Since the beginning of 2015, when I discovered my firearm disability (i.e., 18 U.S.C. § 922(g)(4)), I've communicated with Mary Clare Ehde-- St. Joseph’s Hospital Health Center (SJHHC's manager) at the Office of "Patient Experience." I tried to come to a fair, agreeable pre-lawsuit settlement in order to avoid having to file the civil lawsuit, but St. Joseph’s Hospital Health Center (SJHHC) and the defendants have so far refused to budge. Below, I have enclosed letters that I wrote to SJHHC and the defendants, proposing a reasonable settlement in order to avoid a lawsuit, and to avoid burdening the federal court system. I've also enclosed the replies I received from SJHHC.

Below, I have enclosed rulings and opinions of the U.S. District Court and the Magistrate Court. I have also enclosed the motions/memoranda/briefs of the opposing parties and their attorneys.

UMESH HEENDENIYA,
Plaintiff,

v.                                                    5:15-CV-1238 (GTS/TWD)

ST. JOSEPH’S HOSP. HEALTH CTR. (SJHHC); ROGER GARY LEVINE, MD; LISA MARIE O’CONNOR, MD; GEORGE E. TREMITI, MD; HORATIUS ROMAN, MD; JOANNE MARY FRENCH, RN; WENDY BRISCOE, RN; SUSAN LYNN CATE, LMFT; ROSALINE SPUNELKA, RN; ROBERT MICHAEL CONSTANTINE, MD; MITCHELL BRUCE FELDMAN, MD; CYNTHIA A. RYBAK, NP; KATHRYN HOWE RUSCITTO, President and CEO of SJHHC; LOWELL A. SEIFTER, JD, Senior VP and Gen. Counsel of SJHHC; MEREDITH PRICE, VP of Fin. Servs. and CFO of SJHHC; DEBORAH WELCH, VP for People at SJHHC; GAEL GILBERT, RN and Dir. of SJHHC’s Psychiatric Ward;  SJHHC DOES 1-5, Inclusive;NEW YORK STATE OFFICE OF MENTAL HEALTH (OMH); ANN MARIE T. SULLIVAN, M.D., Comm’r of OMH; JOSHUA BENJAMIN PEPPER, ESQ., Deputy Comm’r and Counsel; NEW YORK STATE DIV. OF CRIM. JUSTICE SERVS. (DCJS); MICHAEL C. GREEN, Exec. Deputy Comm’r of DCJS; ERIC T. SCHNEIDERMAN, ESQ., New York State Atty. Gen.; U.S. DEP’T OF JUSTICE; LORETTA E. LYNCH, Atty. Gen. of the United States; FED. BUR. OF INVESTIGATION (FBI); JAMES B. COMEY, JR., Dir. of the FBI; BUREAU OF ALCOHOL, TOBACCO, FIREARMS and EXPLOSIVES (ATF); THOMAS E. BRANDON, Dir. of the ATF; NAT’L INSTANT BACKGROUND CHECK SYS. (NICS); UNITED STATES OF AMERICA; REGINA LOMBARDO, Special Agent in Charge (SAC) of ATF’s Tampa, FL Office; PAUL WYSOPAL, Special Agent in Charge (SAC) of FBI’s Tampa Office; and FED. DOES 1-5,
Defendants.
___________________________________________________________________________________

APPEARANCES:
UMESH HEENDENIYA
Plaintiff, Pro Se
P.O. Box 5104
Spring Hill, Florida 34611

GLENN T. SUDDABY, Chief United States District Judge

Currently before the Court, in this pro se action filed by Umesh Heendeniya  (“Plaintiff”) against the forty-three above-captioned entities and individuals (“Defendants”) pursuant to, inter alia, 42 U.S.C. § 1983 and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) (“Bivens”) arising out of 18 U.S.C. § 922(g)(4)’s alleged prohibition on Plaintiff’s ability to receive a firearm shipped in interstate or foreign commerce as a result of his involuntary commitment to a psychiatric ward, are the following: (1) United States Magistrate Judge Thérèse Wiley Dancks’ Report-Recommendation recommending that Plaintiff’s Complaint be sua sponte dismissed (in part with prejudice and in part without prejudice) pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); (2) Plaintiff’s motion for reconsideration of the Report-Recommendation; (3) Plaintiff’s Objections to the Report-Recommendation; (4) Plaintiff’s motion to amend his Objections to the Report-Recommendation; (5) Plaintiff’s motion to enlarge the time for service of process; (6) Plaintiff’s first motion to amend his Complaint; (7) Plaintiff’s motion to withdraw his first motion to amend his Complaint; and (8) Plaintiff’s second motion to amend his Complaint.  (Dkt. Nos. 6, 13, 14, 15, 16, 17, 18, 19.)

For the reasons set forth below, Plaintiff’s motion for reconsideration of the Report- Recommendation is denied; Plaintiff’s motion to amend his Objections to the Report- Recommendation is granted; Plaintiff’s Objections to the Report-Recommendation are rejected; Magistrate Judge Dancks’ Report-Recommendation is accepted and adopted in its entirety; the claims asserted in Plaintiff’s Complaint are either dismissed with prejudice or conditionally dismissed as explained below in this Decision and Order; Plaintiff’s motion to enlarge the time
for service of process is denied without prejudice to renewal before Magistrate Judg Dancks after she has determined whether he has, in his Amended Complaint, corrected the pleading defects identified in her Report-Recommendation; Plaintiff’s motion to withdraw his first motion to amend his Complaint is granted; Plaintiff’s first motion to amend his Complaint is deemed withdrawn; and Plaintiff’s second motion to amend his Complaint is denied without prejudice.

I.         RELEVANT BACKGROUND

A.        Magistrate Judge Dancks’ Report-Recommendation

Because this Decision and Order is primarily intended for the review of the parties, the Court will assume the reader’s familiarity with the specifics of Magistrate Judge Danck’s Report-Recommendation, including which entities and individuals constitute each of the three groups of Defendants in this action: (1) the St. Joseph’s Defendants, (2) the New York State Defendants,
and (3) the Federal Defendants.

Generally, in her Report-Recommendation, Magistrate Judge Dancks determined that Plaintiff’s Complaint should be sua sponte dismissed in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).  More specifically, Magistrate Judge Dancks made the following ten recommendations: (1) that Plaintiff’s § 1983 claims against the St. Joseph’s Defendants be dismissed with prejudice for failure to state a claim; (2) that Plaintiff’s state law claims against the St. Joseph’s Defendants be dismissed without prejudice for lack of subject-matter jurisdiction;1 (3) that Plaintiff’s § 1983 claims against the New York State Defendants be

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1                       The Court construes the Report-Recommendation’s recommendation of a dismissal of certain claims without prejudice to refiling in this Court to mean a conditional dismissal of those claims with prejudice, i.e., a dismissal of those claims with prejudice if the defects identified in them are not corrected in an Amended Claims filed in this Court during the pendency of this action. The Court so construes the Report-Recommendation because the dismissal of the Complaint in its entirety before the filing of an Amended Complaint would deprive the Court of jurisdiction to consider the Amended Complaint; similarly, the dismissal of any portion of the Complaint without prejudice to refiling in another action in this Court would unnecessarily duplicate this action.
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dismissed with prejudice for failure to state a claim; (4) that Plaintiff’s state law tort claims seeking money damages against the New York State Defendants be dismissed with prejudice based on the Eleventh Amendment; (5) that Plaintiff’s Bivens claims against the Federal Defendant in their official capacities be dismissed with prejudice based on sovereign immunity; (6) that Plaintiff’s Bivens claims against Defendants Lombardo and Wysopal in their individual capacities be dismissed without prejudice for failure to state a claim; (7) that Plaintiff’s claim for a declaratory judgment against all Federal Defendants regarding 18 U.S.C. § 922(g)(4) (e.g., that the statute violates his rights under the Second and Fifth Amendments and that the statute does not apply to involuntary commitments under N.Y. Mental Hygiene Law § 9.27) be dismissed with prejudice for failure to state a claim; (8) that Plaintiff’s state law tort claims against the federal agency Defendants and the individual Federal Defendants (except for Defendants Lombardo and Wysopal) sued in their official capacities be dismissed with prejudice; (9) that Plaintiff’s state law tort claims against Defendants Lombardo and Wysopal be dismissed without prejudice for lack of subject-matter jurisdiction; and (10) that Plaintiff’s state law tort claims against the United States be dismissed without prejudice for failure to exhaust his administrative remedies under the FTCA.  (Dkt. No. 6, at Part IV.)

