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Phelps v. Bosco

United States District Court, N.D. New York

February 1, 2017

FREDERICK H. PHELPS, Plaintiff,
v.
MAUREEN BOSCO, Exec. Dir. of Cent. N.Y. Psychiatric Ctr; MARGARET C. DRAKE, Assist. Counsel, N.Y. State Office of Mental Health; N.Y. STATE OFFICE OF MENTAL HEALTH; N.Y. STATE DIV. OF CRIM. JUSTICE SERVS.; FED. BUREAU OF INVESTIG. CRIM. JUSTICE INFO. SERVS.; NAT'L INSTANT BACKGROUND CHECK SYS.; U.S. DEP'T OF JUSTICE; ERIC HOLDER, U.S. Att'y Gen.; and ROBERT MUELLER, III, Dir. of Fed. Bureau of Investig., Defendants.

          OLIVER LAW OFFICE Counsel for Plaintiff HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York Counsel for State Defendants U.S. DEP'T OF JUSTICE Counsel for Federal Defendants

          OF COUNSEL: LEWIS B. OLIVER, JR., ESQ. ADRIENNE J. KERWIN, ESQ. Assistant Attorney General DANIEL M. RIESS, ESQ. Trial Attorney

          DECISION AND ORDER

          Glenn T. Suddaby, Chief United States District Judge

         Currently before the Court, in this civil rights action filed by Frederick H. Phelps (“Plaintiff”) against the four above-described state employees and agencies (“the State Defendants”) and the five above-described federal employees and agencies (“the Federal Defendants”), are the following four motions: (1) the Federal Defendants' motion for summary judgment; (2) Plaintiff's cross-motion for summary judgment against the Federal Defendants; (3) the State Defendants' motion for summary judgment; and (4) Plaintiff's cross-motion for summary judgment against the State Defendants. (Dkt. Nos. 79, 81, 94.) For the reasons set forth below, the Federal Defendants' motion for summary judgment is granted; Plaintiff's cross-motion for summary judgment against the Federal Defendants is denied; the State Defendants' motion for summary judgment granted; and Plaintiff's cross-motion for summary judgment against the State Defendants is denied.

         TABLE OF CONTENTS

         I. RELEVANT BACKGROUND ............................................................................................... 4

         A. Summary of Plaintiff's Claims ................................................................................... 4

         B. Briefing of Federal Defendants' Motion for Summary Judgment ......................... 5

         1. Federal Defendants' Statement of Undisputed Material Facts .................. 5

         2. Summary of Federal Defendants' Memorandum of Law ........................... 9

         3. Summary of Plaintiff's Opposition Memorandum of Law ....................... 10

         4. Summary of Federal Defendants' Reply Memorandum of Law ...................................................................... 11

         C. Briefing of Plaintiff's Cross-Motion for Summary Judgment Against Federal Defendants ....................................... 12

         1. Plaintiff's Statement of Undisputed Material Facts (Regarding Federal Defendants) ............................................... 12

         2. Summary of Plaintiff's Memorandum of Law and the Federal Defendants' Opposition Memorandum of Law ......................................... 18

         D. Briefing of State Defendants' Motion for Summary Judgment ........................... 19

         1. State Defendants' Statement of Undisputed Material Facts ..................... 19

         2. Summary of State Defendants' Memorandum of Law ............................. 34

         3. Summary of Plaintiff's Opposition Memorandum of Law ....................... 35

         4. Summary of State Defendants' Reply Memorandum of Law .................. 36

         E. Briefing of Plaintiff's Cross-Motion for Summary Judgment Against State Defendants .......................................... 38

         1. Plaintiff's Statement of Undisputed Material Facts (Regarding State Defendants) .............................................. 38

         2. Summary of Plaintiff's Memorandum of Law and the State Defendants' Opposition Memorandum of Law ......................................... 51

         3. Summary of Plaintiff's Reply Memorandum of Law ................................ 51

         II. GOVERNING LEGAL STANDARDS ................................................................................ 52

         A. Legal Standard Governing Motion for Summary Judgment ............................... 52

         B. Legal Standards Governing Plaintiff's Claims ...................................................... 54

         III. ANALYSIS ............................................................................................................................. 55

