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Sara Harvey, Pro Se, Sara Harvey, Wife/Next Friend, and Gary E. v. Chemung County

March 6, 2012

SARA HARVEY, PRO SE, SARA HARVEY, WIFE/NEXT FRIEND, AND GARY E. HARVEY, PHYSICALLY INCAPACITATED ADULT, PLAINTIFFS,
v.
CHEMUNG COUNTY, CHEMUNG COUNTY DEPARTMENT OF SOCIAL SERVICES (CCDSS), ADULT PROTECTIVE SERVICES OF CHEMUNG COUNTY (APS), MENTAL HYGIENE LEGAL SERVICES (MHLS), CHEMUNG COUNTY NURSING FACILITY (CCNF), ST. JOSEPH'S HOSPITAL (SJH), DERETHA WATTERSON, RITA GOULD, KEVIN MOSHIER, ESQ., BRYAN MAGS, ESQ., FRANCISCO CORBALAN, M.D., LINDA DAINO, AND DONALD S. THOMSON, ESQ. DEFENDANTS.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

DECISION and ORDER

INTRODUCTION

Plaintiff Sara Harvey, ("Mrs. Harvey" or "the plaintiff") proceeding pro se, brings this action against the above-named defendants claiming that they have violated her rights, and the rights of her husband Gary E. Harvey, ("Mr. Harvey") who previously suffered a serious brain injury and is now in a persistent vegetative state. Plaintiff alleges that the defendants have failed to provide Mr. Harvey with adequate healthcare, and have prevented her from controlling his health care. According to Mrs. Harvey, the defendants, who include Mr. Harvey's legal guardians, care givers, insurers, and various attorneys, have failed to provide adequate healthcare; have failed to provide rehabilitative care; have unlawfully prohibited Harvey from visiting with and caring for her husband, and have unlawfully had her removed as the legal guardian of her husband. Mrs. Harvey contends that the defendants' actions violate her rights under the Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution, have violated the Americans with Disabilities and Olmstead Acts, and have violated Sections 1981 and 1983 of Title 42 of the United States Code.

Plaintiff filed her original Complaint on November 14, 2011. Simultaneously, she filed a motion for appointment of counsel. One month later, on December 15, 2011, Mrs. Harvey filed an Amended Complaint, and simultaneously filed a motion for the appointment of a guardian ad litem for her husband. Thereafter, the defendants, by motions filed January 9, 2012, January 11, 2012, January 12, 2012, and January 24, 2012, move to dismiss plaintiff's claims for failure to state a claim. By motion dated January 31, plaintiff moves to disqualify attorney Don Thomson as counsel of record in this matter because of purported conflicts of interest, and by motion dated February 24, 2012, plaintiff moves for summary judgment.

For the reasons discussed below, I grant defendants' motions to dismiss, deny plaintiff's motion for summary judgment, request for appointment of a guardian ad litem,motion for appointment of counsel, and motion to disqualify, and dismiss the Amended Complaint with prejudice.

BACKGROUND

Plaintiff Sara Harvey is the wife of Gary Harvey, a long-term patient residing in a skilled nursing home at St. Joseph's Hospital in Elmira, New York. In January 2006, Mr. Harvey suffered a severe brain injury that has left him comatose, and in a persistent vegetative state. Following his injury, Mr. Harvey was treated at the Chemung County Nursing Facility, in Elmira, New York.