Generally, in his Objections (and Amended Objections), Plaintiff argues that the Court should reject the Report-Recommendation for 16 reasons:2 (1) Magistrate Judge Dancks erred in finding that Plaintiff’s state law claims against the St. Joseph’s Defendants should be dismissed

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2                       The Court has combined Plaintiff’s third and eighth challenges, which it finds are largely redundant of each other.
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without prejudice, because (a) those claims are legally sufficient and (b) dismissing them without prejudice would effectively preclude him from refiling them due to the governing statute of limitations; (2) despite that Plaintiff nowhere alleged that he had been involuntarily committed (but admitted), Magistrate Judge Dancks erred in finding that he had been involuntarily committed; (3) because Plaintiff is proceeding pro se, the Court should grant him an opportunity to amend his Complaint to cure its legal deficiencies, which he can easily do; (4) Magistrate Judge Dancks erred in finding that the St. Joseph’s Defendants provided Plaintiff with paperwork during his involuntary state at the psychiatric ward when (in Paragraph 102 of his Complaint) he alleges they did not; (5) to the extent that various of Plaintiff’s claims are barred by sovereign immunity and the Eleventh Amendment, Plaintiff should be permitted to amend those claims so that they seek only injunctive and/or declaratory relief; (6) Plaintiff can correct the defects in his claims arising from diversity jurisdiction by discontinuing his claims against the non-diverse Defendants and by alleging damages in excess of $75,000; (7) it is fundamentally unfair to require Plaintiff to allege the personal involvement of the Federal Defendants in order to seek injunctive and/or declaratory relief from them; (8) when the Supreme Court spoke of the “mentally ill” in D.C. v. Heller, 554 U.S. 570 (2008), it was referring to mental disorders more serious than those that afflict Plaintiff; (9) Magistrate Judge Dancks erred in finding that the Equal Protection Clause has been held not to protect the Second Amendment rights of those who are allegedly prohibited under 18 U.S.C. § 922(g)(4); (10) Magistrate Judge Dancks erred in finding that SAC Regina Lombardo works for the FBI (when in fact Plaintiff has alleged that she works for the ATF), and in finding that Plaintiff alleged that Dr. Levine did not personally examine him during his stay at the psychiatric ward; (11) Magistrate Judge Dancks erred in granting him in forma pauperis status “solely for the purpose of [her] review” of his Complaint; (12) Magistrate Judge Dancks erred in finding that his state law claims against the St. Joseph’s Defendants fail to state a claim because Plaintiff should be allowed to amend them; (13) Magistrate Judge Dancks erred in finding that he failed to allege facts plausibly suggesting that the New York State Defendants were acting within the scope of their employment; (14) Magistrate Judge Dancks erred in finding that his Bivens claims against all Federal Defendants should be dismissed, because he can correct those claims; (15) Magistrate Judge Dancks erred in finding that most of his claims against the Federal Defendants and New York State Defendants should be dismissed with prejudice, because Plaintiff can correct those claims; and (16) Magistrate Judge Dancks erred in finding that Plaintiff has failed to state a claim of declaratory judgment regarding 18 U.S.C. § 922(g)(4), because it is hard to fathom that in 1791 the Founders considered ex-soldiers displaying symptoms of post-traumatic stress disorder as being prohibited from having firearms for self-defense in their homes. (Dkt. Nos. 14, 15.)

A.       Legal Standard Governing Review of a Report-Recommendation When a specific objection is made to a portion of a magistrate judge's report- recommendation, the Court subjects that portion of the report-recommendation to a de novo review.  Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C).  To be “specific,” the objection must, with particularity, “identify [1] the portions of the proposed findings, recommendations, or report to which it has an objection and [2] the basis for the objection.”  N.D.N.Y. L.R. 72.1(c).3

When performing such a de novo review, “[t]he judge may . . . receive further evidence. . .  .”   28 U.S.C. § 636(b)(1).  However, a district court will ordinarily refuse to consider evidentiary material that could have been, but was not, presented to the magistrate judge in the first instance.4  Similarly, a district court will ordinarily refuse to consider argument that could have been, but was not, presented to the magistrate judge in the first instance.  See Zhao v. State Univ. of N.Y., 04-CV-0210, 2011 WL 3610717, at *1 (E.D.N.Y. Aug. 15, 2011) (“[I]t is established law that a district judge will not consider new arguments raised in objections to a magistrate judge's report and recommendation that could have been raised before the magistrate but were not.”) (internal quotation marks and citation omitted); Hubbard v. Kelley, 752 F. Supp.2d 311,

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3                       See also Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (“Although Mario filed objections to the magistrate's report and recommendation, the statement with respect to his Title VII claim was not specific enough to preserve this claim for review. The only reference made to the Title VII claim was one sentence on the last page of his objections, where he stated that it was error to deny his motion on the Title VII claim ‘[f]or the reasons set forth in Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment.’ This bare statement, devoid of any reference to specific findings or recommendations to which he objected and why, and unsupported by legal authority, was not sufficient to preserve the Title VII claim.”).

4                       See Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) (“In objecting to a magistrate's report before the district court, a party has no right to present further testimony when it offers no justification for not offering the testimony at the hearing before the magistrate.”) [internal quotation marks and citations omitted]; Pan Am. World Airways, Inc. v. Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n.3 (2d Cir. 1990) (finding that district court did not abuse its discretion in denying plaintiff's request to present additional testimony where plaintiff “offered no justification for not offering the testimony at the hearing before the magistrate”); cf. U. S. v. Raddatz, 447 U.S. 667, 676, n.3 (1980) (“We conclude that to construe § 636(b)(1) to require the district court to conduct a second hearing whenever either party objected to the magistrate's credibility findings would largely frustrate the plain objective of Congress to alleviate the increasing congestion of litigation in the district courts.”); Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition (“The term ‘de novo’ does not indicate that a secondary evidentiary hearing is required.”).
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312-13 (W.D.N.Y. 2009) (“In this circuit, it is established law that a district judge will not consider new arguments raised in objections to a magistrate judge's report and recommendation that could have been raised before the magistrate but were not.”) (internal quotation marks omitted).

When only a general objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review.  Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition; see also Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999).  Similarly, when an objection merely reiterates the same arguments made by the objecting party in its original papers submitted to the magistrate judge, the Court subjects that portion of the report-recommendation challenged by those arguments to only a clear error review.5   Finally, when no objection is made to a portion of a report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review.  Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition.  When performing such a “clear error” review, “the court need only satisfy itself that there is no clear error on the face of the record in

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5                       See Mario, 313 F.3d at 766 (“Merely referring the court to previously filed papers or arguments does not constitute an adequate objection under either Fed. R. Civ. P. 72(b) or Local Civil Rule 72.3(a)(3).”); Camardo v. Gen. Motors Hourly-Rate Emp. Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992) (explaining that court need not consider objections that merely constitute a "rehashing" of the same arguments and positions taken in original papers submitted to the magistrate judge); accord, Praileau v. Cnty. of Schenectady, 09-CV-0924, 2010 WL 3761902, at *1, n.1 (N.D.N.Y. Sept. 20, 2010) (McAvoy, J.); Hickman ex rel. M.A.H. v. Astrue, 07-CV-1077, 2010 WL 2985968, at *3 & n.3 (N.D.N.Y. July 27, 2010) (Mordue, C.J.); Almonte v. N.Y.S. Div. of Parole, 04-CV-0484, 2006 WL 149049, at *4 (N.D.N.Y. Jan. 18, 2006) (Sharpe, J.).
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order to accept the recommendation.”  Id.6

After conducting the appropriate review, the Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”  28 U.S.C. § 636(b)(1)(C).

After carefully reviewing the relevant papers herein, including Magistrate Judge Dancks’ thorough Report-Recommendation, the Court can find no error in those parts of the Report- Recommendation to which Plaintiff has specifically objected, and no clear error in the remaining parts of the Report-Recommendation: Magistrate Judge Dancks employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts.  As a result, the Report-Recommendation is accepted and adopted in its entirety for the reasons stated therein. To those reasons, the Court adds six points.

First, given the legal analysis (and “Blue Booked” citations) contained in Plaintiff’s numerous memoranda of law, the Court doubts that he is actually proceeding pro se in this action sufficient to warrant an extension of special solicitude (rendering his repeated representations of

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6                       See also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's] report to which no specific objection is made, so long as those sections are not facially erroneous.”) (internal quotation marks and citations omitted).
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that fact both false and material);7 however, the Court will assume he is proceeding pro se for the sake of brevity.

Second, Plaintiff argues that the written notice attached to his Complaint (informing of his right to a court hearing and counsel) was received by him only after his stay at the psychiatric ward.  (Dkt. No. 14, at ¶ 4.)  The problem is that the notice contains a staff physician’s signature confirming that Plaintiff had been provided with a copy of the notice.  (Dkt. No. 1, Attach. 7, at 6.)  In his Objections, Plaintiff does not point to any portion of his Complaint in which he alleges facts plausibly suggesting that the physician’s signature was fraudulent.  (Dkt. No. 14, at ¶ 4.) Rather, he appears to argue that his own signature should have been required.  (Id.)  However, such a requirement does not appear to be contained in N.Y. Mental Hygiene Law §§ 9.27 or 9.29.

