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Ong v. Park Manor (Middletown Park) Rehabilitation & Healthcare Center

United States District Court, S.D. New York

September 29, 2014

BIENVENIDO PILAO ONG, Plaintiffs,
v.
PARK MANOR (MIDDLETOWN PARK) REHABILITATION AND HEALTHCARE CENTER et al., Defendants

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[Copyrighted Material Omitted]

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Bienvenido Pilao Ong, Plaintiff, Pro se, Middletown, NY.

For Park Manor (Middletown Park) Rehabilitation and Healthcare Center, Darla Conklin, Eileen Masterson, Jennifer Small, Wendy Brewster, Jenna Green, Suzanne Forman, and Lisa M. Reyes, Defendants: Katherine J. Zellinger, Esq., Law Offices of Alan I. Lamer, Elmsford, NY.

For Park Manor (Middletown Park) Rehabilitation and Healthcare Center, Defendant: Victor Carmine Piacentile, Esq., Kopff, Nardelli & Dopf, LLP, New York, NY.

For Town of Wallkill Police Department, Police Officer Jason Farmingham, Robert Hertman, Sergeant Mr. R. Procak, TOW-P.O. Jefferey Gulick, TOW-P.O. Adam Solan, Deputy Chief Anthony Spano, Sgt. Robert McLymore, Sgt. Robert Kammarada, and P.O. A. Dewey, Defendants: James A. Randazzo, Esq., Caitlin Grace Scheir, Esq., Gaines, Gruner, Ponzini & Novick, LLP, White Plains, NY.

For County of Orange, Tim Murphy, Candice H. Crain, Dina M. Lacatena, Defendants: Carol C. Pierce, Esq., Orange County Attorney, Goshen, NY.

For Timothy Mannix, Defendant: Michael Francis Albanese, Esq., State of New York, Attorney General's Office, New York, NY.

For Sholes & Miller, LLP, Defendant: Kenneth Andrew McLellan, Esq., Keith Robert Roussel, Esq., Winget Spadafora & Schwartzberg, LLP, New York, NY.

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OPINION AND ORDER

KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE

Plaintiff Bienvenido Pilao Ong brings this Action against multiple defendants, alleging various claims under federal and state law arising out of five incidents that took place in 2010 and 2011. Before the Court are five motions to dismiss filed by certain groups of Defendants. For the following reasons, the Court grants those motions in part and denies them in part.

I. BACKGROUND

A. Factual Background

The following facts are taken from Plaintiff's Second Amended Complaint and the exhibits attached thereto. ( See Second Am. Compl. (Dkt. No. 32).)[1] Plaintiff is an Asian-American naturalized U.S. citizen over the age of 65 who, at all relevant times, was a resident of Middletown, NY. ( See id. ¶ ¶ 28, 78.) Defendants include four entities and a number of individuals employed by those entities, which Plaintiff classifies into five categories: (1) Middletown Park Rehabilitation and Health Care Center (formerly known as " Park Manor" ) (" MPRHCC" ), a long-term-care facility primarily serving elderly individuals; Vincent Maniscalco (" Maniscalco" ), an administrator; Darla Conklin (" Conklin" ), an assistant administrator; Eileen Masterson (" Masterson" ), a director of nursing; Suzzane Forman (" Forman" ), a director of social services; Jenna Green (" Green" ), a case manager; Jennifer Small (" Small" ), a nursing manager; Wendy Brewster (" Brewster" ), another nursing manager; Lisa Reyes (" Reyes" ), a physical therapist; " Ms. Dawn" (" Dawn" ), a duty nurse; " Ms. Tiffany" (" Tiffany" ), a nursing aid; and " Ms. Yvette" (" Yvette" ), another nursing aid, (collectively, " MPRHCC Defendants" ); (2) Town of Wallkill Police Department (" Wallkill" ); Chief of Police Robert Hertman (" Hertman" ); Deputy Chief Antonio Spano (" Spano" ); Sergeant Robert Kammarada (" Kammarada" ); Sergeant Robert McLymore (" McLymore" ); Sergeant Richard Procak (" Procak" ); Officer Jason Farmingham (" Framingham" ); Officer " A. Dewey" (" Dewey" ); Officer Thomas Kleveno (" Kleveno" ); Officer " S. Belgiovene" (" Belgiovene" ); Officer Jeffrey Gulick (" Gulick" ); Officer Adam Solan (" Solan" ); Sergeant " A. Moskowitz" (" Moskowitz" ); and Angelina Guzman (" Guzman" ), a police dispatcher (collectively, " Wallkill Defendants" ); (3) " New York State Police--Troop F" (" New York State" ) and Timothy Mannix (" Mannix" ), a New York State police officer; (4) County of Orange (" Orange County" ); Tim Murphy (" Murphy" ), the head supervisor of Orange County's Adult Protective Services department (" APS" );

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and APS case workers Candice Crain (" Crain" ), Kate Labuda (" Labuda" ), Dina Lacatena (" Lacatena" ), and Andrea Leo (" Leo" ) (collectively, " Orange County Defendants" ); and (5) Sholes & Miller, LLP (" Sholes & Miller" ), a New York law firm. ( See id. at 1-3.)