         A. Federal Defendants' Motion for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment Against Federal Defendants .................... 55

         B. State Defendants' Motion for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment Against State Defendants ........................ 59

         I. RELEVANT BACKGROUND

         A. Summary of Plaintiff's Claims

         Following the Court's Decision and Order of March 26, 2015, the following three claims from Plaintiff's Complaint survive Defendants' prior two motions to dismiss for failure to state a claim: (1) Plaintiff's claim pursuant to 18 U.S.C. § 925A, for a judgment declaring that he has never been “committed to a mental institution” for the purpose of the relevant provision of the Federal Gun Control Act, 18 U.S.C. § 922(g)(4), and directing the National Instant Criminal Background System to remove from its records the statement that he has been so committed, to the extent that the claim (a) is asserted against the Federal Defendants and/or (b) is asserted against Defendants Drake and Bosco in their official capacities; (2) Plaintiff's claim pursuant to 18 U.S.C. § 1983, for recklessly misinterpreting the term “committed to a mental institution” under 18 U.S.C. § 922(g)(4) as including a five-day admission to the Central New York Psychiatric Center in 1996 for an evaluation pursuant to N.Y. Mental Hygiene Law § 9.37(a), in violation of his right to keep and bear arms under the Second Amendment, to the extent that the claim is asserted against Defendant Bosco in her individual capacity and requests monetary relief; and (3) Plaintiff's claim pursuant to 18 U.S.C. § 1983, for recklessly implementing a policy that fails to distinguish between an individual who has been admitted to a mental institution for an evaluation pursuant to N.Y. Mental Hygiene Law § 9.37(a) and a person who has been “committed” to such an institution within the meaning of 18 U.S.C. § 922(g)(4), in violation of his right to keep and bear arms under the Second Amendment, to the extent that the claim (a) is asserted against Defendants Drake and Bosco in their individual capacity or (b) is asserted against Defendants Drake and Bosco in their official capacities and requests injunctive relief. Phelps v. Bosco, 13-CV-1510, 2015 WL 1399051, at *12 (N.D.N.Y. March 26, 2015) (Suddaby, J.). (See also Dkt. No. 1.)

         For the sake of brevity, the Court will not summarize the factual allegations upon which these claims are based, but will respectfully refer the reader to Part I.A. of the Court's Decision and Order of March 26, 2015, which accurately summarizes those factual allegations. Phelps, 2015 WL 1399051, at *1-3.

         B. Briefing of Federal Defendants' Motion for Summary Judgment

         1. Federal Defendants' Statement of Undisputed Material Facts

         Generally, unless otherwise noted, the following facts have been found to be material by the Court, asserted and supported with accurate record citations by the Federal Defendants in their Statement of Material Facts ("Rule 7.1 Statement") and either expressly admitted by Plaintiff or denied without an accurate record citation in his response thereto ("Rule 7.1 Response"). (Compare Dkt. No. 79, Attach. 3 [Fed. Defs.' Rule 7.1 Statement] with Dkt. No. 94, Attach. 3 [Plf.'s Rule 7.1 Response].)

         1. On or about August 30, 1996, Plaintiff was admitted for examination and evaluation at the Central New York Psychiatric Center (“CNYPC”) in Marcy, New York.[1]

         2. On February 25, 2005, Michael O'Leary, Director of Community Services for Columbia County, completed an application for Plaintiff's emergency or C.P.E.P. (Comprehensive Psychiatric Emergency Program) admission to Columbia Memorial Hospital in Hudson, NY, pursuant to N.Y. Mental Hygiene Law §§ 9.41, 9.55 and 9.57, because Plaintiff “ha[d] a mental illness for which immediate care and treatment in a hospital is appropriate and which is likely to result in serious harm to him[self] or others.”[2]

         3. Later on February 25, 2005, Plaintiff was admitted to Columbia Memorial Hospital.

         4. According to a hospital admission assessment dated February 25, 2005, upon his admission to Columbia Memorial Hospital, Plaintiff “was brought in via a pick up order issued by Michael O'Leary from Columbia County Mental Health after he apparently had begun threatening public officials and had reportedly stated he had intentions of killing them this week.”[3]