Third, Plaintiff’s motion for reconsideration (which was not expressly submitted to Magistrate Judge Dancks) is denied on each of the following three grounds: (1) it is improper in that the only Order issued by Magistrate Judge Dancks was her Order granting his motion to proceed in forma pauperis, but he is not challenging that Order; (2) the procedural mechanism for challenging a Report-Recommendation is an Objection, which he pursued, and which is redundant of the relief requested by his motion for reconsideration; and (3) the motion is unsupported by a showing of cause.

Fourth, Plaintiff’s motion to amend his Objections to the Report-Recommendation is granted.  Although Plaintiff had previously been given a generous extension of time in which to

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7                       The Court notes that such an offense would also appear to implicate his “ghostwriting” attorney, given the existence of Fla. Bar Op. 79-7 (2000) (“[P]leadings or other papers prepared by an attorney and filed with the court on behalf of a pro se litigant must indicate ‘Prepared with Assistance of Counsel.’”).
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file all of his Objections, and although his proposed Amended Objections are somewhat redundant of his original Objections, the Court has carefully considered them in reviewing the Report-Recommendation.

Fifth, Plaintiff’s motion to enlarge the time for service of process is denied without prejudice as premature.  Plaintiff may renew his motion before Magistrate Judg Dancks after she has determined whether he has, in his Amended Complaint, corrected the pleading defects identified in her Report-Recommendation.

Sixth, Plaintiff’s second motion to amend his Complaint is denied on each of the following three grounds: (1) by her Text Orders of December 21 and 29, 2015, Magistrate Judge Dancks denied Plaintiff’s motion for an extension of time in which to file a motion to amend without prejudice to renewal after the undersigned has acted on her Report-Recommendation (which had not yet occurred when Plaintiff filed his second motion to amend on February 16, 2016); (2) Plaintiff’s motion does not identify the amendments in his proposed pleading, either through the submission of a red-lined version of the original pleading or other equivalent means, in violation of Local Rule 7.1(a)(2) (nor is Plaintiff’s motion supported by an unsigned copy of the proposed amended pleading, in violation of Local Rule 7.1[a][4]); and (3) Plaintiff’s proposed Amended Complaint appears to attempt to re-assert various claims that the Court has dismissed with prejudice in this Decision and Order.

ACCORDINGLY, it is

ORDERED that Plaintiff’s motion for reconsideration of the Report-Recommendation

(Dkt. No. 13) is DENIED; and it is further

ORDERED that Plaintiff’s motion to amend his Objections to the Report- Recommendation (Dkt. No. 15) is GRANTED; and it is further

ORDERED that Magistrate Judge Dancks’ Report-Recommendation (Dkt. No. 6) is ACCEPTED and ADOPTED in its entirety; and it is further

ORDERED that all of the claims asserted in Plaintiff’s Complaint (Dkt. No. 1) are DISMISSED with prejudice EXCEPT for the following four claims, which shall be DISMISSED with prejudice UNLESS, within THIRTY (30) DAYS of the date of this Decision and Order, Plaintiff files an AMENDED COMPLAINT that corrects the pleading defects identified in Magistrate Judge Dancks’ Report-Recommendation:

(1)        Plaintiff’s state law claims against St. Joseph’s Defendants St. Joseph’s Hospital Health Center, Briscoe, O’Connor, French, Levine, Tremiti, Roman, Spunelka, Constantine, Feldman, Rybak, Cate, Ruscitto, Seifter, Price, Welch, Gilbert, and John Does 1-5;

(2)        Plaintiff’s Bivens claims against Defendants Lombardo and Wysopal in their individual capacities;

(3)       Plaintiff’s state law claims against the United States;

(4)        Plaintiff’s state law claims against Defendants Lombardo and Wysopal; and it is further

ORDERED that Plaintiff’s Amended Complaint shall be a complete pleading that supersedes his original Complaint in all respects (and does not incorporate by reference any portion of that Complaint), and shall not attempt to reassert any claims that have been dismissed with prejudice in this Decision and Order; and it is further

ORDERED that Plaintiff’s motion to enlarge the time for service of process (Dkt. No. 16) is DENIED without prejudice to renewal before Magistrate Judg Dancks after she has determined whether he has, in his Amended Complaint, corrected the pleading defects identified in her Report-Recommendation; and it is further

ORDERED that Plaintiff’s motion to withdraw his first motion to amend his Complaint (Dkt. No. 18) is GRANTED, and Plaintiff’s first motion to amend his Complaint (Dkt. No. 17) is deemed WITHDRAWN; and it is further

ORDERED that Plaintiff’s second motion to amend his Complaint (Dkt. No. 19) is DENIED without prejudice.

Dated: February 25, 2016                            HON. GLENN T. SUDDABY
Syracuse, New York                                     Chief U.S. District Judge

UMESH HEENDENIYA,
Plaintiff,

v.                                                          5:15-CV-01238 (GTS/TWD)

ST. JOSEPH’S HOSPITAL HEALTH CENTER, et al.,
Defendants.

APPEARANCES:
UMESH HEENDENIYA
Plaintiff, pro se
P.O. Box 5104
Spring Hill, FL 34611

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

The Clerk has sent for review Plaintiff Umesh Heendeniya’s pro se civil rights complaint, brought under 42 U.S.C. § 1983 and Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) (“Bivens”), together with an application to proceed in forma pauperis (“IFP Application”) and an ex parte emergency motion to correct an error in his IFP application.  (Dkt. Nos. 1, 2, and 4.)

Plaintiff has sued thirty-three named defendants and ten John Does.  (Dkt. No. 1.) The lawsuit appears to arise out of the alleged prohibition under 18 U.S.C. § 922(g)(4)1 on Plaintiff’s ability

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1   18 U.S.C. § 922(g)(4), a provision of the Gun Control Act of 1968, provides in relevant part that “(g) It shall be unlawful for any person  . . . (4) who has been adjudicated as a mental defective or who has been committed to a mental institution . . . to ship or transport in interstate or foreign commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”  18 U.S.C. 924(a)(2) provides that “[w]hoever knowingly violates subsection . . . (g) . . . of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.”
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to receive any firearm shipped in interstate or foreign commerce as a result of his April 2013 involuntary commitment to the Psychiatric Ward at St. Joseph’s Hospital Health Center in Syracuse, New York, pursuant to New York Mental Hygiene Law (“MHL”) § 9.27. Id.

Even when a plaintiff meets the financial criteria for in forma pauperis, 28 U.S.C. § 1915(e) directs that when a plaintiff proceeds in forma pauperis, “the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.”  28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

In determining whether an action is frivolous, the court must look to see whether the complaint lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).  “An action is frivolous when either: (1) the factual contentions are clearly baseless such as when the claims are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (citations and internal quotation marks omitted).  Although extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to respond, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983), the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. See, e.g., Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curiam) (holding that a district court has the power to dismiss a complaint sua sponte if the complaint is frivolous).

To survive dismissal for failure to state a claim, a complaint must plead enough facts to state a claim that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).  “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).  While Rule 8(a) of the Federal Rules of Civil Procedure, which sets forth the general rules of pleading, “does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me accusation.” Id. In determining whether a complaint states a claim upon which relief may be granted, “the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff’s favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted).  “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.  “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

Where a plaintiff proceeds pro se, the pleadings must be read liberally and construed to raise the strongest arguments they suggest.  Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (citation omitted).  A pro se complaint should not be dismissed “without giving leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and internal quotation marks omitted).  An opportunity to amend is not required where “the problem with [the plaintiff’s] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

In his complaint, Plaintiff alleges that he was brought to St. Joseph’s on April 5, 2013, for prescription medication overdose and pneumonia, and that he was in the emergency room, intensive care, and general medical wing of the hospital until April 12, 2013.  (Dkt. No. 1 at ¶ 75.)   The admission note, signed by Defendant Wendy Briscoe (“Briscoe”), a registered nurse (“RN”) at St. Joseph’s, which has been submitted by Plaintiff as an exhibit to his complaint,

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2   St. Joseph’s and the St. Joseph’s administrators, attorney, physicians, nurses, a therapist, and five John Does named as defendants in Plaintiff’s complaint are referred to collectively herein as the “St. Joseph’s Defendants.”
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states that he was brought to St. Joseph’s when his mother found him unresponsive at a local motel and called 911. (Dkt. No. 1-6.) The admission note further states that Plaintiff related that he had been living in Massachusetts away from his family and had been having trouble keeping a job and had been isolated at home. Id. Plaintiff had come to Syracuse on April 5, 2013. Id. Plaintiff stated that he had taken twelve Xanax .05 mg. and twelve Risperdal 2 mg. Id. The admission indicates that Plaintiff had written letters to his mother, sister, brother, and estranged father. Id. Plaintiff spoke of having Post Traumatic Stress Disorder (“PTSD”), which he indicated was centered on his having been charged with murder in 1995 and ultimately acquitted on the grounds of self defense. Id.