The Complaint divides its allegations and exhibits into five sections corresponding to the five days on which the events giving rise to Plaintiff's Complaint allegedly occurred. The Court's summary follows Plaintiff's chronological organization.

1. March 30, 2010

On March 30, 2010, Plaintiff got into an argument with his daughter, who was a minor. ( Id. ¶ ¶ 63, 109.) The police were called, and Defendant Farmingham, along with other unnamed police officers, arrived at Plaintiff's home. ( Id. ¶ 109.) Plaintiff attempted to explain the situation, but " Farmingham did not listen to [his] explanation," and instead " just hand cuff[ed]" Plaintiff and " dragg[ed] [him] down stair[s] going to . . . [a] driveway." ( Id.) Farmingham then " unlawfully arrested" Plaintiff, using " substantial force . . . without provocation" while doing so ( Id.)

Farmingham " never created or made [an] arrest/incident[] report," ( id. ¶ 51.1), but Plaintiff was nevertheless charged with one count of second-degree menacing, N.Y. Penal Law § 120.14, and one count of endangering the welfare of a child, N.Y. Penal Law § 260.10, both Class A misdemeanors under New York law, ( see id. ¶ 56; see also id. Ex. 1.2 (Securing Order, dated Mar. 30, 2010)). Bail was set at $1,000 cash or $2,000 bond, but Plaintiff was remanded and remained in jail until he was released on April 4, 2010. ( See id. ¶ 59; see also id. Ex. 1.2.) Plaintiff was ultimately convicted of one count of endangering the welfare of a child, as charged, and one count of disorderly conduct, N.Y. Penal Law § 240.20 (the latter of which is a " violation," as opposed to a Class A misdemeanor) on May 6, 2010. ( See id. Ex. 1.4 (Seal Order, dated Mar. 21, 2013, indicating that Plaintiff's case was adjudicated on May 6, 2010, and that it " was terminated with a conviction for a noncriminal offense" ); see also id. (Certificate of Disposition, dated Jan. 15, 2013, indicating same).)

While Plaintiff was in jail, authorities took two actions related to Plaintiff's charges. First, on March 30, the day of Plaintiff's arrest, a town court justice issued a temporary Order of Protection against Plaintiff, prohibiting him from certain types of contact with his daughter and two other individuals. ( See id. ¶ 60; see also id. Ex. 1.1 (Order of Protection, dated Mar. 30, 2010).) That order expired on April 15, 2010. ( See id. ¶ 63; see also id. Ex. 1.1.) Nevertheless, perhaps due in part to the Order, Plaintiff stayed in a hotel from April 4, 2010 (the day he was released) until May 20, 2010, and thereby incurred $3,306.94 in charges. ( See id. ¶ 59; see also id. Ex. 1.6 (Microtel Folio).) Second, on March 31, the day after Plaintiff's arrest, while he was still in jail, Wallkill police officers--one of whom was Defendant Dewey--went to Plaintiff's home and seized a firearm and a pistol permit, the former of which police later secured in an armory, and the latter of which they forwarded to the Orange County Pistol Permit Office. ( See id. ¶ ¶ 39, 56, 59, 110; see also id. Exs. 1.5-1, 1.5-2 (Firearms Surrender Report, dated Mar. 31, 2010).) It is unclear whether police returned these items to Plaintiff when he was released, but on April 7, three days later, a county court judge issued an Order of Suspension, ordering that Plaintiff's pistol permit be suspended, that Plaintiff " immediately surrender all weapons and license [sic] to the Orange County Sheriff's Department," and that, if Plaintiff did not comply, the

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Orange County Sheriff's Department would be " directed to send a representative to take custody of said weapons." ( Id. Ex. 1.5A (Order of Suspension, dated Apr. 7, 2010); see also id. ¶ 63.2.)