         5. On February 25, 2005, Dr. Richard Tobey, a physician in the Emergency Department at Columbia Memorial Hospital, examined Plaintiff and completed a certificate in which he found, in part, that Plaintiff “is in need of involuntary care and treatment in a hospital providing inpatient services for the mentally ill” and that, “as a result of his or her mental illness, [Plaintiff] poses a substantial threat of harm to self or others.”[4]

         6. Dr. Richard Tobey also stated that Plaintiff had been given a copy of a written notice stating, in part, that (a) he has been admitted as an emergency-status patient to the hospital, (b) within forty-eight (48) hours of Plaintiff's admission he will be examined by another physician who would be a member of the hospital's psychiatric staff, and (c) if the second physician confirms the first physician's findings Plaintiff may be kept in the hospital for a total of up to fifteen (15) days from the date of his arrival.[5]

         7. Dr. Tobey further stated that Plaintiff had been given a copy of a written notice stating, in part, that (a) if he believes he does not need immediate observation, care and treatment then he (or persons acting on his behalf) may make a written request for a court hearing, (b) such a hearing will take place as soon as possible within five (5) days of the request, and (c) copies of such a request will be forwarded by the hospital director to the appropriate court and to New York's Mental Hygiene Legal Service.[6]

         8. The earlier-referenced hospital admission assessment dated February 25, 2005, was performed by Dr. Richard Plotkin, M.D.

         9. In the admission assessment, Dr. Plotkin (through Nurse Practitioner Sara Heimroth) stated, at the end of the section entitled “History of Presenting Illness, ” as follows: “In the ER, the patient continued to present as quite psychotic, unable to give clear, logical, organized thoughts or responses and in need of psychiatric stabilization.”[7]

         10. In the admission assessment, Dr. Plotkin (again, through Nurse Practitioner Heimroth) stated that Plaintiff's “Diagnosis on Admission” was “Psychotic Disorder; NOS [not otherwise stated]; PTSD [post-traumatic stress disorder]; Intermittent Explosive Disorder.”[8]

         11. In a separate document, entitled “Psychiatrist's Admitting Orders” and dated February 25, 2005, Dr. Richard Plotkin listed his “Diagnostic Impressions” as “PTSD, Intermittent Explosive DO, ” “NPD [narcissistic personality disorder]” and “Chronic mental health problems.”[9]

         12. In a Report of Consultation dated February 28, 2005, Dr. Plotkin was listed as Plaintiff's attending physician at Columbia Memorial Hospital.[10]

         13. At approximately 8:00 a.m. on February 26, 2005, Plaintiff signed a written request for a court hearing to be discharged from Columbia Memorial Hospital.

         14. At approximately 2:20 p.m. on March 4, 2005, Plaintiff signed a written withdrawal of his request for a court hearing.[11]

         15. On February 28, 2005, Dr. Plotkin consulted with Dr. Charles Johnson, a doctor of osteopathic medicine, regarding Plaintiff.

         16. In his Report of Consultation, Dr. Charles Johnson repeated the diagnosis of Plaintiff as suffering from narcissistic personality disorder and post-traumatic stress disorder.[12]

         17. On March 7, 2005, Plaintiff was discharged from Columbia Memorial Hospital.

         18. On February 21 and April 24, 2013, Plaintiff tried to purchase firearms from federal firearms licensees in New York.

         19. The federal firearms licensees from which Plaintiff tried to purchase firearms informed Plaintiff that he was ineligible to possess a firearm under the Gun Control Act.

         20. In letters to Plaintiff dated March 4 and April 30, 2013, the Federal Bureau of Investigation (“FBI”) stated that 18 U.S.C. § 922(g)(4) prohibited Plaintiff from possessing a firearm.[13]

         2. Summary of Federal Defendants' Memorandum of Law

         Generally, in their memorandum of law, the Federal Defendants argue that the Court should enter judgment for them on Plaintiff's first claim because his admission to, and involuntary retention at, Columbia Memorial Hospital for ten days in 2005 pursuant to N.Y. Mental Hygiene Law § 9.39 constituted a “commit[ment] to a mental institution” for purposes of 18 U.S.C. § 922(g)(4). (Dkt. No. 79, Attach. 2, at 10-12 [attaching page “8” through “10” of Fed. Defs.' Memo. of Law].) More specifically, the Federal Defendants argue that (1) Plaintiff's admission and retention included the procedural protections required by the Second Circuit in United States v. Waters, 23 F.3d 29 (2d Cir. 1994), and (2) New York State courts have four times referred to hospitalization pursuant to N.Y. Mental Hygiene Law § 9.39 as a “commitment.” (Dkt. No. 79, Attach. 2, at 10-12 [attaching page “8” through “10” of Fed. Defs.' Memo. of Law].)