According to the admission note, Plaintiff “signed disclosures but declined his treatments and procedures stating his second amendment rights and that he [was] not an American citizen. He also added that on a pistol permit he would have to admit that he was involuntarily admitted and he believes that if he does not sign this, then he would not purjure (sic) himself and commit a felony.” Id.; Dkt. No. 1-4 at 8.

Plaintiff has alleged that during the time he was in intensive care at St. Joseph’s, Defendant Lisa Marie O’Connor, MD (“O’Connor”), a St. Joseph’s psychiatrist, visited him on two separate occasions.  (Dkt. No. 1 at ¶ 79.) O’Connor asked Plaintiff if he was suicidal or homicidal, both of which he denied.  Id. at ¶ 81. O’Connor also questioned Plaintiff at length about his history, and he told her his complete biographic, physical and mental health, social, and educational history, including that he was being treated for Type-2 Bipolar Disorder and PTSD by a psychiatrist in Massachusetts Id. at ¶¶ 83-84.  Plaintiff informed O’Connor of the medications prescribed for the past four years by the Massachusetts psychiatrist who had been treating him for five years. Id. at ¶¶ 85-86.

According to Plaintiff, Defendant Joanne French (“French”), a St. Joseph’s RN, also saw him on two separate occasions while he was hospitalized at St. Joseph’s. Id. at ¶ 89. Plaintiff also spoke freely with French about his biographic, physical and mental health, social, and educational history and background, and his conversations with her covered the topics he had discussed with O’Connor. Id. at ¶¶ 89-90.

Plaintiff has alleged in his complaint that on April 8, 2013, St. Joseph’s physicians Defendants Roger Gary Levine, MD (“Levine”) (Psychiatrist), George O. Tremiti, MD (“Tremiti”) (Surgeon), and Horatius Roman, MD (“Roman”) (Anesthesiologist), who had never visited Plaintiff throughout his stay at St. Joseph’s to determine if he should be involuntarily committed under MHL § 9.27, fraudulently and negligently filled out the paper work necessary to have Plaintiff involuntarily committed under the provision. (Dkt. Nos. 1 at ¶¶ 95-96, 100; 1-7 at 2-5.)   Defendant Rosaline Spunelka, RN (“Spunelka), the administrative coordinator in the St. Joseph’s Psychiatric Ward, is alleged to have completed the application for “involuntary admission on medical certification” to be submitted to the New York State Department of Mental Health. Id. at ¶ 100. Plaintiff claims that he was never given any paper work or otherwise informed that he had a legal right to challenge the involuntary commitment. Id. at ¶ 102. However, among the exhibits to his complaint is a Notification of Status and Rights Involuntary Admission of Medical Certification, dated April 12, 2013, which indicates that Plaintiff was given a copy on the date of the commitment.  (Dkt. No. 1-7 at 6.)  The Notification advised Plaintiff that: “If you or those acting on your behalf, believe that you do not need involuntary care and treatment, you or they may make a written request for a court hearing.  Copies of such a request will be forwarded by the hospital director to the appropriate court and the Mental Hygiene Legal Service.” Id. The Notification advises Plaintiff of his right to legal representation and provides the address for the Mental Hygiene Legal Service. Id.

Plaintiff has also alleged in his complaint that St. Joseph’s physicians Levine, O’Connor, Tremiti, Roman, Robert Michael Constantine, MD (“Constantine”) (Anesthesiologist”), and Bruce Feldman, MD (“Feldman”) (Emergency Medicine); RNs French and Spunelka, and Defendant Cynthia A. Rybak (“Rybak”), a St. Joseph’s nurse practitioner, negligently and/or fraudulently documented and continued to falsely assert, until his unlawful, involuntary commitment on April 12, 2013, that Plaintiff had a long history of Schizoeffective Disorder, even though he had never been so diagnosed. Id. at ¶¶ 91-92. According to Plaintiff, if the Defendants had made a reasonable effort from April 6 to April 8, 2013, they could have contacted his Massachusetts psychiatrist to verify whether he had Schizoeffective Disorder. Id. at ¶¶ 93-94.

Plaintiff was kept under the involuntary commitment for five days before being released on April 17, 2013.  Id. at ¶ 104.  Plaintiff has alleged that Defendants Levine, Tremiti, and Roman never visited him to observe or speak with him during the period of his involuntary commitment. Id. at ¶ 96.  Plaintiff’s Discharge Sheet, submitted as an exhibit to his complaint, sets forth diagnoses of drug overdose, suicide attempt, bipolar disorder, and PTSD. (Dkt. No. 1-6 at 2.)

In early 2015, Plaintiff contacted St. Joseph’s informing the hospital that 18 U.S.C. § 922(g)(4) prohibited him from exercising his Second Amendment right to bear arms due to his unlawful involuntary commitment in the St. Joseph’s Psychiatric Ward and asked that the situation be rectified.  (Dkt. No. 1 at ¶ 107.)  In a letter dated January 12, 2015, from non-party Mary Clare Ehde (“Ehde”), Manager of the Office of Patient Experience at St. Joseph’s, Plaintiff was informed that his concerns were being reviewed, and he would be contacted upon completion of the review.  (Dkt. No. 1-9 at 2.)  On January 27, 2015, Ehde wrote to Plaintiff informing him that his concerns had been reviewed by St. Joseph’s Sr. Vice-President of Operations-COO/CNO, Vice-President of Medical Affairs, Director of Quality Resources, Physician Quality Director, and the Service Line Administrator of Inpatient Behavioral Health. Id.  In addition, a thorough review of Plaintiff’s medical records had been undertaken and staff interviewed.  The outcome of the investigation was explained to Plaintiff as follows:

Prior to your admission to Unit 3-6, you were evaluated by 2 medical Physicians and a Psychiatrist.  Based on these evaluations, the recommendation was made for an involuntary admission to Unit 3-6.  The appropriate paper work was completed for the admission.  Our review has concluded that for your personal safety, the involuntary admission was an appropriate course of treatment for you.
(Dkt. No. 1-9 at 3.)

In addition to the St. Joseph’s Defendants identified above, Plaintiff has named a number of St. Joseph’s Defendants with regard to whom the complaint, other than identifying them, is silent.  Those Defendants include Susan Lyn Cate (“Cate”), LMFT; Kathryn Howe Ruscitto (“Ruscitto”), President and CEO; Lowell A. Seifter (“Seifter”), JD and General Counsel; Meredith Price (“Price”), VP and CFO; Deborah Welch (“Welch”), VP for People; Gael Gilbert (“Gilbert”), RN and Director of St. Joseph’s Psychiatric Ward; and St. Joseph’s John Does 1-5. (See generally Dkt. No. 1.)

Plaintiff has named as Defendants New York Office of Mental Hygiene (“OMH”); Ann Marie Sullivan, MD (“Sullivan”), OMH Commissioner; NYS Division of Criminal Justice Services (“NYDCJS”); Joshua Benjamin Pepper, Esq. (“Pepper”), Deputy Commissioner and Counsel to NYDCJS; Michael C. Green (“Green”), Executive Deputy Commissioner of NYDCJS; and Eric T. Schneiderman (“Schneiderman”), New York State Attorney General (collectively referred to herein as “State Defendants”). (Dkt. No. 1 at ¶¶ 33-38.)

Plaintiff has alleged in conclusory fashion that the State Defendants were acting within the scope of their employment and in their capacity as employees of their respective state agencies and departments in furtherance of their employer’s interest and under color of state law. Id. at ¶¶ 39-40.  The complaint is devoid of specific facts alleging the official or personal involvement of any of the New York State Defendants with regard to the claims asserted by Plaintiff.

In addition to the United States, DOJ, FBI, and ATF, Plaintiff has named as defendants Loretta E. Lynch (“Lynch”), United States Attorney General; James B. Comey, Jr. (“Comey”), Director of the FBI; Thomas E. Brandon (“Brandon”), Acting Director of ATF; National Instant Background Check System (“NICS”); Regina Lombardo (“Lombardo”), Special Agent in Charge (SAC) of the FBI Tampa Office; and Paul Wysopal (“Wysopal”), Special Agent in Charge (SAC) of the FBI Tampa Office; and Federal John Does 1-5 (collectively referred to herein as the “Federal Defendants”). (Dkt. No. 1 at ¶¶ 3, 23-32.)

Plaintiff’s complaint includes general allegations regarding the authority and responsibilities of the Defendant federal departments and agencies and individual federal defendants with regard to the interpretation and enforcement of the Federal Gun Control Act, 18 U.S.C. § 921, et seq.  Id.  The complaint does not include any specific factual allegations showing that any of the Federal Defendants were personally involved in depriving Plaintiff of his constitutional rights.  Moreover, the complaint does not allege that Plaintiff has at any time been charged with a violation of 18 U.S.C. § 922(g)(4).

