The opinion of the court was delivered by: Frank Maas, United States Magistrate Judge.
REPORT AND RECOMMENDATION
In this case, pro se plaintiff Jason Coleman ("Coleman"), who has been diagnosed as a paranoid schizophrenic, challenges the constitutionality of his placement in a program of assisted outpatient treatment ("AOT") pursuant to a court order issued under Section 9.60 of the New York Mental Hygiene Law ("Section 9.60"), more commonly known as "Kendra's Law." Coleman also contends that he experienced harmful side effects from the antipsychotic medications the court order required him to take. He seeks to recover a total of $245 million in damages from seven defendants: the City of New York ("City"), the Food and Drug Administration ("FDA"), Eli Lilly and Company ("Lilly"), Ortho-McNeil-Janssen Pharmaceuticals, Inc. ("Ortho"),*fn1 Saint Luke's Hospital ("St. Luke's"), Bellevue Hospital Center ("Bellevue"), and the Mental Hygiene Part ("MHP") of the New York State Supreme Court.*fn2 (See Docket No. 1 (Compl. ¶¶ IV-V & Attach. ¶¶ 3(5), 5)).
The City, Bellevue, and Lilly each have moved to dismiss Coleman's complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Docket Nos. 14, 36, 42). Additionally, the FDA has moved to dismiss the complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), and Ortho has moved for judgment on the pleadings pursuant to Rule 12(c). (Docket Nos. 39, 50). Finally, Coleman seeks reconsideration of this Court's prior denial of his motion for a default judgment against MHP and Bellevue. (Docket No. 48). (St. Luke's has not filed any motion.)
For the reasons set forth below, I recommend that the motions filed by the defendants be granted in part and denied in part, and that Coleman's motion for reconsideration be denied. Additionally, because this disposition means that only state law claims will remain in this suit, I recommend that those claims be dismissed without prejudice.
In 1999, the New York State legislature enacted Section 9.60 following the tragic death of Kendra Webdale, who was pushed in front of a subway train by a man diagnosed with paranoid schizophrenia who had failed to take his medications. See N.Y.S. Senate Mem. in Supp. of Kendra's Law, reproduced in 1999 N.Y. Sess. Laws 1822, 1825 (McKinney); In re K.L., 1 N.Y.3d 362, 366 (2004). The legislature subsequently extended the statute, with certain modifications, for five additional years past its original June 30, 2005 sunset date. See 2005 N.Y. Sess. Laws 137, 158 (McKinney). Section 9.60 authorizes the New York courts to require that a patient "self-administer psychotropic drugs or accept the administration of such drugs by authorized personnel." N.Y. Mental Health Law ("MHL") § 9.60(j)(4). This outpatient program has a number of components, including case management or case coordination services, medication, substance abuse counseling and testing, and therapy. See id. § 9.60(a)(1).
For a court to order AOT, an eligible petitioner -- who may be a family member, director of a hospital where the patient is hospitalized, parole officer, social worker, psychologist, psychiatrist, or county social services officer -- must show by clear and convincing evidence that seven statutory criteria have been met. Id. § 9.60(e)(1), (j)(3). These criteria are that the individual:
* is eighteen years of age or older;
* is suffering from a mental illness;
* is unlikely to survive safely in the community without supervision;
* has a history of noncompliance with treatment for mental illness that prior to the filing of the petition has: -- been a significant factor in necessitating hospitalization at least twice within the last thirty-six months, or -- resulted within the last forty-eight months in one or more acts of serious violent behavior toward himself or others, or threats of, or attempts at, serious physical harm to himself or others;
* is, as a result of mental illness, unlikely to participate voluntarily in outpatient treatment that would enable him to live safely in the community;
* is in need of AOT to prevent a relapse or deterioration that would be likely to result in serious harm to himself or others; and
* is likely to benefit from AOT.
Id. § 9.60(c). The petition also must include an affirmation from a physician (other than the petitioner) that establishes that the physician has examined the patient and recommends AOT, or has not been able to examine him but has reason to suspect that he meets the criteria for it to be imposed. Id. § 9.60(e)(3). If the patient refuses to consent to an examination by a physician and the court finds reasonable cause to believe that the allegations in the petition are true, the court may order law enforcement officials to take him into custody and transport him to a hospital where he may be held for a maximum of twenty-four hours for an examination. Id. § 9.60(h)(3).
Absent good cause shown, a hearing must be held within three days of the state court's receipt of the petition. Id. § 9.60(h)(1). The individual has the right to be represented at the hearing and all other stages of the proceeding by the New York Mental Hygiene Legal Service*fn3 or private counsel. Id. § 9.60(g). At the hearing, a physician who has personally examined the subject of the hearing must testify in person. Id. § 9.60(h)(2). During that testimony, the physician must identify the facts supporting the allegation that the patient meets each of the criteria for AOT and that such treatment is "the least restrictive alternative." Id. § 9.60(h)(4). The physician also must detail the recommended program of AOT and the rationale for that treatment. Id. The physician must further "describe the types or classes of medication which should be authorized, . . . describe the beneficial and detrimental physical and mental effects of such medication, and . . . recommend whether such medication should be self-administered or administered by authorized personnel." Id. Section 9.60 also permits the patient to present evidence, call witnesses, and cross-examine adverse witnesses. Id. § 9.60(h)(5).
Assuming that an individual meets the statutory criteria, the court's ability to order AOT is further contingent upon the submission of a written treatment plan developed by an appointed physician in consultation with the patient, the patient's treating physician, and, upon the patient's request, a significant other, such as a close friend or relative. Id. § 9.60(i)(1)-(2).