2. August 20, 2010

On August 20, 2010, Plaintiff lived with his mother in an apartment in Middletown. ( Id. ¶ 111.) That afternoon, Defendant Guzman, a 911 operator, received a call from Plaintiff's neighbor, who reported that " Plaintiff's mother was yelling that she was being sexually assaulted and/or otherwise physically abused by Plaintiff." ( Id.) Guzman then dispatched Defendants Farmingham and Kleveno to Plaintiff's apartment. ( Id.) After they arrived at the apartment and knocked on the door, Plaintiff answered and asked them why they were there. ( Id.; see also id. ¶ 75.) Initially, Farmingham asked Plaintiff if Plaintiff knew him; Plaintiff responded that he remembered Farmingham as the officer who arrested him on March 30, 2010. ( Id. ¶ ¶ 75, 111.) Farmingham then told Plaintiff that he was there to arrest Plaintiff again, and when Plaintiff asked him why, Farmingham responded that the police had received a call from Plaintiff's neighbor reporting that Plaintiff's mother was " 'yelling for help'" and that " it sounded as though someone [was] being raped." ( Id. ¶ ¶ 64, 111; see also id. ¶ 75 (alleging that Farmingham told Plaintiff that he was " going to arrest [him] again because somebody heard . . . [his] mom yelling [that] she was getting or being rape[d] and [that] [someone] [was] biting [his] mother" ).) When Plaintiff asked about the neighbor's identity, the officers refused to tell him. ( Id. ¶ ¶ 75, 111.)[2]

Farmingham and Kleveno then " immediately" entered the apartment and " closed the door," at which point Farmingham " push[ed] [Plaintiff] near [a] door," told him to " put [his] hand[s] up," and then told him to " start strip[ping] from head to foot." ( Id. ¶ 111.) The officers, aware that Plaintiff previously possessed a handgun and a pistol license, were specifically looking for a " weapon or gun." ( Id.) Farmingham then " put hand cuffs on [Plaintiff] [and] then start[ed] biting Plaintiff" ; Kleveno saw this occur, but did not try to intervene. ( Id.; see also id. ¶ ¶ 64, 71.)

At some point while in Plaintiff's apartment, Farmingham stated that he detected a " 'very strong odor of something rotting.'" ( Id. ¶ 65.) He then " went to [Plaintiff's] refrigerator," " open[ed]" it, commented that it " 'smell[ed] [of] rotten food,'" and asked Plaintiff whether he was " 'feeding [his] mother'" rotten food. ( Id. ¶ 67.) Plaintiff responded that the officers should " not [be] searching and opening [his] refrigerator" because they were there for the " 'purpose'" of responding to the " 'anonymous call,'" and that they were " 'violating [his] privacy and at the same time harassing'" and " 'intimidating'" him. ( Id.) In a similar incident, while Plaintiff was in handcuffs, he asked Farmingham to " close[] [his] laptop" before the officers brought him to the police station, but Farmingham refused. ( Id. ¶ 73.) Plaintiff alleges that he was later told by a friend who went to Plaintiff's apartment after Plaintiff was taken to jail that Farmingham searched Plaintiff's laptop and made a comment to Plaintiff's friend about Plaintiff's finances based on information he obtained in the search. ( Id. ¶ ¶ 73, 111.)

While the officers were at the scene, an ambulance arrived, as well as Defendant Crain, who appeared on behalf of APS. ( See id. ¶ 77.1; see also id. Ex. 2.0 (Incident

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Report, dated Aug. 20, 2010, indicating that Crain and a non-party nurse were at the scene); id. Ex. 2.1 (Arrest Report, dated Aug. 20, 2010, indicating same).) All of those parties entered Plaintiff's mother's bedroom and, after examining her at the scene, decided to send her to Orange Regional Medical Center for a full evaluation. ( See id. Ex. 2.0.) Although the examining doctor found " [n]o information regarding sexual or psychiatric abuse" and that there were " no fracture[s]" or " signs of infection," he did determine that Plaintiff's mother suffered from " [d]ementia," " severe dehydration," and " [p]hysical abuse" in the form of " ecchymosis on the skin of upper and lower extremities and blisters." ( Id ¶ 77.1.; id. Ex. 2.14 (History and Physical, dated Aug. 20, 2010).)[3] The doctor also noted that he would consider a " gynecological exam," possibly based on the rape allegations. ( Id ¶ 77.1; id. Ex. 2.14.)

