The opinion of the court was delivered by: Neal P. McCurn, Senior District Judge
MEMORANDUM-DECISION and ORDER
Presently before the court is a Report-Recommendation ("Report") from United States Magistrate Judge George H. Lowe. See Dkt. No. 35. In this Report, Magistrate Judge Lowe recommends that a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure by defendants Donald Sawyer, Peter Hanmer, Nikihili Nihalani, Jose Gonzalez ("Gonzalez"), and Bezazel Wurzberger ("Wurzberger")*fn1 (collectively, "Moving Defendants")*fn2 be denied in part and granted in part and that a motion for appointment of counsel by plaintiff, Jason Balkum ("Plaintiff") be denied without prejudice. Moving Defendants and Plaintiff, appearing pro se, timely filed objections, in part, to the Report. For the reasons that follow, the Report is adopted in its entirety.
For purposes of deciding the pending Rule 12(b)(6) motion to dismiss, the court will, as it must, accept as true the following allegations in Plaintiff's complaint. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003) (quoting Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001)).
Plaintiff alleges he was involuntarily confined against his will at Central New York Psychiatric Center ("CNYPC"). In August 2006, Plaintiff was serving a prison sentence at Washington Correctional Facility. Two weeks before his prison term ended, Plaintiff was transferred to Coxsackie Correctional Facility. While at Coxsackie, defendants Gonzalez and Wurzberger, psychiatrists with the New York State Office of Mental Health ("OMH"), interviewed Plaintiff in order to determine whether he should be involuntarily confined pursuant to New York Mental Hygiene Law § 9.27. Gonzalez and Wurzberger each completed a certificate of examination recommending that Plaintiff be involuntarily confined.
Plaintiff alleges that Gonzalez and Wurzberger, in reaching their conclusions that Plaintiff should be involuntarily confined, each relied on "libelous and slanderous comments" by defendant Joanne Winslow ("Winslow"), a then assistant district attorney with the Monroe County District Attorney's Office. Compl. ¶ 10. In his certificate of examination, Gonzalez noted that Winslow sent a letter to OMH indicating that Plaintiff is a danger to the community and that Winslow fears for her own personal safety. Wurzberger noted that in addition, Winslow reported that Plaintiff was still "writing obsessive letters about this case." Compl. ¶ 8. Plaintiff alleges that in relying on Winslow's statements to recommend involuntary confinement, Gonzalez and Wurzberger entered into a conspiracy with Winslow to deprive Plaintiff of his right to due process under the United States Constitution.
In support of their motion, Moving Defendants submit the certificates of examination, which are properly considered by this court as Plaintiff refers to them in his complaint. See infra, at 6. A review of the certificates reveals that in addition to Winslow's statements, Gonzalez considered Plaintiff's commitment offense and criminal history, psychological diagnosis, psychological test scores, lack of remorse, continued denial that he committed a crime, refusal to participate in treatment, and disciplinary record while incarcerated. See Ex. A to Decl. of Richard Lombardo, Sept. 14, 2009, Dkt. No. 28 ("Lombardo Decl."). Wurzberger considered, in addition to Winslow's statements, Plaintiff's commitment offense and criminal history, lack of remorse, refusal to participate in treatment, denial that he committed the crimes, and psychological test scores. See id.
Plaintiff also alleges that defendant Donald Sawyer ("Sawyer"), Executive Director of CNYPC conspired with defendants Peter Hanmer ("Hanmer"), a Social Worker at CNYPC and Nikihili Nihalani ("Nihalani"), a psychiatrist at CNYPC, to conceal from Plaintiff that he had been wrongfully and illegally involuntarily confined against his will, based upon their various efforts to thwart Plaintiff's attempts to receive copies of the certificates of examination.
Plaintiff purports to set forth claims against defendants pursuant to 42 U.S.C. § 1983 for violations of his right to due process under the Fourteenth Amendment to the United States Constitution as well as the New York common law tort claims of libel and unlawful imprisonment. Moving Defendants seek dismissal of the complaint against them for failure to state claims upon which relief may be granted. As is relevant here, Moving Defendants argue that (1) Plaintiff fails to state a section 1983 claim against them because the Due Process Clause does not require that a physician's assessment in his commitment evaluation be correct, (2) Plaintiff fails to establish the elements of a conspiracy claim under federal civil rights law, and (3) in any event, Moving Defendants are entitled to qualified immunity. Despite being given two opportunities to oppose the motion, Plaintiff failed to do so. See Dkt. Nos. 31, 33.
In his Report, Magistrate Judge Lowe recommends Moving Defendants' motion be granted in part and denied in part, and further recommends sua sponte dismissal of the complaint against defendant Wilson.
Plaintiff objects to so much of the Report that recommends dismissal of conspiracy claims against all defendants, dismissal of a due process claim against defendants Gonzalez and Wurzberger based on their compliance with Mental Hygiene Law § 9.27, and sua sponte dismissal of all claims against defendant Winslow. For their part, Moving Defendants object to so much of the Report that recommends denial of their motion to dismiss the complaint regarding a due process violation based on a decision by defendants Gonzalez and Wurzberger to apply the procedures in Mental Hygiene Law § 9.27 rather than New York Correction Law § 402. Moving Defendants further object to so much of the Report that recommends denial of qualified immunity to defendants Gonzalez and Wurzberger on the same due process claim.
When considering objections to an order of a magistrate judge concerning a dispositive matter, the district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). See also FED. R. CIV. P. 72(b). A district judge may accept, reject or modify the findings and recommendations of the magistrate judge. See RULE 72(b). See also Rivera v. Barnart, 423 F.Supp.2d 271, 273 (S.D.N.Y. 2006).*fn3
When deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must accept the factual allegations in the complaint as true, drawing all inferences in favor of the plaintiff. See supra, at 2. The court is generally "required to look only to the allegations on the face of the complaint." Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007). However, in addition to the complaint's factual allegations, the pleading includes any written instrument or exhibit attached to a complaint or incorporated by reference. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-153 (2d Cir. 2002) (citing Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995)).
Plaintiffs must allege enough facts "to raise a right of relief above the speculative level." See Bell Atl. Corp. V. Twombly, 550 U.S. 544, 555--56, 127 S.Ct. 1955, 1965 (2007). But a plaintiff need not plead specific facts. See Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 2200 (2007). Where certain "facts are peculiarly within the possession and control of the defendant," plaintiffs are not prevented from "pleading facts alleged upon information and belief." See Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (internal quotations omitted) (quoting Boykin v. Keycorp, 521 F.3d 202, 215 (2d Cir. 2008)). The complaint must contain sufficient factual allegations, accepted as true, to state a facially plausible claim. See Ashcroft v. Iqbal, - U.S. -, -, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007)). ...