In Paragraph 4 of his complaint, Plaintiff sets forth a laundry list of claims, including the following: the violation of his rights under the Second Amendment and his rights to due process and equal protection under the Fifth and Fourteenth Amendments via 42 U.S.C. § 1983 and Bivens; violation of the Federal Tort Claims Act, §§ 1346(b), 1402(b), 2401(b), and 2671-2680; violation of the New York Court of Claims Act; unjust enrichment; negligent hiring, supervision, or retention; negligence; injurious falsehood; fraudulent misrepresentation; fraud negligent misrepresentation; fraud fraudulent inducement; fraud; false imprisonment; estoppel, promissory; equitable estoppel; emotional distress; negligent infliction of emotional distress; emotional infliction; intentional infliction of emotional distress; defamation, slander; defamation, libel; civil conspiracy; breach of fiduciary duty; breach of implied warranty of fitness for a particular purpose; breach of express warranty; breach of third party beneficiary contract; breach of contract; defamation per se; and prima facie tort. (Dkt. No. 1 at ¶ 4.)

In his Statement of Claims, however, Plaintiff has asserted only the following claims against Defendants:

Count II          Reckless infliction of emotional distress
Count III         Negligent infliction of emotional distress
Count IV         Negligent misrepresentation
Count V          Intentional Misrepresentation
Count VI         Civil Conspiracy

(Dkt. No. 1 at ¶¶ 117-164.)

Construing Plaintiff’s complaint liberally for purposes of this initial review, the Court will assume that in addition to his state law claims, Plaintiff intends to assert federal claims under § 1983 against the St. Joseph’s and State Defendants and claims under Bivens, the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, and 18 U.S.C. § 925A against the Federal Defendants for violation of his rights under the Second, Fifth, and Fourteenth Amendments to the United States Constitution.

Plaintiff is seeking the following relief:

1.         Liberal construction of pleadings;

2.         Declaration that 18 USC ¶ 922(g)(4)(2006) violates his right to bear arms under the Second Amendment;

3.         Declaration that 18 USC ¶ 922(g)(4)(2006) and its derivative regulations and all related laws, policies, and procedures violate his rights to equal protection and due process under Fifth Amendment;

4.         Declaration that 18 USC ¶ 922(g)(4)(2006) and its derivative regulations and all related laws, policies, and procedures violate his rights to equal protection and due process under Fourteenth Amendment;

5.         Declaration that 18 USC ¶ 922(g)(4)(2006) and its derivative regulations and all related laws, policies, and procedures violate his rights to due process under Fifth Amendment because he was not afforded notice and an opportunity to be heard prior to the deprivation or through a post-deprivation proceeding to seek review and relief;

6.         Declaration that 18 USC ¶ 922(g)(4)(2006), its derivative regulations and all related laws, policies, and procedures do not apply to his involuntary commitment to St. Joseph’s Psychiatric Unit;

7.         Declaration that MHL § 9.27, as applied, violates constitutional right to keep and bear arms under the Second and Fourteenth Amendments to the extent it allows defendants to prohibit otherwise qualified private persons from purchasing and possessing firearms and ammunition for self-defense at home;

8.         Declaration that NY MHL 9.27, as applied, violates constitutional right to due process under Fifth and Fourteenth Amendments;

9.         Permanent injunction enjoining defendants from enforcing 18 USC ¶ 922(g)(4) against him in relation to involuntary admission to St. Joseph’s as the § MHL 9.27 scheme lacks requisite standard under Addington v. Texas, 441 U.S. 418;

10.       Declaration that defendants’ continuing refusal to grant him permission to exercise fundamental right to defend his home is unlawful;

11.       Enjoin defendants from continuing to refuse to grant him permission to exercise fundamental right to protect his home;

12.       Judgment compensating him for his losses to the greatest extent allowed by law;

13.       Compensatory, punitive, reliance, expectation, consequential, incidental and hedonic damages as allowed by law to be decided by a jury; and

14.       Costs and attorneys’ fees.

(Dkt. No. 1 at 22-24.)

IV.       ANALYSIS

A.        Section 1983 Claims Against St. Joseph’s Defendants

To state a claim under § 1983, a plaintiff must allege that defendants violated his federal rights while acting under color of state law. Washington v. County of Rockland, 373 F.3d 310, 315 (2d Cir. 2004).  “[P]rivate conduct, no matter how discriminatory or wrongful, is not controlled by § 1983.” Am. Mfrs. Mut, Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999).  The pivotal issue with regard to Plaintiff’s § 1983 claims against the St. Joseph’s Defendants is whether they were state actors when they involuntarily committed Plaintiff under MHL § 9.27.  See Doe v. Rosenberg, 996 F. Supp. 343, 348 (S.D.N.Y. 1998), aff’d, 166 F.3d 507 (2d Cir. 1999).

St. Joseph’s is a private non-profit regional health care system located in Syracuse, New York.3  Individual St. Joseph’s Defendants Levine, O’Connor, Tremiti, Roman, French, Briscoe, Cate, Spunelka, Constantine, Feldman, Rybak, Ruscitto, Seifter, Price, Welch, and Gilbert are all identified as working at St. Joseph’s in a medical, administrative, or legal capacity, and are thus deemed to be private actors for purposes of this initial review. (Dkt. No. 1 at ¶¶ 7-22.)

A private actor can be found to act under color of state law for purposes of § 1983 when “(1) the State compelled the conduct, (2) there is a sufficiently close nexus between the State and the private conduct, or (3) the private conduct consisted of activity that has traditionally been the exclusive prerogative of the State.” Hogan v. A.O. Fox Memorial Hosp., 346 F. App’x 627, 628 (2d Cir. 2009) (citing Sybalski v. Indep. Group Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008).  “The fundamental question under each test is whether the private [actor’s]

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3   See http://sjhsyr.org/who-we-are (last visited on November 30, 2015).
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challenged actions are ‘fairly attributable’ to the state.” Fabrikant v. French, 691 F.3d 193, 207 (2d Cir. 2012) (quoting Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982).

In Rosenberg, the plaintiff sued a private hospital and members of its staff under § 1983 arising out of her involuntary commitment under MHL § 9.27. The district court carefully analyzed whether the hospital and staff could be considered state actors under any of the three tests before concluding that they were not state actors with respect to the involuntary commitment for § 1983 purposes. Rosenberg, 996 F.Supp. at 349-358.  Analyzing the language of MHL § 9.27, the district court in Rosenberg found that the hospital defendants were not state actors under the state compulsion test because “[e]ven though the MHL provides the legal framework under which physicians may involuntarily commit a patient by creating procedures and standards for commitment . . . it leaves the decision to commit completely to the physician’s discretion.” Id. at 350-51.

The district court also found that the MHL did not create a sufficiently close nexus between the State and hospital defendants to mandate their classification as state actors even though the hospital defendant had a contract with the OMH that allowed the hospital to operate a psychiatric wing and was licensed by OMH to serve as a primary psychiatric emergency care provider. Id. at 352.  The district court noted the Supreme Court finding that “the mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment.” Id. (quoting Jackson v. Metropolitan Edison C., 419 U.S. 345, 350 (1974)).  Finding that the case “did not involve a situation where the State has “‘so far insinuated itself into a position of interdependence with the [private party] that it was a joint participant in the enterprise,’” [quoting Harvey v. Harvey, 949 F.2d 1127, 1131 (11th Cir. 1992)], the district court concluded that “because the MHL merely licenses private physicians and hospitals to commit involuntary commitments yet in no way influences the decision to commit, the relationship with the Hospital Defendants is insufficient to pass the close nexus/joint action test.”  996 F.Supp. at 352-53.

Under the public function test, as pointed out by the district court in Rosenberg, “the relevant question is not simply whether a private group is serving a ‘public function.’” Id. at 353 (quoting Rendell-Baker, 457 U.S. at 842) (emphasis in original).  “The question is whether the function performed has been ‘traditionally the exclusive prerogative of the State.’” Id. (quoting Rendell-Baker, 457 U.S. at 842).  The district court in Rosenberg found that involuntary commitment under the MHL failed the public function test because the powers exercised by the hospital defendants were not the sort that were traditionally the exclusive prerogative of the State. Id. at 353.

The district court concluded that

The application of the state compulsion, close nexus/joint action, and public function tests establish that the MHL, at most, provides a licensing provision enabling the private hospital to receive mental patients.  Licensing and regulations are insufficient to transform the Hospital Defendants into state actors for § 1983 purposes.  Holding otherwise would expose private physicians and private hospitals to § 1983 liability whenever they act pursuant to the MHL, despite the fact that their actions reflect medical judgments made according to generally accepted professional standards that are not established by New York State.

Id. at 356-57.