The police filed an Incident Report that day, which included an officer's account of the arrest:

On August 20, 2010, [Farmingham] was dispatched to [Plaintiff's apartment] to check the welfare of an elderly female. Upon arrival[, Plaintiff] answered the door, [Farmingham] informed [Plaintiff] that [he] and officer Kleveno were there to check the welfare of his mother. Upon [Plaintiff] answering the door there was a very strong odor of something rotting. [Plaintiff] immediately became defensive and stated to [the officers] that he had just put his mother to sleep and the he did not want us to wake her. [The officers] then informed [Plaintiff] that [they] would need to speak to his mother before leaving. [Plaintiff] agreed to let [the officers] speak to his mother. While walking in [Plaintiff] began to appear very nervous. Upon entering [the mother's] bedroom, [the officers] immediately observed several bruises on [the mother's] legs [and] arms and also that [the mother] had a black eye. [Farmingham] also observed bed sheets next to [the mother's] bed that were covered in urine. [Plaintiff] was asked to leave the room so [Farmingham] could speak to [the mother]. [Farmingham] then interviewed [the mother,] who was visibly shaking and appeared confused. [Farmingham] attempted to interview [the mother,] but due [to] a language barrier [Farmingham] was unable to obtain information from [the mother]. [The mother] also appeared to [be] frightened and afraid to speak to [the officers]. [An ambulance] was dispatched and [Farmingham] contacted [APS]. [Farmingham] spoke with Candice Crain of APS[,] who stated that she would respond to [the] location. Upon arrival of [the ambulance,] [Plaintiff] stated to [the officers] and in front of the [ambulance crew], " I tie [sic] her legs up." [The officers] then took [Plaintiff] into custody, [and Plaintiff] was then transported to [the] station for processing. Upon arrival of [Crain], [Crain] spoke with [the mother] and discovered that her legs[,] which were covered under the blankets[,] were still tied with a twisted plastic bag. [Crain] immediately removed [the mother's] legs from the restraint and informed [Farmingham]. [The mother] was transported to [the hospital] for evaluation . . . . [Crain] went to the hospital with [the

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mother]. Upon arrival to the hospital[, Crain] discovered with hospital staff further bruising on [the mother's] breast and upper thighs. [The doctor] stated that the bruising was consistent with [the mother] being physically abused.

( Id. Ex. 2.0.) The police also provided Plaintiff with an official notice, required by N.Y. C.P.L. § 710.30, of the county's intent later to offer Plaintiff's statement, " I tie [sic] her legs down," into evidence. ( Id. Ex. 2.0-2 (710.30 Notice, dated Aug. 20, 2010).)

Plaintiff was charged that day with second-degree endangering the welfare of a vulnerable elderly person (a Class E felony), N.Y. Penal Law § 260.32, third-degree assault (a Class A misdemeanor), N.Y. Penal Law § 120.00, and second-degree unlawful imprisonment (a Class A misdemeanor), N.Y. Penal Law § 135.05. ( Id. ¶ 65; see also id. Ex. 2.1 (Arrest Report, dated Aug. 20, 2010).) In a misdemeanor information and felony complaint filed the same day, Farmingham offered an account of the incident that appears to be consistent with the account he gave in the Incident Report:

[Plaintiff] . . . [,] on Aug[ust] 20, 2010 at approximately [3:25 p.m.,] being the caregiver for 92 year old victim (Felicidad P[.] Rana)[,] did physically tie [the] victim's feet together and then to the bed using a plastic bag, in order to prevent said victim from being able to get out of bed. Furthermore[,] the victim was unable to stand on her own and walk to the bathroom due to the tightness in her ankles from being restrained[,] causing said victim to urinate on the floor.

( Id. Ex. 2.2 (Misdemeanor Information, filed Aug. 20, 2010).)

[Plaintiff] . . . [,] on Aug[ust] 20, 2010 at approximately [3:25 p.m.,] being the caregiver for 92 year old victim (Felicidad P[.] Rana)[,] did physically tie [the] victim's feet to the bed using a plastic bag. [Plaintiff's] actions did cause swelling and severe bruising to [the] victim's ankles and feet.

( Id. Ex. 2.3 (Felony Complaint, filed Aug. 20, 2010).)[4]

Plaintiff was kept in jail overnight, but the next morning he was released on bail with the assistance of his friend. ( Id. ¶ 64.) That same day, Plaintiff saw a doctor, who completed a medical examination, which included taking numerous x-rays, and concluded that Plaintiff had bruises on his stomach and left arm. ( See id. ¶ 71; id. Ex. H (prescription slip, noting that Plaintiff complained of being " bitten by police" and had " bruise[s]" on his chest and abdomen); id. Exs. I, J, K (x-ray images); id. Exs. L, M, N (photos of Plaintiff appearing to indicate bruises).)