         3. Summary of Plaintiff's Opposition Memorandum of Law

         Generally, in his opposition memorandum of law, Plaintiff argues that the Court should not enter judgment for the federal Defendants on Plaintiff's first claim, because (a) in its Decision and Order of March 26, 2015, the Court correctly held that Plaintiff's 1996 admission to the CNYPC pursuant to N.Y. Mental Hygiene Law § 9.37 was not a “commitment” within the meaning of 18 U.S.C. § 922(g)(4), and (b) Plaintiff's admission to Columbia Memorial Hospital in 2005 pursuant to N.Y. Mental Hygiene Law § 9.39 was for observation and evaluation only and thus did not constitute a “commitment” within the meaning of 18 U.S.C. § 922(g)(4). (Dkt. No. 94, Attach. 10, at 4-6 [attaching pages “4” through “6” of Plf.'s Opp'n Memo. of Law].) More specifically, Plaintiff argues that, in its Decision and Order of March 26, 2015, the Court stated that “[a]n admission pursuant to N.Y. Mental Hyg. Law § 9.39 does not appear to constitute a ‘commitment' to a mental institution for purposes of 18 U.S.C. § 922(g)(4) . . . .” (Dkt. No. 94, Attach. 10, at 4 [attaching page “4” of Plf.'s Opp'n Memo. of Law].) See also Phelps v. Bosco, 13-CV-1510, 2015 WL 1399051, at *12 (N.D.N.Y. March 26, 2015) (Suddaby, J.). Plaintiff further argues that (1) Plaintiff was never treated at Columbia Memorial Hospital, and (2) the only psychiatrist who examined him (Dr. Plotkin) discharged him five days short of the fifteen-day maximum period of retention. (Dkt. No. 94, Attach. 10, at 4-5 [attaching pages “4” and “5” of Plf.'s Opp'n Memo. of Law].)

         4. Summary of Federal Defendants Reply Memorandum of Law

         Generally, in their reply memorandum of law, the Federal Defendants repeats their argument in their memorandum of law in chief, and further assert three arguments. (Dkt. No. 97, at 2-7 [attaching pages “1” through “6” of Fed. Defs.' Reply Memo. of Law].) First, the Federal Defendants argue that, pursuant to the substantive-type of analytical approach used by the Second Circuit in United States v. Waters, 23 F.3d 29 (2d Cir. 1994), the second finding required by N.Y. Mental Hygiene Law § 9.39 need not be rendered through the use of a form certificate but need only be rendered by a psychiatrist and conclude (after examination) that the person whose admission is sought has a mental illness for which immediate observation, care, and treatment in a hospital is appropriate and which is likely to result in serious harm to himself or others. (Dkt. No. 97, at 2-4 [attaching pages “1” through “3” of Fed. Defs.' Reply Memo. of Law].) Second, the Federal Defendants argue that, because no formal judicial proceeding was required under New York State law for Plaintiff's hospitalization at Columbia Memorial Hospital, whether it used the term “admission” or a “commitment, ” N.Y. Mental Hygiene Law § 9.39 established a commitment procedure under New York State law. (Id. at 5-6 [attaching pages “4” and “5” of Fed. Defs.' Reply Memo. of Law].) Third, the Federal Defendants argue, rather than feel that he would lose a retention hearing, Dr. Plotkin felt merely that he would lose a Rivers Hearing to force Plaintiff to take antipsychotic drugs. (Id. at 7 [attaching page “6” of Fed. Defs.' Reply Memo. of Law].)[14]

         C. Briefing of Plaintiff's Cross-Motion for Summary Judgment Against Federal Defendants

         1. Plaintiff's Statement of Undisputed Material Facts (Regarding Federal Defendants)

         Generally, unless otherwise noted, the following facts have been found to be material by the Court, asserted and supported with accurate record citations by Plaintiff in his Statement of Material Facts ("Rule 7.1 Statement") and either expressly admitted by the Federal Defendants or denied without an accurate record citation in their response thereto ("Rule 7.1 Response"). (Compare Dkt. No. 94, Attach. 3 [Plf.'s Rule 7.1 Statement] with Dkt. No. 97, Attach. 1 [Fed. Defs.' Rule 7.1 Response].)