The Second Circuit affirmed in Rosenberg for substantially the same reasons set forth in the district court’s “comprehensive and scholarly opinion.” 116 F.3d at 507.  More recently, in McGugan v. Aldana-Bernier, 752 F.3d 224, 229 (2d Cir. 2014), the Second Circuit, following Rosenberg, held that a private hospital and its medical personnel did not engage in state action for purposes of § 1983 in forcibly medicating plaintiff and involuntarily committing her under MHL § 9.39.  See also Andersen v. North Shore Long Island Jewish Healthcare System’s Zucker Hillside Hospital, No. 12-CV-1049, 2015 WL 1443254, at * 13, 2015 U.S. Dist. LEXIS 39631, at * 17 (E.D.N.Y. March 26, 2015) (citing Rosenberg and dismissing § 1983 claims against private hospital and medical personnel on the grounds they were not acting under color of state law in involuntarily committing plaintiff under the MHL); Antwi v. Montefiore Medical Center, No. 14 Civ. 840(ER), 2014 WL 6481996, at * 6, 2014 U.S. Dist. LEXIS 161904, at * 18 (S.D.N.Y. Nov. 18, 2014) (dismissing § 1983 claim brought against private medical center that had involuntarily committed plaintiff under MHL 9.27 for failure to show state action); Doe v. Harrison, 254 F.Supp. 2d 338, 342 (S.D.N.Y. 2003) (civil commitment under MHL § 9.27 by a private physician does not constitute state action).

The Court finds that Plaintiff’s § 1983 claims against the St. Joseph’s Defendants raise substantially the same questions considered and decided in Rosenberg and McGugan, and that there is no basis for finding state action. Following Second Circuit precedent, the Court recommends that Plaintiff’s § 1983 claims against all of the St. Joseph’s Defendants be dismissed with prejudice for failure to state a claim.

Plaintiff has also asserted a medical negligence or malpractice claim, along with an assortment of what at first glance appear to be largely frivolous state law claims against the St. Joseph’s Defendants. (Dkt. No. 1 at ¶¶ 4, 117-164.)  “It is a fundamental precept that federal courts are courts of limited jurisdiction and lack the power to disregard such limits as have been imposed by the Constitution or Congress.” Durant, Nichols, Houston, Hodgson & Cortese- Costa, P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir. 2009). Federal jurisdiction exists only when a “federal question” is presented (28 U.S.C. § 1331), or where there is “diversity of citizenship” and the amount in controversy exceeds $75,000 (28 U.S.C. § 1332). See Perpetual Sec., Inc. v. Tang, 290 F.3d 132, 136 (2d Cir. 2002).

The Court has concluded that Plaintiff has failed to state a claim under § 1983, leaving no federal question jurisdiction.  It appears from the complaint that there may be complete diversity of citizenship between Plaintiff, alleged to be a resident of Florida, and St. Joseph’s and the St. Joseph’s Defendants, who are all alleged to be working at St. Joseph’s in New York State.4 (Dkt. No. 1 at ¶¶ 5-22.)  However, St. Joseph’s and the St. Joseph’s Defendants are not the only defendants named in this action, and Plaintiff concedes that two of the named Defendants, Regina Lombardo and Paul Wysopal, are both Special Agents in Charge of ATF’s Tampa, Florida office, and may therefore very well be Florida residents, thus destroying complete diversity. (Dkt. No. 1 at ¶ 3.)

In addition, even if complete diversity were clear from the complaint, Plaintiff has not alleged that the amount in controversy exceeds $75,000.  In fact, he has failed to plead any amount in controversy. See Lupo v. Human Affairs, Int’l, Inc., 28 F.3d 269, 273 (2d Cir. 1994) (“[T]he party asserting diversity jurisdiction in federal court has the burden of establishing the existence of the jurisdiction amount in controversy.”).

Because there is no federal question jurisdiction, there is not complete diversity between

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4   Because Plaintiff has not alleged the state of residence of any of the St. Joseph’s Defendants, complete diversity among those parties is not clear from the complaint.
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the Plaintiff and Defendants, and Plaintiff has failed to include allegations showing that the amount in controversy satisfies § 1332, the Court finds that there is no subject matter jurisdiction over Plaintiff’s state law claims against the St. Joseph’s Defendants and recommends dismissal on that ground.5

Plaintiff has sued State Defendants New York OMH, OMH Commissioner Sullivan, NYDCJS, NYDCJS Deputy Commissioner and Counsel Pepper, NYDCJS Executive Deputy Commissioner Green, and New York State Attorney General Schneiderman.  (Dkt. No. 1 at ¶¶ 33-38.)  Plaintiff has alleged in conclusory fashion that OMH and NYDCJS are State agencies and that the State Defendants were acting within the scope of their employment and in their capacity as employees of their respective state departments in furtherance of their employer’s interest and under color of state law. Id. at ¶¶ 33-40. Plaintiff has also alleged that Attorney General Schneiderman is responsible for “executing and administering laws, customs, practices, and policies of the State of New York, including the Mental Hygiene Law.” Id. at ¶ 33.

Plaintiff has sued the State Defendants under § 1983 solely in their official capacities.6

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5   Inasmuch as the Court is recommending dismissal of Plaintiff’s § 1983 claims against the St. Joseph’s Defendants with prejudice, it is not recommending that the District Court exercise supplemental jurisdiction over his state law claims against those Defendants.

6   The Court has concluded that Plaintiff’s § 1983 claims against the State Defendants are brought against them solely in their official capacities because he has not alleged that they are being sued in their individual capacity as he has with the Federal Defendants, and there are no allegations of personal involvement in Plaintiff’s involuntary commitment by the State Defendants. See Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013) (“It is well settled that, in order to establish a defendant’s individual liability in a suit brought under § 1983, a plaintiff must show, inter alia, the defendant’s personal involvement in the alleged constitutional deprivation.”) (citations omitted).
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Id. at ¶¶ 33-40.  The complaint is devoid of allegations of involvement, official or otherwise, in Plaintiff’s involuntary commitment at St. Joseph’s by any of the State Defendants.  Presumably, Plaintiff has named the State Defendants for the purpose of seeking declarations that MHL § 9.27, as applied, violates his right to keep and bear arms under the Second and Fourteenth Amendments, and his right to procedural and substantive due process under the Fourteenth Amendment. Id. at 23-24.

In Project Release v. Prevost, 722 F.2d 960, 971 (2d Cir. 1983), the Second Circuit upheld the facial constitutionality of MHL § 9.27, the statute under which Plaintiff was involuntarily committed to the St. Joseph’s Psychiatric Ward, against a procedural due process challenge. Project Release did not include an as-applied analysis of the statute because, as the Second Circuit explained, plaintiffs’ case “did not amount to an attack on the application of the statutory provisions at issue [therein], whether the statute is applied constitutionally remains an open question, the resolution of which may be accomplished only in the context of an appropriate ‘as applied’ challenge.” Id. at 971; see also Field Day, LLC v. County of Suffolk, 463 F.3d 167, 174-75 (2d Cir. 2006) (“An ‘as-applied’ challenge . . . requires an analysis of the facts of a particular case to determine whether the application of a statute, even one constitutional on its face, deprived the individual to whom it was applied of a protected right.”).

None of the allegations in the complaint relevant to Plaintiff’s as-applied challenge to the constitutionality of MHL § 9.27 implicate any of the State Defendants.7 Rather his claim that the

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7   This case is distinguishable from Project Release, 722 F.2d 960, in which the plaintiff had been involuntarily committed to Creedmoor Psychiatric Center, which is a State OMH facility, not a private hospital. See https://www.omh.ny.omhweb/facilities/crpc (last visited on November 30, 2015).
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provision was applied in an unconstitutional manner is directed to the actions of the St. Joseph’s Defendants, who allegedly (1) negligently, fraudulently, and unlawfully had him involuntarily committed under the provision; (2) failed to give him any paperwork informing him of his legal right to challenge the involuntary commitment; and (3) failed to rectify the situation when Plaintiff informed them that because of the allegedly unlawful involuntary commitment, he was prohibited from having a firearm by 18 U.S.C. § 922(g)(4).8 (Dkt. No. 1 at ¶¶ 75-108.)

As noted above, “private conduct, no matter how discriminatory or wrongful, is not controlled by § 1983.” Am. Mfrs. Mut, Ins., 526 U.S. at 20.  Therefore, even if, as Plaintiff claims, the St. Joseph’s Defendants violated his due process rights in applying MHL § 9.27 in his particular case, he has no claim under § 1983.  Given Plaintiff’s failure to allege the involvement of any of the State Defendants in Plaintiff’s involuntary commitment under MHL § 9.27, or any unconstitutional application of the provision on their part, the Court recommends that Plaintiff’s § 1983 claim as against Defendants New York OMH, Sullivan, NYDCJS, Pepper, Green, and Schneiderman be dismissed with prejudice.9

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8   As noted above, Plaintiff’s claim that he was not given paperwork informing him of his legal right to challenge the involuntary commitment is contradicted by the Notification of Status and Rights Involuntary Admission on Medical Certification date April 12, 2013, informing him of his right to a court hearing and counsel, submitted by him as an exhibit to his complaint.  (Dkt. No. 1-7 at 6.)  Not only does a staff physician’s signature, dated April 12, 2013, appear on the Notification under the statement “THE ABOVE PATIENT HAS BEEN GIVE A COPY OF THIS NOTICE,” Plaintiff would have to have been in possession of the Notification in order to include it as an exhibit to his complaint.  Id.