3. June 10, 2011

On June 10, 2011, Plaintiff's mother was a resident at MPRHCC, where she lived on the third floor, fifth unit, in Room #511. ( Id. ¶ ¶ 102, 112.) While visiting his mother in her room, Plaintiff observed that his mother had been " neglected," in that she was not wearing any pants or socks, but was " covered [only] by [three] bed sheet[s]," and was therefore " chilling because [the air conditioner] was so high." ( Id. ¶ 90; see also id. ¶ 102.) He also observed that her pants, which had been " 'thrown in the garbage,'" were " full of feces and soak[ed] with urine." ( Id. ¶ ¶ 90, 102.) Plaintiff was concerned, not only because of his mother's present situation, but also because he knew that multiple times his mother had repeatedly pushed a

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" 'red button'" in her room to summon help, " but no one came[] in." ( Id. ¶ 90.) Plaintiff asked two nurses, Defendants Tiffany and Yvette, to watch his mother while he asked a third nurse, Defendant Dawn, who was alone at a nearby nursing station, to bring his mother some socks. ( Id. ¶ ¶ 90, 102.)

At some point, Dawn " reported Plaintiff to [the] Director of Nursing." ( Id. ¶ 90.) Then, Defendant Brewster, a nursing manager, and Defendant Reyes, a physical therapist, " allegedly called the [Wallkill] police to inform the[m] that she [sic] had heard Plaintiff yelling [at his] mother and [making] verbal threat[s] regarding the use of [a] firearm." ( Id. ¶ 112.) Two police officers responded to the scene: Defendant Gulick, from Wallkill, and Defendant Mannix, a state trooper. ( See id. ¶ ¶ 88, 102-03.) They did not find a firearm at the scene, ( id. ¶ 112), but Gulick did arrest Plaintiff and charge him with third-degree attempted assault (a Class B misdemeanor), N.Y. Penal Law § § 110.00, 120.00, and first-degree endangering the welfare of an incompetent or physically disabled person (a Class A misdemeanor), N.Y. Penal Law § 260.25, (s ee id. ¶ ¶ 88, 102; see also id. Ex. 3.18 (Arrest Report, dated June 10, 2011).) Plaintiff alleges that, throughout the course of the incident, only seven people were present: Gulick, Mannix, Tiffany, Yvette, Plaintiff, his mother, and Defendant Masterson. ( Id. ¶ 102.) Conversely, he alleges that a number of Defendants--specifically, Conklin, Small, Brewster, Green, Forman, Reyes, and Maniscalco--were not present. ( Id. ¶ ¶ 86, 87, 89, 90, 102.)

A temporary Order of Protection issued that same day, ordering Plaintiff to surrender any firearms he owned or possessed, and prohibiting Plaintiff from certain types of contact with his mother. ( Id. Ex. 3.15 (Order of Protection, dated June 10, 2011).) Another temporary Order of Protection was then issued on July 12, 2011, restricting Plaintiff generally from any form of communication or contact with his mother, but allowing Plaintiff to visit his mother " only . . . under the supervision of [Plaintiff's friend] Brent Borgmann." ( Id. Ex. 3.21 (Order of Protection, dated July 12, 2011).) A final temporary Order of Protection was entered on August 2, 2011, retaining the supervised-visit condition of the previous order while also ordering Plaintiff to refrain from committing " any criminal offense or interference with" his mother. ( Id. Ex. 3.23 (Order of Protection, dated Aug. 2, 2011).) The Order, which expired on August 2, 2012, also entered an " adjournment in contemplation of dismissal" of Plaintiff's case, meaning that if Plaintiff complied with the Order for one year, he could expect the charges to be dismissed. ( Id.; see also id. Ex. 3.26 (Letter from Plaintiff's attorney, Craig Stephen Brown, Esq., to Plaintiff, dated Aug. 5, 2011, informing Plaintiff that he " [was] given a one . . . year Adjournment in Contemplation of Dismissal with a limited Order of Protection," and that " [i]f [he] [did] not get arrested within this one . . . year time period, the charge [would] be dismissed" ).)

The Complaint is somewhat unclear as to the details of the incident that prompted Plaintiff's arrest, but documents attached to the Complaint--including a Domestic Incident Report and an Incident Report--contain Defendant Gulick's account:

While [Plaintiff] was visiting [his mother] at a rehabilitation/nursing facility, [Plaintiff] became verbally abusive towards [his mother] and also struck and pushed [her] several times. [Plaintiff] was placed in custody by [Gulick]. [Plaintiff's mother] did not suffer any injuries. [Her] [s]tatement was taken

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from [a] staff member who witnessed [the] incident.

