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Derrick v. the State of New York; Office of Mental Health

August 11, 2010

DERRICK BROOKS, PLAINTIFF,
v.
THE STATE OF NEW YORK; OFFICE OF MENTAL HEALTH, NEW YORK STATE; MICHAEL HOGAN, COMMISSIONER, OMH; CNY PSYCHIATRIC CENTER; DONALD SAWYER, EXECUTIVE DIRECTOR, CNYPC; DR. TERRI MAXYMILLIAN, DIRECTOR SOTP, CNYPC; R CHARMINE BILL, TREATMENT TEAM LEADER WARD 304; JEFF NOWICKI, CHIEF MENTAL HEALTH TRM, SERV; LINDA KOVICH, RN, TREATMENT TEAM LEADER, DEFENDANTS.



The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge

GLS/RFT

REPORT-RECOMMENDATION and ORDER

Pro se Plaintiff Derrick Brooks brings this civil rights action, pursuant to 42 U.S.C. § 1983, alleging that his constitutional rights were violated when he was strip-searched at the Central New York Psychiatric Center ("CNYPC"), where he currently resides. Dkt. No. 1, Compl. Presently before the Court is Defendants' Motion to Dismiss the Complaint pursuant to FED. R. CIV. P.12(b)(6). Dkt. Nos. 20-21. Plaintiff opposes the Motion. Dkt. No. 23. For the reasons that follow, it is recommended that Defendants' Motion be granted in part and denied in part.

I. BACKGROUND

In accordance with the applicable standard to be applied when considering a motion to dismiss under FED. R. CIV. P. 12(b)(6), we accept the factual allegations raised in the Complaint as true for the purposes of addressing this Motion. See infra Part

II.A.

At approximately 12:30 p.m. on February 2, 2009, Plaintiff and other residents of Ward 304 at CNYCP were finishing their lunch in the dining room when they were informed by CNYCP staff members that before they could return to the day room, they were to be strip searched. Compl. atp. 5. Thirteen residents, Plaintiff included, withheld their consent to be strip searched and asked to speak with someone of authority about the issue. Id. at p. 6. Shortly thereafter, Defendants Charmine Bill, Unit 204's Treatment Team Leader, and Dr. Terri Maxymillian, Director of the Sex Offender Treatment Program ("SOTP") at CNYPC, came to the dining room and ordered Plaintiff and the others to participate in the strip search, threatening to call the New York State Police to forcibly conduct the strip searches if their consent was not forthcoming. Id. Maxymillian and Bill also stated that if the residents refused to participate, they would call their respective parole officersand have them violated for refusing to submit to a strip search. Id. When the residents asked why the searches were necessary, Dr. Maxymillian stated that the CNYCP administration had reasonable cause to believe that one of the residents had in his possession a controlled substance. Id. Based on Maxymillian's and Bill's threats, Plaintiff decided to cooperate and underwent the strip search.

After the strip search, Plaintiff was led to the day room where he remained until approximately 4:30 p.m., when he was moved to Ward 404. Id. at p. 7. From the moment he arrived at Ward 404, Plaintiff was subjected to verbal harassment, threats, and false accusations by several CNYCP staff members who are not named as Defendants in this action.*fn1

Plaintiff took steps to inform the following persons and offices of these alleged incidents: Mental Hygiene Legal Services, the New York Civil Liberties Union, New York State Department of Health and Human Services, New York State Office of the Inspector General, New York State

Secretary of Health and Human Services, New York State Governor's Office, New York State Office of Mental Health Customer Relations Office, and Bruce E. Feig, Executive Deputy Commissioner of the Office of Mental Health. Id. at p. 9.

II. DISCUSSION

A. 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). "The 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, 754 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, ...


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