9   In addition to his procedural due process claim, Plaintiff seems to have alleged that MHL § 9.27, as-applied, violated his Second Amendment right to bear arms, substantive due process rights, and the equal protection clause of the Fourteenth Amendment.  Any substantive due process as-applied claim would relate to the actions of the St. Joseph’s Defendants, private actors, and substantive due process does not require state actors to protect against such conduct by a private actor. See DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989) (substantive due process does not “require[ ] the State to protect the life, liberty, and property of its citizens against invasion by private actors.”)  Plaintiff has failed to allege any facts supporting an equal protection violation as-applied claim that would apply to the State Defendants. To the extent Plaintiff may be attempting to claim more broadly that MHL § 9.27, as-applied, violated his Second Amendment rights because an involuntary commitment subjects him to the prohibition under § 922(g)(4), the Court notes that the Supreme Court has made it clear that the right to bear arms under the Second Amendment is not unlimited and that nothing in its opinion in District of Columbia v. Heller, 554 U.S. 570, 626 (2008) should be “taken to cast doubt on longstanding prohibitions on the possession of firearms by . . . the mentally ill.”
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As with the St. Joseph’s Defendants, Plaintiff has asserted a variety of state tort law claims against the State Defendants. (Dkt. No. 1 at ¶¶ 4, 132-164.) “The Eleventh Amendment prevents a federal court from granting relief against state officials sued in their official capacities on the basis of state law, be the requested relief prospective or retroactive, injunctive or monetary in nature. See Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 105 (1984) (“A federal court’s grant of relief against state officials in the basis of state law, whether prospective [injunctive relief] or retroactive [monetary relief on a claim for damages], does not vindicate the supreme authority of federal law.  On the contrary, it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law.”); Kennedy v. U.S., 643 F.Supp. 1072, 1077 (E.D.N.Y. 1986) (“the Eleventh Amendment prevents a federal court from granting relief against state officials on the basis of state law, be the requested relief prospective or retroactive, injunctive or monetary in nature.”) (citation omitted).  Furthermore, the power of federal courts to adjudicate such state law claims against state officials is equally lacking whether the claimed basis for jurisdiction is said to lie in federal question jurisdiction, diversity jurisdiction, or the doctrines of pendent or ancillary [supplemental] jurisdiction.” Id. The Eleventh Amendment likewise bars state law claims seeking money damages against state agencies. See Limwongse v. NYS Office of Mental Health, 249 F. App’x 862 (2d Cir. 2007) (state agencies protected by the Eleventh Amendment from suit for money damages).

Therefore, the Court recommends that Plaintiff’s state law claims seeking money damages against the State Defendants be dismissed with prejudice under the Eleventh Amendment.

In Bivens, the Supreme Court authorized lawsuits for money damages against federal officials in their individual capacities for the intentional deprivation of constitutional rights.

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10   Plaintiff concedes that NICS is not an entity but rather a computerized system operated by the FBI which contains information to be checked by firearms sellers.  (Dkt. No. 1 at ¶ 30.)
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Bivens, 403 U.S. 388.  Bivens money damages claims may not be brought against the United States, federal agencies, or federal agents in their official capacities.  See FDIC v. Meyer, 510 U.S. 471, 484-86 (1994) (confirming that under Bivens, a “direct action against the Government [is] not available,” and further declining to recognize a “Bivens-type cause of action directly against a federal agency”); Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“A]n official capacity suit is, in all respects other than name, to be treated as a suit against the entity); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (A Bivens action “must be brought against the federal officers involved in their individual capacities.  Under the doctrine of sovereign immunity, an action for damages will not lie against the United States absent consent.  Because an action against a federal agency or federal officers in their official capacities is essentially a suit against the United States, such suits are barred under the doctrine of sovereign immunity, unless such immunity is waived.”) (citations omitted).

Therefore, as to Plaintiff’s Bivens claims against the United States, DOH, FBI, ATF, NICS, Lynch, Comey, Brandon, the federal John Does, and Lombardo and Wysopal in their official capacities, the Court recommends that they be dismissed with prejudice on sovereign immunity grounds.11

Unlike the other Federal Defendants, Lombardo and Wysopal are being sued in both their individual and official capacities. Id. at ¶¶ 31-32.  To establish a Bivens claim, a plaintiff must

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11   Unless Plaintiff can allege facts plausibly showing that Lynch, Comey, and Brandon actively participated in the constitutional violations alleged by Plaintiff, amendment of his complaint to assert his Bivens claims against them in their individual capacities would be futile. See Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997).
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plausibly allege that the individual defendant actively participated in the alleged constitutional violation.  See Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997).  The complaint does not include a single allegation showing personal involvement by either Lombardo or Wysopal in the alleged violation of Plaintiff’s constitutional rights.  Therefore, the Court recommends the dismissal without prejudice of Plaintiff’s Bivens claim against Defendants Lombardo and Wysopal for failure to state a claim.12

F.         Plaintiff’s Challenge to the Constitutionality of 18 U.S.C. § 922(g)(4) and to the Inclusion Therein of an Involuntary Commitment under  MHL § 9.27

Plaintiff is challenging the constitutionality of § 922(g)(4) of the GCA.  18 U.S.C. § 921 et seq.  More specifically, Plaintiff is seeking a declaratory judgment under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, declaring that § 922(g)(4) violates his constitutional right to bear arms under the Second Amendment and his rights to equal protection and due process under the Fifth Amendment.13   (Dkt. No. 1 at ¶¶ 2-3.)  Plaintiff also seeks a declaration

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12   Although not an issue to be determined on this initial review, because both Lombardo and Wysopal work in the Tampa, Florida FBI Office, this court may well have no personal jurisdiction over them.  Personal jurisdiction of a federal court over a non-resident defendant is governed by the law of the state in which the court sits.  Therefore, in the event Plaintiff is granted leave to amend his complaint against Lombardo and Wysopal, he would be well advised to consider whether personal jurisdiction could be asserted over them in the Northern District of New York under N.Y. CPLR § 302, and whether his claims against them are properly venued in the Northern District of New York.

13   In U.S. v. One (1) Vyatskie Polyany Mach. Bldg. Plant “MOLOT” VEPR Rifle, 473 F. Supp. 2d 374, 377 (E.D.N.Y. 2007), the court rejected a claim that Section 922(g)(4) violated the Equal Protection Clause, finding that the Congressional intent in enacting the GCA to keep firearms away from persons considered potentially dangerous constituted a rational basis to prohibit the possession of firearms by individuals who have been committed to mental health institutions.  The Court finds no basis for concluding otherwise.  As to Plaintiff’s Fifth Amendment due process claim, § 922(g)(4), does not set forth a required procedure for involuntary commitment but rather relies upon the state procedures for commitment.  As pointed out by the Second Circuit in U.S. v. Waters, 23 F.3d 29, 32 (2d Cir. 1994), the involuntary commitment scheme under MHL § 9.27 and § 9.31, which provides for notice of the right to a judicial hearing upon request for an involuntarily committed individual, withstood a challenge that it was facially unconstitutional on procedural due process grounds in Project Release, 722 F.2d at 971-81.
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that § 922(g)(4) does not apply to involuntary commitments under MHL § 9.27.  Id. at ¶ 6.  In addition, Plaintiff is seeking relief against the United States under 18 U.S.C. § 925A , which allows a person denied a firearm under § 922(s) or (t), who is not prohibited from receipt of a firearm pursuant to § 922(g) to seek relief.

The GCA imposes restrictions on the possession of firearms.  In Huddleston v. United States, 415 U.S. 814, 824 (1974), the Supreme Court explained that “[t]he principal purpose of the federal gun control legislation . . . was to curb crime by keeping ‘firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency.’” (citation omitted).  Section 922(g)(4) makes it unlawful for any person “who has been committed to a mental institution” to, inter alia, “receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”

Plaintiff claims that the provision violates his right to bear arms under the Second Amendment.  However, in District of Columbia v. Heller, 554 U.S. 570, 626 (2008), the Supreme Court acknowledged that the right to bear arms is limited and made it clear that nothing in its opinion recognizing a right to bear arms under the Second Amendment “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by . . . the mentally ill.” See also McDonald v. City of Chicago, 561 U.S. 742, 786 (2010) (“We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill.’”) (quoting Heller, 554 U.S. at 626);

Petramala v. United States Dept. of Justice, 481 F. App’x 395, 396 (9th Cir. 2012) (relying on Heller in determining that § 922(g)(4) imposed constitutionally permissible limits on the right to bear arms under the Second Amendment); U.S. v. Yancey, 621 F.3d 681, 685 (7th Cir. 2010) (noting that in Heller and McDonald, “the [Supreme] Court endorsed the exclusion of the mentally ill from firearm possession as presumptively valid.”).