( Id. Ex. 3.17 (Domestic Incident Report, dated June 11, 2011).)

[Gulick] responded to a 911 [call]. Upon arrival [Gulick] located [Plaintiff] inside a private residential room with [his mother] and several staff members from [MPRHCC]. [Gulick] advised [Plaintiff] to exit the room and stand in the hallway. [Plaintiff] was uncooperative but eventually left the room. [Gulick] and [Defendant Belgiovene] searched [Plaintiff] because it was reported [that] he made a verbal threat regarding the use of a firearm. No firearm [was] located. [Gulick] spoke with [a witness, who was a physical-therapist assistant,] who advised [that] at approx[imately] [5:00 p.m.,] she [was] walking down the hallway and heard yelling, cursing[,] and what sounded like approx[imately] [three] slaps coming from [Plaintiff's mother's] room . . . . [The witness] observed [Plaintiff's] arm in the air in a striking position and [Plaintiff] then started forcibly pushing [his mother's] knees and legs while yelling[,] " Fucking diaper!!" [The witness] stated [that] she is familiar with [Plaintiff] because he visits [his mother] everyday [sic] and she is aware of numerous complaints against [Plaintiff] by staff members. [The witness] stated [that] after observing the incident, she advised [a nurse manager named Wendy,] who called 911. [Gulick] placed [Plaintiff] into custody and transported [him] to [the Wallkill police station]. [Gulick] processed [Plaintiff] who was then [transferred] to [officer] Renwick for arraignment . . . . [Gulick] . . . contacted [APS] and spoke with [Defendant] Andrea Leo[,] who took the case. Judge Owen issued a stay away order of protection against [Plaintiff] protecting [his mother]. [Defendant Maniscalco,] Director of Administration [at MPRHCC] was advised. Case closed.

( Id. Exs. 3.19, 3.19-1 (Incident Report and Additional Narrative, dated June 10, 2011).) The Complaint also contains, as an attached exhibit, a deposition from Defendant Reyes, taken by Defendant Gulick the day of the incident, which was submitted in support of the Misdemeanor Information filed against Plaintiff and provides Reyes's account of the incident:

I was walking down the hallway on the 5th floor when I heard yelling, cursing[,] and what sounded like approx[imately] [three] slaps coming from one of the private residential rooms. I had passed the room so I turned back and was able to look inside the room because the door was wide open. I observed a male subject, [Plaintiff], who I am familiar with from being at the facility every day visiting his mother . . . who resides in the room. [Plaintiff's] arm was in the air in a striking position and he then started forcibly pushing [his mother's] knees and legs while cursing[,] " Fucking diaper!!" [His mother] had no pants on during the physical altercation. I never entered the room and viewed everything from the hallway. After witnessing [Plaintiff's] actions I walked away and immediately advised [a nursing manager named Wendy] and she then called 911. I am aware of numerous complaints against [Plaintiff] from the nursing staff and he's also made direct comments to me threatening physical harm to members of his family and staff members.

( Id. Ex. 3.16.1 (Supporting Deposition of Lisa M. Reyes, dated June 10, 2011).)

4. September 13, 2011

Plaintiff was arrested again on September 13, 2011. ( Id. ¶ 113.) The Complaint does not appear to allege the facts underlying this arrest, however the Court can

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glean a number of details from exhibits attached to the Complaint. On August 9, 2011, three Defendants employed by MPRHCC--Masterson, Brewster, and Small--gave statements to Defendant Solan regarding allegations of harassment against Plaintiff. First, Masterson stated that, " [i]n the past week, [her] staff ha[d] been receiving numerous phone calls from [Plaintiff]. [Plaintiff] call[ed] at all hours of the day[,] t[y]ing up [her] staff just to vent his frustrations with [her] and [Brewster] for having him arrested." ( Id. Ex. 4.5 (Masterson Statement, dated Aug. 9, 2011).) She also alleged that these phone calls " serve[d] no legitimate purpose in that all [Plaintiff] want[ed] to do [was] vent." ( Id.) She further alleged that when Plaintiff was " allowed at the facility, he would harass other visitors[,] causing a hazardous environment." ( Id.) Finally, she alleged that Plaintiff's " action[s] ha[d] left [her] and other staff in fear of their safety." ( Id.)