         1. On February 25, 2005, when Michael O'Leary completed an application for Plaintiff's emergency or C.P.E.P. admission to Columbia Memorial Hospital, Mr. O'Leary (who possessed his DSW and ACSW) was not a psychiatrist or a physician but a social worker.[15]

         2. Plaintiff was never examined by Mr. O'Leary in February 2005.[16]

         3. On February 25, 2005, Plaintiff was picked up by law enforcement officers pursuant to Mr. O'Leary's application and was brought to Columbia Memorial Hospital.[17]

         4. On February 25, 2005, Plaintiff was subjected to examination at Columbia Memorial Hospital pursuant to N.Y. Mental Hygiene Law § 9.39.

         5. A director of any hospital identified under N.Y. Mental Hygiene Law § 9.39 “may receive and retain therein as a patient for a period of fifteen (15) days any person alleged to have a mental illness for which immediate observation, care, and treatment in a hospital is appropriate and which is likely to result in serious harm to himself or others. . . .”[18]

         6. The director of the hospital shall admit such person for immediate observation, care, and treatment “only if a staff physician of the hospital upon examination of such person finds that such person qualifies under the requirements of [N.Y. Mental Hygiene Law § 9.39].”[19]

         7. On February 25, 2005, Dr. Richard Tobey, a physician in the emergency room at Columbia Memorial Hospital, examined Plaintiff and completed forms entitled, “Emergency Admission [Pursuant to] Section 9.39 [of the New York] Mental Hygiene Law” and “Certificate of Examining Physician to Support an Application for Involuntary Admission.”

         8. Dr. Tobey also stated that, at the time of admission (which occurred at 4:15 p.m. on February 25, 2005), Plaintiff was given a copy of a document entitled, “Notice of Status and Rights [Upon] Emergency Admission . . . [Pursuant to] Section 9.39 [of the New York] Mental Hygiene Law.” 9. At 8:00 a.m. on February 26, 2005, Plaintiff requested a court hearing to be discharged from Columbia Memorial Hospital.

         10. If a person admitted according to N.Y. Mental Hygiene Law § 9.39 is to be retained in the hospital for a period of more than forty-eight hours, then (within that forty-eight hour period) “another physician who shall be a member of the psychiatric staff of the hospital” must examine the person and confirm that he or she “qualifies under the requirements of [N.Y. Mental Hygiene Law § 9.39].”[20] In addition, the “Emergency Admission” form completed by Dr. Tobey (which is labeled as a form of the New York State Office of Mental Health) states, in pertinent part, that the aforementioned confirmation must be performed by completing [the Certificate of Examining Physician to Support an Application for Involuntary Admission].”[21]

         11. On February 25, 2005, Dr. Richard Plotkin performed an admission assessment of Plaintiff.[22]

         12. There is no admissible record evidence establishing that Dr. Plotkin completed the form entitled, “Certificate of Examining Physician to Support an Application for Involuntary Admission.”[23]

         13. If at any time after admission according to N.Y. Mental Hygiene Law § 9.39, the patient gives notice to the director in writing of a request for court hearing on the question of need for immediate observation, care, and treatment, a hearing shall be held as herein provided not more than five (5) days after such request is received (except that the commencement of such hearing may be adjourned at the request of the patient).[24]

         14. Upon the date of such hearing, the court shall hear testimony and examine the person alleged to be mentally ill, and shall render a decision in writing that there is reasonable cause to believe that the patient has a mental illness for which immediate inpatient care and treatment in a hospital is appropriate and which is likely to result in serious harm to himself or others.[25]

