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McKay v. State

United States District Court, W.D. New York

February 26, 2018

DONNA MCKAY, Plaintiff,




         Plaintiff Donna McKay brings this action pursuant to 18 U.S.C. § 925A and 42 U.S.C. § 1983 against Defendant State of New York (“the State”) for erroneous reporting to the National Instant Criminal Background Check System (“NICS”) and alleged constitutional violations. See ECF No. 1. Specifically, Plaintiff invokes the Sixth and Fourteenth Amendments to assert a right to counsel for indigent litigants in license hearings related to mental health, and she invokes the Fourteenth Amendment to assert a right to notification of NICS reporting by the State.

         Plaintiff filed her Complaint on December 21, 2016. Id. On March 7, 2017, the State moved to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1)[1] and 12(b)(6). ECF No. 7. Plaintiff responded on May 12, 2017 and filed an accompanying Cross-Motion for Summary Judgment. ECF No. 10. For the reasons that follow, the State's Motion to Dismiss (ECF No. 7) is GRANTED, and Plaintiff's Cross-Motion for Summary Judgment (ECF No. 10) is DENIED AS MOOT.


         On or about April 7, 2015, [3] Plaintiff sought voluntary admission to the mental health unit of Soldiers & Sailors Memorial Hospital. Her stay lasted less than twelve hours-she sought treatment for an adverse reaction to cough medicine, and she left the next day, when she felt better. At the time of her admission, Plaintiff confirmed that she had firearms in her house. Upon learning that information, the treating physician reported Plaintiff's stay to the State, pursuant to his understanding of New York's Secure Ammunition and Firearms Enforcement (“SAFE”) Act, N.Y. Mental Hyg. Law § 9.46(b).

         Following the treating physician's report, on April 13, 2015, the New York State Police issued a letter stating that Plaintiff had been involuntarily committed and was therefore barred from possessing firearms under federal law. The same day, the State Police sent that letter to the Yates County Clerk's Office, which matched the letter with the record of Plaintiff's pistol permit. Those documents were then provided to the Hon. W. Patrick Falvey, Yates County Court Judge, who issued an “Order to Show Cause and Interim Order” on April 14, 2015. The order suspended Plaintiff's pistol permit and directed the Yates County Sheriff to confiscate her firearms. During this time, Plaintiff's information was also transmitted to the NICS.

         Pursuant to Judge Falvey's order, on April 15, 2015, officers from the Yates County Sheriff's Department went to Plaintiff's home. They showed her the order, informed her that she would have to appear in court, and confiscated her firearms. In response, Plaintiff hired an attorney, whom she retained through the first portion of her proceedings. She obtained different counsel in January 2016, when she hired her current attorney. Ultimately, the court determined that Plaintiff had been voluntarily admitted to the hospital, and that there was no good cause to revoke her pistol permit. Accordingly, it ordered Plaintiff's permit reinstated and her firearms returned. See In re McKay, 34 N.Y.S.3d 354, 359 (Yates Cty. Ct. 2016); Order of Reinstatement (Yates Cty. Ct. June 7, 2016).


         I. Nature of the State's Motion

         In form, the State's motion is brought “pursuant to Rule 12(b)(6).” ECF No. 7, at 1. In substance, it addresses the sufficiency of the Complaint, but it also challenges standing, asserts mootness, and invokes Eleventh Amendment immunity.[4] See Id. While the concepts of standing and mootness are distinct from that of subject-matter jurisdiction, see, e.g., All. for Envtl. Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 87-88 n.6 (2d Cir. 2006), they bear on whether such jurisdiction exists, see John v. Whole Foods Mkt. Grp., Inc., 858 F.3d 732, 735 (2d Cir. 2017) (discussing standing); Doyle v. Midland Credit Mgmt., Inc., 722 F.3d 78, 80 (2d Cir. 2013) (discussing mootness). The proper vehicle for challenging standing or asserting mootness is thus a Rule 12(b)(1) motion to dismiss. See Alliance, 436 F.3d at 87-88 n.6 (addressing the practice of “sometimes” bringing standing challenges under Rule 12(b)(6)). Given the State's arguments regarding standing and mootness, the Court construes its Motion to also be brought under Rule 12(b)(1). See, e.g., Evans v. Port Auth. of N.Y. & N.J., No. 15-CV-3942 (MKB), 2017 WL 3396444, at *1 n.2 (E.D.N.Y. Aug. 8, 2017) (“Although the [defendant] does not expressly move to dismiss under Rule 12(b)(1), it moves to dismiss for lack of standing, and the Court therefore construes its motion as one pursuant to Rule 12(b)(1) in addition to Rule 12(b)(6).”); Cortlandt St. Recovery Corp. v. Deutsche Bank AG, No. 12 Civ. 9351(JPO), 2013 WL 3762882, at *1 n.1 (S.D.N.Y. July 18, 2013) (adopting the same approach).

         II. Motion to Dismiss Under Rule 12(b)(1)

         A Rule 12(b)(1) motion is the proper channel for dismissal “when the district court lacks the statutory or constitutional power to adjudicate” a matter. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). “At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice” to establish standing. See Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56 (2d Cir. 2016) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). However, where a defendant brings a fact-based Rule 12(b)(1) motion, “proffering evidence beyond the [complaint], ” the plaintiff must respond with evidence to controvert any factual issues raised regarding subject-matter jurisdiction. See Id. at 57. Necessarily, then, a district court considering a Rule 12(b)(1) motion “may consider evidence outside the pleadings.” See Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008). If the evidence proffered “does not contradict plausible allegations that are themselves sufficient to show standing, ” a plaintiff may simply rely on the allegations in its complaint. Carter, 822 F.3d at 57. Issues raised in a Rule 12(b)(1) motion should be resolved first, since a court must confirm that it has subject-matter jurisdiction before proceeding to the merits of a claim. See Rhulen Agency, Inc. v. Ala. Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990); SEC v. Rorech, 673 F.Supp.2d 217, 220-21 (S.D.N.Y. 2009).

         III. Motion to Dismiss ...

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