Second, Brewster stated that, " on [June 10, 2010], [she] was one of the nursing staff involved in an incident between [Plaintiff] and his mother." ( Id. Ex. 4.6 (Brewster Statement, dated Aug. 9, 2011).) She acknowledged that, " [s]ince the incident, [she] ha[d] not spoken with [Plaintiff]." ( Id.) However, she alleged that " numerous threats were made at [her] when other nursing staff ha[d] spoken with him," and she further alleged that, " [a]lthough the threats were not made directly to [her], [she] still [was] in fear for [her] safety and well[-]being." ( Id.)

Third, Small stated that she had received a call from Plaintiff on August 8, 2011 (the previous day) " while working at [MPRHCC]." ( Id. Ex. 4.7 (Small Statement, dated Aug. 9, 2011).) According to Small, Plaintiff " seemed very irate and rambeling [sic]" on the call. ( Id.) In this context, he told Small, " 'I know it was [Brewster] that called 911 the day I was taken into police custody. I have rights to my mother. [Brewster] and [Masterson] will pay the ultimate consequence and I can see it in my mind what I will do to you.'" ( Id.) Small then " reported the incident to [Maniscalco] . . . that day." ( Id.)

Approximately two weeks later, on August 23, Maniscalco provided to Farmingham a handwritten log of phone calls MPRHCC had received from Plaintiff since July 12, 2011, reflecting that Plaintiff had made 11 such calls. ( Id. Ex. 4.3 (note from Maniscalco to Farmingham, dated Aug. 23, 2011).) Maniscalco also gave a statement:

Since July of [2011] I have been receiving numerous phone calls from [Plaintiff]. [Plaintiff] is currently no longer allowed on the property due to an incident that occurred in June at my facility. [Plaintiff] calls me on a daily basis numerous times serving no legitimate purpose other th[a]n to vent his frustration against me banning him from the property. [Plaintiff] not only contacts me via the telephone but [he] has sent numerous fax messages to me which serves no legitimate purpose. [Plaintiff] has been advised by me numerous time[s] to stop all communication, phone and fax, and that all communications should be sent to the facilities attorney or his attorney regarding any matter that he may have. [Plaintiff] has failed to comply with my request and the constant phone calls I [b]elieve is causing annoyance and alarm for my safety. I wish to pursue charges against [Plaintiff].

( Id. Ex. 4.4 (Supporting Deposition of Vincent Maniscalco, dated Aug. 23, 2011).)

On September 13, 2011, Wallkill police arrested Plaintiff and charged him with second-degree aggravated harassment, N.Y. Penal Law § 240.30 (a Class A misdemeanor).

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( Id. Ex. 4.0 (Arrest Report, dated Sept. 13, 2011).) According to the Arrest Report, Defendant Solan was the arresting officer. ( Id.) Ultimately, the charge was later dismissed, for reasons that are not clear based on the Complaint and accompanying exhibits. ( See id. Ex. 4.9 (Certificate of Disposition, dated Oct. 18, 2011).)

5. November 10, 2011

The fifth incident discussed in Plaintiff's Complaint involves a petition for guardianship filed on August 24, 2011, and litigated at a November 10, 2011 Surrogate's Court hearing. On August 24, 2011, Defendant Sholes & Miller, on behalf of Defendant MPRHCC, filed a petition in Orange County Surrogate's Court to determine whether Plaintiff's mother should be appointed a legal guardian. ( Id. ¶ ¶ 24, 108.) The petition claimed that Plaintiff's sister, Victoria Chang (" Chang" ), sought to become her mother's legal guardian:

Petitioner is aware that [Plaintiff's mother] had designated her son, [Plaintiff], as her health care proxy. However, due to [Plaintiff's] refusal to take our calls, respond to our letters, and discuss his mother's care, and due to his assaults on his mother and orders of protection discussed below, we contacted [Plaintiff's mother's] alternate health care proxy, [Plaintiff's sister] Yolando Co. When our social worker spoke with Ms. Co by telephone on June 30, 2011, Ms. Co advised that she could not make health care decisions for her mother and wanted to be removed as her mother's alternate health care proxy. Ms. Co requested that all calls and decision making regarding her mother be directed to her sister, Victoria Chang, the eldest daughter of [Plaintiff's mother]. We then spoke with Ms. Chang regarding acting as a surrogate health care proxy pursuant to the Family Health Care Decision Act. . . .
Although [Plaintiff] claims to be his mother's power of attorney, we have not seen such a document.
Ms. Chang attended an initial care plan meeting at our facility on July 15, 2011. Ms. Chang indicated that she wanted to be in charge of her mother's health care decision making process, and also wanted her mother to reside in a nursing home closer to her own home, which is located in New Jersey.