Mrs. Harvey has had a contentious relationship with her husband's caregivers. As a result, in April, 2006, Harvey, who was represented by counsel, brought a proceeding in New York State Supreme Court to be appointed the guardian of her husband.*fn1 Initially, the parties to the proceeding stipulated to appoint Mrs. Harvey as guardian. However, Mrs. Harvey withdrew her consent to the stipulation, and requested a hearing on the matter. Thereafter, Mrs. Harvey appeared with new counsel at the hearing scheduled before Justice Robert C. Mulvey of the New York State Supreme Court, Chemung County. Mrs. Harvey's counsel, however, asked to be relieved due to a conflict of interest. Mrs. Harvey's counsel was relieved, and plaintiff proceeded pro se at the hearing. Justice Mulvey conducted the hearing to determine whether or not Mrs. Harvey should be appointed as guardian of her husband, and in a written Decision and Order dated March 13, 2007, held that Sara Harvey was "not suitable to carry out the responsibilities and duties of guardian of her husband." See March 13, 2007 Decision and Order of Justice Robert C. Mulvey at p. 4-5. In so holding, Justice Mulvey noted that Mrs. Harvey: acted contrary to Mr. Harvey's medical needs by attempting to feed him food despite the fact that Mr. Harvey is incapable of swallowing, thereby putting him in danger of aspiration and aspiration pneumonia; cut an external vinyl tube that was part of Mr. Harvey's tracheostomy, (resulting in the New York State Department of Health intervening and requiring all visits by Sara Harvey with her husband to be supervised); took Mr. Harvey off nursing facility grounds, occasionally without informing staff of where he was being taken, and wheeled her husband in a reclining lounge chair around city streets, subjecting him to potential dangers; and refused to attend guardianship training that she had to agreed to attend as part of the original stipulation appointing her as guardian of Mr. Harvey. See March 13, 2007 Decision and Order of Justice Robert C. Mulvey at p. 5-6.*fn2 In the absence of any other better suited or willing party to act as guardian, Justice Mulvey appointed the Chemung County Department of Social Services to act as Mr. Harvey's guardian. Pursuant to that Order, defendant Deretha Watterson of the Chemung County Department of Social Services has acted as Mr. Harvey's guardian.

In August, 2009, Mrs. Harvey, proceeding pro se, moved to have the County of Chemung removed as guardian, and to have herself substituted as guardian. Justice Judith O'Shea of the New York State Supreme Court, Chemung County conducted a hearing on the application. Justice O'Shea noted that during the pendency of the proceedings, Mr. Harvey's insurer, Blue Cross and Blue Shield, obtained a judgment against Mrs. Harvey in the amount of $35,997.28 for checks that were sent to reimburse Mr. Harvey's medical expenses, but which were cashed and spent by Mrs. Harvey for her own needs. Additionally at the hearing, Mrs. Harvey failed to appear to give testimony on her own behalf. Justice O'Shea denied Mrs. Harvey's motion to remove the County of Chemung as Mr. Harvey's guardian, and further prohibited her from filing papers with the court unless she was represented by a licensed attorney admitted to practice before the courts, or had received explicit permission of the court to file papers. These sanctions resulted from Mrs. Harvey's voluminous filings before that court which Justice O'Shea described as "filled with inaccuracies, misstatements of fact, frivolous allegations, and inconsistent demands . . . ." See June 20, 2011 Decision and Order of Justice Judith F. O'Shea at p. 4.

Justice O'Shea further characterized Mrs. Harvey's conduct as "increasingly belligerent and bizarre . . . ." Id. at p. 5.

Mrs. Harvey appealed Justice O'Shea's decision, but on November 7, 2011, she voluntarily withdrew her appeal. One week later, on November 14, 2011, Mrs. Harvey filed the instant action in this court against seven named defendants, alleging various violations of her federal and constitutional rights, and violations of her husband's rights. Plaintiff simultaneously moved for appointment of counsel. Approximately one month later, on December 15, 2011, plaintiff moved for appointment of a guardian ad litem for her husband, and filed an Amended Complaint. Plaintiff's Amended Complaint names 13 defendants, and sets forth seventeen claims upon which plaintiff seeks relief. Plaintiff again purports to proceed on behalf of herself and her husband.

Plaintiff's seventeen claims set forth various complaints that she has with her husband's care as follows.

Claim One of the Amended Complaint alleges that Mrs. Harvey has been shut out of discussions about her husband's care, and that the defendants have failed to seek rehabilitative care for her husband, and have allowed her husband to atrophy. Plaintiff further alleges that the defendants have failed to provide dental care and eye exams. As relief, plaintiff seeks an order directing the defendants to provide rehabilitative care, and directing defendants to give plaintiff free access to Mr. Harvey's medical records.

Claim Two of the Amended Complaint alleges that because Mr. Harvey suffers from a disability, the defendants have failed to care for him as they should, and have prevented Mr. Harvey from obtaining a second medical opinion. She alleges that the defendants purposefully deny care to Mr. Harvey so that the nursing home in which he resides can continue to collect fees for services provided to him. She alleges a conflict of interest between attorneys representing the County of Chemung because the County is both the guardian of Mr. Harvey and the payer of certain governmental benefits to Mr. Harvey. She seeks an order, inter alia: granting Mr. Harvey permission to get a second medical evaluation and opinion; "all of the benefits that his ...


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