 19. Upon arrival at Central, Defendant Sara Nelson, M.D., a staff psychiatrist employed by OMH and assigned to Central, confirmed that Plaintiff was admitted to Central as an "involuntary-status" patient pursuant to MHL § 9.27. Id. at ¶¶ 6 & 21. Then, in accordance with a policy sanctioned by Defendant Donald Sawyer, Ph.D., Acting Executive Director of Central, Plaintiff was subjected to a "strip-frisk search" of his clothes and body cavities.*fn6 Id. at ¶¶ 7 & 20. During his stay at Central, Plaintiff was thrice more subjected to this type of search following visits from relatives on August 12, September 9, and October 15, 2006. Id. at ¶¶ 23-25.
While at Central, Plaintiff was also subjected to various threats. First, on August 3, 2006, Defendant Jeffrey Nowicki, Treatment Team Leader employed by OMH and assigned to Central, approached Plaintiff and stated, "I don't care if you stay here forever[,] I am team leader and I will do whatever it takes to keep people like you off the streets." Id. at ¶¶ 9 & 22. Then, on November 16, 2006, Defendant Nikhill Nihalani, a psychiatrist employed by OMH and assigned to Central, threatened to persuade Plaintiff's parole officer to violate him if he did not consent to a urine test. Id. at ¶¶ 10 & 26. Defendant Nihalani then ordered Bloomfield to submit a urine sample while in Nihalani's presence. Id. Also, Defendant Shakunthala Mudigonda, a social worker employed by OMH and assigned to Central, falsified statements in Bloomfield's "Core History" and "Treatment Plan." Id. at ¶¶ 8 & 27.
Thereafter, on September 28, 2006, Defendant Sawyer applied to the Supreme Court, Oneida County, for a "Court Authorization to Retain a Patient." Id. at ¶ 28.
A. Motion to Dismiss Standard of Review
On a motion to dismiss, the allegations of the complaint must be accepted as true. See Cruz v. Beto, 405 U.S. 319, 322 (1972). The trial court's function "is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof."
Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). "[T]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
"Generally, in determining a 12(b)(6) motion, the court may only consider those matters alleged in the complaint, documents attached to the complaint, and matters to which the court may take judicial notice." Spence v. Senkowski, 1997 WL 394667, at *2 (N.D.N.Y. July 3, 1997) (citing Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir. 1991)). Moreover, "even if not attached or incorporated by reference, a document 'upon which [the complaint] solely relies and which is integral to the complaint' may be considered by the court in ruling on such a motion." Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991) (emphasis added).
The court is bound to give the plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. See Retail Clerks Intern. Ass'n, Local 1625, AFL-CIO v. Schermerhorn, 373 U.S. 746, 753 n. 6 (1963); see also Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir. 2008). Nevertheless, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009). Therefore, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Id. (citation omitted).
A motion to dismiss pursuant to Rule 12(b)(6) may not be granted so long as the plaintiff's complaint includes "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, __ U.S. __ 129 S.Ct. at 1950 (citing Twombly). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, __ U.S. __ 129 S.Ct. at 1949. This plausibility standard "is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. Thus, in spite of the deference the court is bound to give to the plaintiff's allegations, it is not proper for the court to assume that "the [plaintiff] can prove facts which [he or she] has not alleged, or that the defendants have violated the . . . laws in ways that have not been alleged." Assoc. Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). The process of determining whether a plaintiff has "nudged [his] claims . . . across the line from conceivable to plausible," entails a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Ashcroft v. Iqbal, __ U.S. __ 129 S.Ct. at 1950-51.
With this standard in tow, we consider the plausibility of Plaintiff's Amended Complaint.
In liberally construing the Amended Complaint, we conclude that Bloomfield attempts to raise the following claims against the following Defendants: 1) claims of threats and/or falsification of records against Defendants Nowicki, Nihalani, and Mudigonda; and 2) Due Process violations, stemming from his involuntary commitment to Central pursuant to Article 9 of the Mental Hygiene Law, against Defendants Wurzberger, Gonzalez, Wood, Nelson, and Sawyer. Am. Compl. at ¶¶ 29-36.*fn7
1. Threats and Falsification of Records
Bloomfield asserts that during his stay at Central, Defendants Nowicki and Nihalani threatened him, with the latter compelling him to submit to a urine test, and Defendant Mudigonda falsified records. Am. Compl. at ¶¶ 22, 26, & 27. Assuming the veracity of these facts, none of these claims rise to the level of a constitutional violation.
A claim brought under § 1983 is "not designed to rectify harassment or verbal abuse." Gill v. Hoadley, 261 F. Supp. 2d 113, 129 (N.D.N.Y. 2003) (citing Alnutt v. Cleary, 913 F. Supp. 160, 165-66 (W.D.N.Y. 1996)); Aziz Zarif Shabazz v. Picco, 994 F. Supp. 460, 474 (S.D.N.Y. 1998) (noting that, ordinarily, a claim for verbal harassment is not actionable under § 1983). Moreover, "verbal harassment or profanity alone, unaccompanied by an injury no matter how inappropriate, unprofessional, or reprehensible it might seem, does not constitute the violation of any federally protected right and therefore is not actionable under 42 U.S.C. § 1983." Aziz Zarif Shabazz, 994 F. Supp. at 474 (cited in Garrett v. Reynolds, 2003 WL 22299359, at * 4 (N.D.N.Y. Oct. 7, 2003) & Moncrieffe v. Witbeck, 2000 WL 949457, at *3 (N.D.N.Y. June 29, 2000)). Therefore, Plaintiff has failed to state a claim for relief against Defendants Nowicki and Nihalani as their purported threats do not rise to the level of a constitutional violation.
As for the falsification of records claim, it is unclear in what manner these records were falsified and how such falsity harmed Plaintiff. The filing of a false entry in medical records, without more, does not constitute a constitutional violation. Benitez v. Locastro, 2008 WL 4767439, at *11 (N.D.N.Y. Oct. 29, 2008) (allegation that defendants falsified plaintiff's medical records did not state a valid § 1983 claim); Diaz v. Goord, 2006 U.S. Dist. LEXIS 14309, at *20 (W.D.N.Y. Mar. 20, 2006) (allegation of false medical entries did not state a valid claim). Thus, Plaintiff's sole claim against Defendant Mudigonda for falsifying his records at Central also does not rise to the level of a constitutional violation.
Accordingly, Plaintiff's Amended Complaint fails to state a plausible cause of action against Defendants Nowicki, Nihalani, and Mudigonda, and the Defendants' Motion to Dismiss should be granted as to these Defendants.
Next, we address Plaintiff's claims of violations of his due process in connection with his involuntary admission into psychiatric treatment at Central. To put this issue into perspective, some background information is necessary with regard to New York's Mental Hygiene Law.
Article 9 of the New York Mental Hygiene Law provides for the involuntary psychiatric commitment of "any person alleged to be mentally ill and in need of involuntary care and treatment." N.Y. MENTAL HYG. LAW § 9.27. Such admission may only be accomplished "upon the certificates of two examining physicians, accompanied by an application for the admission of such person." Id. at § 9.27(a). The application for admission must be made by someone with personal knowledge of the individual, and shall "contain a statement of the facts upon which the allegation of mental illness and need for care and treatment are based." Id. at § 9.27(b) & (c). Upon arrival to the facility, a doctor must complete a confirmatory examination of the ...