( Id. Ex. 18 (apparent excerpt from guardianship petition).) Along with the petition, Sholes & Miller filed a number of supporting documents, including (1) a " Family Health Care Decision Information" form signed by Defendant Green and dated June 29, 2011, noting that Plaintiff's mother had an existing Health Care Proxy, that she did not have a guardian, but that she did have two daughters (Victoria Chang and Eloisa Kern), ( see id. Ex. 12); (2) a " Consent by Surrogate to DNR Order" form signed by Plaintiff (as his mother's surrogate), witnessed by Defendant Green, and dated March 31, 2011, indicating Plaintiff's consent for a physician to issue a do-not-resuscitate order (" DNR" ), ( see id. Ex. 14); (3) supporting documentation regarding the DNR consent form, ( see id. Exs. 15-17); and (4) a New Jersey police report memorializing a domestic dispute in November 2007 involving Plaintiff's mother (as the offender), Chang (as the complainant), and a third-party witness, ( see id. Ex. 19).

A judge issued an Order To Show Cause the same day the petition was filed. ( See id. Exs. 5.0, 5.0-1 (Order To Show Cause, dated Aug. 24, 2011).) Moreover, at some point, Plaintiff's mother was appointed a temporary guardian from the Orange County Department of Social Services, a " court evaluator," and an attorney from

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Mental Hygiene Legal Services, Inc. to represent her in connection with the guardianship petition. ( See id. Ex. Index No. 2011-08338 (" Guardianship Order" ) (Order & J. Appointing Guardian of the Person and Property, dated Dec. 12, 2011).) A hearing was originally scheduled to take place in October, but it was rescheduled to November 10. ( See id. Ex. 13 (Letter from Sarah E. Sholes, Esq., to Plaintiff and others (Oct. 14, 2011).)

At the hearing, Sarah Sholes (" Sholes" ), an attorney from Defendant Sholes & Miller, appeared on behalf of petitioner; the court evaluator appeared on behalf of the court; Plaintiff's mother's attorney appeared on behalf of Plaintiff's mother; and David Medford of the Orange County Attorney's Office appeared on behalf of the Orange County Department of Social Services. ( See id. Ex. 5.1 (" Hr'g Tr." ) (Hr'g Tr., dated Nov. 10, 2011).) In support of the petition, Sholes called a number of witness, including the court evaluator, and Defendants Masterson, Forman, Smalls, Farmingham, and Crain. ( See id. (Index page).) Plaintiff's mother' attorney also called a number of witnesses, including Plaintiff's mother, Chang, and Plaintiff. ( See id.) The Court was also presented with a number of exhibits, including the court evaluator' report, Plaintiff's mother's medical records, and exhibits from the Wallkill Police Department. ( See Guardianship Order 2.)

Plaintiff identifies a number of excerpts from the Hearing Transcript that are relevant to his Complaint. First, the court evaluator (who is not a party to this Action) testified regarding Plaintiff's status as Power of Attorney. After being shown a copy of a document dated November 20, 2007, wherein Plaintiff's mother appears to have granted Plaintiff power of attorney, Sholes asked the court evaluator whether he had seen that document:

A. The first I saw the power of attorney was a few minutes ago in chambers produced by the assistant county attorney.
Q. Does that power of attorney indicate that [Plaintiff] is [his mother's] power of attorney?
A. Yes. And if I was aware of this, and I had seen a copy of it, I would have requested in my report that the power of attorney be revoked immediately.
Q. And on what basis?
A. Based upon the maltreatment--the alleged maltreatment of [Plaintiff] relating to his mother, clearly identified by the several police reports that are attached to your petition. . . .

(Hr'g Tr. 9.)

Second, Defendant Masterson testified on direct examination regarding Plaintiff's treatment of his mother at MPRHCC:

Q. Are you familiar with [Plaintiff]?
A. I am.
Q. Can you tell us what your experience has been with him in terms of he and his mother since she has been at [MPRHCC]?
A. My experiences have been that he has displayed volatile actions on many occasions towards his mother, towards the staff.
Q. Can you give us some examples?
A. I can give an example as to times that he would start yelling, start cursing.
Q. At staff?
A. At staff, and also yelling about her diapers, things like that.
Q. And what would the comment about the diapers entail?
A. F'g diapers. F'g diapers.
Q. And was [Plaintiff] asked by the staff not to raise his voice and not to curse?

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A. Yes. On more than one occasion.
Q. Did he heed any of those requests?
A. No.
Q. Now, did there come a time in June of this year when a physical incident occurred between [Plaintiff] and his mother at the facility?
A. Yes.
Q. And how did you come to learn ...

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