         15. If the court determines there is a such reasonable cause, the court shall issue an order authorizing the retention of the person in the hospital for observation, care and/or treatment for a period not to exceed fifteen (15) days from the date of the admission. Any such order entered by the court shall not be deemed an adjudication that the patient is mentally ill, but only a determination that there is reasonable cause to retain the person for the purposes of N.Y. Mental Hygiene Law § 9.39.[26]

         16. Within fifteen (15) days of admission, if a determination is made that the person is not in need of involuntary care and treatment, he or she shall be discharged unless he or she agrees to remain as a voluntary or informal patient. If the person is in need of involuntary care and treatment and does not agree to remain as a voluntary or informal patient, he or she may be retained beyond the fifteen (15) day period only by admission to such hospital (or another appropriate hospital) pursuant to “the provisions governing involuntary admission on application supported by medical certification and subject to the provisions for notice, hearing, review, and judicial approval of retention or transfer and retention governing such admissions, ” i.e., N.Y. Mental Hygiene Law § 9.27.[27]

         17. There is no admissible record evidence that either Dr. Tobey or Dr. Charles Johnson was a psychiatrist on the staff of Columbia Memorial Hospital in February 2005; and, in any event, the report of consultation dated February 28, 2005, was never signed personally by Dr. Johnson but was signed by a nurse practitioner, Christine Byrnes, for Dr. Johnson.[28]

         18. On March 8, 2005, Dr. Plotkin's issued a discharge summary stating, in part, that Plaintiff was “entirely cooperative throughout the hospitalization with the exception of refusing to eat for the first week.” The discharge summary also stated, in part, that “no psychotropic medications were employed during the hospitalization.”[29]

         19. Dr. Plotkin's discharge summary listed Plaintiff's “Discharge Diagnosis” as, in part, “[d]elusional disorder, persecution type, ” and “[d]iscordant relationships with government officials.”[30]

         20. In his discharge summary, Dr. Plotkin stated, in part, that “I saw no florid symptoms of psychosis otherwise nor did the patient display any PTSD. Intermittent explosive disorder may be considered as well as the patient clearly has periods of explosivity with irrational behavior at times although none of these were observed on our Psychiatric Unit.”[31]

         21. Dr. Plotkin felt that he would lose a Rivers Hearing to force Plaintiff to take antipsychotic drugs; furthermore, on March 4, 2005, a male doctor at Columbia Memorial Hospital (possibly Dr. Plotkin) told Plaintiff that he was going to discharge Plaintiff to the Columbia County Jail before there would be a court hearing, and he suggested that Plaintiff withdraw his request for a hearing.[32]

         22. After being advised that he would be discharged, at 2:20 p.m. on March 4, 2005, Plaintiff withdrew his request for a court hearing concerning his hospitalization at Columbia Memorial Hospital.[33]

         23. On March 7, 2005, Plaintiff was discharged from Columbia Memorial Hospital.[34]

         2. Summary of Plaintiff's Memorandum of Law and the Federal Defendants' Opposition Memorandum of Law

         Generally, Plaintiff's memorandum of law and the Federal Defendants' opposition memorandum of law assert the arguments summarized above in Parts I.B.3., and I.B.4. of this Decision and Order.

         D. Briefing of State Defendants' Motion for Summary Judgment

         1. State Defendants' Statement of Undisputed Material Facts

         Generally, unless otherwise noted, the following facts have been found to be material by the Court, asserted and supported with accurate record citations by the State Defendants in their Statement of Material Facts ("Rule 7.1 Statement") and either expressly admitted by Plaintiff or denied without a specific supporting record citation in his response thereto ("Rule 7.1 Response"). (Compare Dkt. No. 81, Attach. 9 [State Defs.' Rule 7.1 Statement] with Dkt. No. 94, Attach. 2 [Plf.'s Rule 7.1 Response].)