The period of any initial AOT order may not exceed six months. Id. § 9.60(j)(2). Thereafter, renewal of the AOT order may be sought for periods of up to one year. Id. § 9.60(k). An AOT order issued by the court may be reviewed in the same manner as an order directing that a person be involuntarily detained in a mental health facility. Id. § 9.60(m). Thus, the patient (or a relative or friend acting on his behalf) may seek review within thirty days, in which event a justice other than the one entering the AOT order must "cause a jury to be summoned." Id. § 9.35. Unless waived, the jury must try the question of the patient's mental illness (and presumably the need for AOT). Id.
Finally, when a physician determines that a patient has failed or refused to comply with AOT despite efforts to induce compliance, and that the patient may require involuntary inpatient treatment, he may ask the director of the hospital providing the AOT, or the director of community services of a local governmental unit, to direct that the patient be transported to a hospital and held for up to seventy-two hours to evaluate whether the patient should be committed as an inpatient. Id. § 9.60(n). Police officers also may be directed to take the patient to an appropriate hospital for evaluation. Id.
Significantly, Section 9.60 provides that the "[f]ailure to comply with an order of assisted outpatient treatment shall not be grounds for involuntary civil commitment or a finding of contempt of court." Id. Thus, a physician cannot commit a patient merely because he has failed to comply with AOT. The physician may, however, consider a patient's refusal to take required medications or comply with alcohol or drug testing, or the failure of such tests, in determining whether further examination is necessary. Id.
B. Coleman's Psychiatric History and Treatment*fn4
Coleman was diagnosed with paranoid schizophrenia in late 2004. (See Compl. ¶¶ III(A)-(B); Decl. of Ass't Corp. Counsel Jacqueline Hui, dated Apr. 16, 2009 ("Hui Decl. I"), Ex. A; Affirm. of Scott Soloway, M.D., dated July 26, 2006, ¶¶ 4, 7). As a consequence of his failure to comply with his treatment, he was hospitalized at St. Luke's from October 4 to 27, 2004, July 31 to August 23, 2005, and May 3 to June 1, 2006. (Id. ¶ 6).
On August 16, 2006, the director of the AOT program in Manhattan successfully petitioned the MHP for an order requiring Coleman to participate in AOT for six months. (See Hui Decl. I Ex. A). The petition was based on Coleman's history of paranoid schizophrenia and hospitalizations for treatment noncompliance. (Id.). Pursuant to the order, Coleman was required to participate in AOT at Bellevue, which is part of the New York City Health and Hospitals Corporation. (See Compl. ¶ III(C); Compl. Attach. ¶ 3(1); Docket No. 31 (Decl. of Jacqueline Hui, Esq., dated June 2, 2009 ("Hui Decl. II"), ¶ 4)).
On February 13, 2007, based on the AOT director's renewed petition, the MHP ordered Coleman to participate in AOT for an additional six months. (Hui Decl. I Ex. B). The MHP issued additional orders requiring Coleman to participate in AOT for six-month intervals on August 14, 2007, February 8, 2008, and August 5, 2008. (Id. Exs. C-E).
On February 16, 2009, Coleman "graduated" from the AOT program at Bellevue because of his compliance with his treatment plan. (Id. Ex. F). Despite the fact that he no longer is required to participate in AOT, Coleman has brought this action in an effort to recover money damages. (Compl. ¶ V).
In his complaint, Coleman contends that it is his right "as a U.S. citizen not to take meds if he doesn't want to." (Id. Attach. ¶ 3(1)). Coleman asserts that he nevertheless was "forced to take medication and attend a program by [MHP]" though he had not "broken any laws [or] done anything to [him]self or anyone else." (Id. ¶ III(C)). He complains that the medication caused him to develop a heart problem and nausea and made him feel worse, not better. (Id. ¶¶ III(C), IV).
Coleman further contends that the MHP violated his civil rights and the "Patient Bill of Rights"*fn5 by directing that he take medication and attend a program without affording him a jury trial, although he was neither incapacitated nor subject to a guardianship. (Compl. Attach. ¶ 3(1)). Coleman alleges that he also was not permitted to see a health care provider other than the one appointed by MHP. (Id.).
Coleman alleges that the FDA acted negligently by permitting Ortho and Lilly to "put harmful medication on [the] market." (Id. at ¶ 3(2)). He similarly contends that these medications, which are intended to help people with mental illness, "only make . . . things worse (Alzheimer's Disease etc.)." (Id.). According to Coleman, the FDA "should be paying attention to all medication." (Id.).
With respect to Ortho, the manufacturer of Haldol and Risperdal, two of the antipsychotic medications that Coleman's physician at St. Luke's allegedly prescribed, Coleman maintains that "[t]he medication has too many side effects," including nausea, heart failure, Alzheimer's Disease, and "decreased sexual ability." (Compl. ¶ V & Attach. ¶ 3(3)). He also notes that women who are using the medication allegedly cannot breast feed. (Id.). For these reasons, he opines that the medications "do more harm than good" and "shouldn't even be on the market." (Id.).
Coleman similarly claims that Lilly was negligent because its antipsychotic medication, Zyprexa, has side effects comparable to those associated with Risperdal and Haldol. (Compl. Attach. ¶ 3(4)). Coleman notes that he is further "concerned" that "[p]eople are being forced to take these meds [which] are not working as well as they should." (Id.).
Coleman also alleges that he has "not been the same" since he began receiving treatment at St. Luke's in 2004, and that he has experienced "problems vomiting, concentrating,[and] sleeping," hears "voices occasionally in his head," and has "heart problems."*fn6 (Id. ¶ 3(5)).
Finally, Coleman asserts that if he failed to attend the AOT program or take his medications, he would be arrested, "no matter where he is or what he is doing," and taken to see a psychiatrist. (Id. Attach. ¶ 3(6&7)). He further complains that in such ...