         Involvement of Maureen Bosco and Margaret Drake

         1. In or about 2009, as part of her duties as Senior Attorney in the Counsel's Office at the New York State Office of Mental Health (“OMH”), Margaret Drake typed up a list of codes to be used as a guide for OMH employees when determining if a hospital admission was an involuntary commitment under federal law that had to be reported to the National Instant Criminal Background System (“NICS”). The information concerning what New York State statutory commitment to include in the guide was relayed to her by John Tauriello, OMH Deputy Commissioner and General Counsel at the time. She had no involvement in determining OMH policy as to what codes to include on the list, or in determining what types of hospital admissions had to be reported to NICS. Nor did she have the authority to change the list.[35]

         2. Maureen Bosco no longer works for OMH.

         3. Ms. Bosco never set OMH policy as to what admissions get reported for inclusion in NICS.

         4. Margaret Drake had no involvement in creating Plaintiff's 1996 Central New York Psychiatric Center (“CNYPC”) record.

         5. Ms. Drake had no involvement in determining the OMH policy pursuant to which Plaintiff's 1996 CNYPC record was sent for inclusion in NICS in 2009.[36]

         6. Ms. Drake did not have the authority to alter, or direct an alteration of, Plaintiff's medical record from the CNYPC.[37]

         7. Ms. Drake could not, and did not, determine if an OMH record should be removed from NICS.[38]

         8. Ms. Drake has no legal authority to remove Plaintiff's 1996 OMH record from NICS.[39]

         9. Maureen Bosco had no involvement in creating Plaintiff's 1996 CNYPC record.

         10. Ms. Bosco had no involvement in deciding to send Plaintiff's 1996 CNYPC record for inclusion in NICS in 2009.

         11. Ms. Bosco had no authority to change Plaintiff's 1996 medical records or the report that was made to OMH regarding him.

         12. Ms. Bosco could not, and did not, determine if an OMH record should be included in, or removed from, NICS.[40]

         13. Ms. Bosco has no authority to remove Plaintiff's 1996 OMH record from NICS.

         14. The Executive Director of CNYPC cannot, and does not, determine if an OMH record should be included in, or removed from, NICS.

         15. In 2013, as Executive Director of CNYPC, Maureen Bosco received a message from a member of her staff that Plaintiff had called the CNYPC seeking his records.

         16. Ms. Bosco called Plaintiff who informed her that he had requested his records and that he had been denied the ability to purchase a gun based on information that he thought Ms. Bosco had provided to the FBI.

         17. However, Ms. Bosco had never provided any information about Plaintiff, or anyone else, to the FBI.

         18. During that telephone call, Plaintiff asked Ms. Bosco to put in writing that Plaintiff had never been committed to the CNYPC.

         19. Ms. Bosco told Plaintiff that she could not do so if he had, in fact, been involuntarily admitted to the CNYPC.

         20. The telephone call lasted ten minutes or less.

         21. Based on her review of Plaintiff's CNYPC records, Ms. Bosco sent Plaintiff a letter dated July 12, 2013.[41]

         22. Ms. Bosco had no further involvement with Plaintiff.[42]

         23. During several telephone conversations with Plaintiff over a couple of months, Margaret Drake told him that his admission to the CNYPC in 1996 was an involuntary commitment.[43]

         24. Also during these telephone conversations, Ms. Drake told Plaintiff that he could use the certificate-of-relief process and how to use it.[44]

         25. In fact, in March 2013 and again on May 17, 2013, Ms. Drake sent a letter to Plaintiff enclosing the application for a certificate of relief with instructions on what documentation must accompany the application.

         26. In May 2013, OMH received an application for a certificate of relief from Plaintiff without the required accompanying documentation.

         27. Ms. Drake then sent a letter to Plaintiff dated May 31, 2013, informing him that his application was incomplete and identifying the information that he needed to submit.

         28. Plaintiff never provided the required information and, therefore, never completed the application process.

         29. In response to a letter from Plaintiff's attorney, Ms. Drake sent the attorney a letter dated September 6, 2013, explaining why (she believed that) Plaintiff's 1996 admission to the CNYPC was an involuntary commitment for purposes of 18 U.S.C. § 922(g)(4), and again telling him that he could use certificate-of-relief process.[45]

         Plaintiff's 1996 Admission to CNYPC

         30. On July 22, 1996, Plaintiff was placed into the Columbia County Jail and held on charges of assault in the second degree, harassment and resisting arrest for allegedly “kicking the sheriff.”[46]

         31. As of August 30, 1996, Plaintiff had not ingested any food or ...


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