With regard to Plaintiff’s claim that § 922(g)(4) does not apply to involuntary commitments under MHL § 9.27, the law is clear that whether an individual was “committed to a mental institution” for purposes of § 922(g)(4) is a question of federal law. U.S. v. Waters, 23 F.3d 29, 31 (2d Cir. 1994).  In Waters, the Second Circuit held that the involuntary admissions procedures under MHL § 9.27 do constitute a “commitment” within the meaning of § 922(g)(4). The Court noted in reaching that conclusion that “[t]he federal gun control statute is designed to prohibit the ownership of firearms not only by individuals who have already committed dangerous acts, but also by those with a potential for violence as well. . . . A perusal of the legislative history of the statute indicates that Congress would broadly apply the prohibition against ownership of firearms by ‘mentally unstable’ or ‘irresponsible persons.’” Id. at 35.

The Second Circuit found in Waters that “§ 9.27 permit[ted] only the involuntary confinement of dangerous individuals who cannot survive in the community.” Id. (citing Project Release, 722 F.2d at 973-74).  The Court noted that “Congress made no exception for subsequent curative events,” and that several federal courts had held that the statutory provisions of the GCA “regarding possession of firearms apply to persons who have been committed to mental health facilities and are later released or found incompetent.” Id.  See, e.g., Redford v. United States Dep’t of Alcohol, Tobacco and Firearms, 691 F.2d 471, 473 (10th Cir. 1982) (the prohibition of the GCA against those adjudicated mentally incompetent “provides no exceptions for people who have regained their competency or sanity or who have been released from confinement.”).

In light of (1) the Supreme Court’s assurances in Heller and McDonald that the Court did not intend to cast doubt on longstanding regulatory measures prohibiting the possession of firearms by felons and the mentally ill; (2) the rational basis for keeping firearms away from persons considered potentially dangerous; and (3) the Second Circuit determination in Waters that involuntary commitment under MHL § 9.27, with “its attendant requirements of notice and judicial proceedings,” constitutes commitment to a mental institution under § 922(g)(4), the Court finds that Plaintiff has failed to state a claim for a declaration that § 922(g)(4) violates his constitutional rights under the Second and Fifth Amendments or for relief under 18 U.S.C. § 925A.

As with the St. Joseph’s and State Defendants, Plaintiff has asserted a large number of what appear to be largely frivolous state law torts against the Federal Defendants.  Under the Federal Tort Claim Act (“FTCA”), a plaintiff’s exclusive remedy for nonconstitutional torts committed by federal employees in their official capacity and federal agencies is a lawsuit against the United States. See 28 U.S.C. §§ 1346(b), 2679(b)(1); Salmon v. Schwartz, 948 F.2d 1131, 1141 (10th Cir. 1991).  As noted above, with the exception of Lombardo and Wysopal, against whom no factual allegations supporting Plaintiff’s tort claims have been asserted, all of the individual Federal Defendants have been sued in their official capacities only.  Therefore, the Court recommends that Plaintiff’s state law tort claims be dismissed with prejudice as against all of the Federal agencies and the individual Federal Defendants sued in their official capacities under the immunity provided by 28 U.S.C. §§ 1346(b), 2679(b)(1).  Inasmuch as Plaintiff has failed to allege facts showing diversity jurisdiction over his state law tort claims against Lombardo and Wysopal in their individual capacities, the Court recommends that those claims be dismissed for lack of subject matter jurisdiction.

Before an action can be commenced against the United States under the FTCA, a claimant is required to exhaust administrative remedies by presenting claims to the appropriate agency.  See 28 U.S.C. § 2675.  Plaintiff has not alleged exhaustion, and the Court therefore recommends dismissal of the state law tort claims against the United States without prejudice.

V.      SUMMARY

A.        St. Joseph’s Defendants

Because Bivens claims against the United States, DOJ, FBI, AFT, NICS, Lynch, Comey, and Brandon are asserted against them solely in their official capacities and thus are barred under the doctrine of sovereign immunity, the Court recommends that Plaintiffs’ Bivens claims against those Defendants be dismissed with prejudice.  The Court also recommends that the Bivens claims against Lombardo and Wysopal in their official capacities be dismissed with prejudice.

Although the Plaintiff has asserted Bivens claims against Federal Defendants Lombardo and Wysopal in their individual capacities, the complaint is devoid of factual allegations as to the basis for the claims. Therefore, the Court recommends that the Bivens claims against those Defendants be dismissed for failure to state a claim.  Because the complaint has given no hint of the basis, if any, for Plaintiff’s Bivens claim against Lombardo and Wysopal, the Court cannot assess with certainty whether given the opportunity to amend, Plaintiff could state a Bivens claim.  Thus, the Court recommends that the dismissal be without prejudice, and that Plaintiff be granted leave to amend as against Lombardo and Wysopal in the event he is able to assert facts supporting a Bivens claim, showing some basis for personal jurisdiction in the Northern District of New York, and establishing that venue would be proper in the District.14

The Court has recommended dismissal of Plaintiff’s claims against the Federal Defendants challenging the constitutionality of 18 U.S.C. § 922(g)(4) under the Second and Fifth Amendments, as well as his claim that involuntary commitment under MHL § 9.27 does not fall within the federal provision for failure to state a claim.  The Court further recommends that the dismissal be with prejudice in that the Court finds, based upon Supreme Court and Second Circuit precedent cited herein, that the deficiencies in Plaintiff’s claims are substantive and cannot be corrected by a better pleading.

The Court has found that the exclusive remedy for Plaintiff’s state law claims against the federal agencies and federal officials and employees acting in their official capacities is an action against the United States under the FTCA.  Therefore, the Court recommends that Plaintiff’s state law claims be dismissed with prejudice against all of the Federal Defendants except for the United States and Lombardo and Wysopal in their individual capacities.  As to the United States, the Court recommends that the claims be dismissed for failure to exhaust.15   The Court further recommends that the state law tort claims against Lombardo and Wysopal in their individual capacities be dismissed for lack of subject matter jurisdiction.

ACCORDINGLY, it is hereby

ORDERED, that Plaintiff’s IFP Application, as corrected (Dkt. Nos. 2 and 4), be

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14   Plaintiff should also be directed to keep in mind that he will not be able to obtain diversity jurisdiction over his state law claims against the St. Joseph’s Defendants if Lombardo and Wysopal are residents of Florida, as is Plaintiff, and are included as defendants in the action.

15   The Court also notes that Plaintiff’s complaint is devoid of factual allegations stating a claim against any of the Federal Defendants on any of his state law claims.
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GRANTED solely for purposes of this initial review; and it is

RECOMMENDED that Plaintiff’s complaint (Dkt. No. 1) BE DISMISSED IN ITS ENTIRETY on initial review under 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); and it is further

RECOMMENDED that the following claims BE DISMISSED WITH PREJUDICE: (1) Plaintiff’s § 1983 claim against St. Joseph’s Defendants, St. Joseph’s Hospital Health Center, Briscoe, O’Connor, French, Levine, Tremiti, Roman, Spunelka, Constantine, Feldman, Rybak, Cate, Ruscitto, Seifter, Price, Welch, Gilbert, and John Does 1-5 ; (2) Plaintiff’s § 1983 and state law claims against State Defendants OMH, NYDCJS, Sullivan, Pepper, Green, and Schneiderman; (3) Plaintiff’s Bivens claims against Federal Defendants the United States, DOJ, FBI, ATF,  Lynch, Comey, Brandon, NCIS, the Federal John Does 1-5 and Lombardo and Wysopal in their official capacities; (4) Plaintiff’s claim against all of the Federal Defendants that 18 U.S.C. § 922(g)(4) violates his constitutional rights under the Second and Fifth Amendments and that MHL § 9.27 does not fall within § 922(g)(4); and (5) Plaintiff’s state law claims against all Federal Defendants with the exception of the United States and Defendants Lombardo and Wysopal sued in their individual capacities; and it is further

RECOMMENDED that the following claims BE DISMISSED WITHOUT PREJUDICE: (1) Plaintiff’s state law claims against the St. Joseph’s Defendants, St. Joseph’s Hospital Health Center, Briscoe, O’Connor, French, Levine, Tremiti, Roman, Spunelka, Constantine, Feldman, Rybak, Cate, Ruscitto, Seifter, Price, Welch, Gilbert, and John Does 1-5 for lack of subject matter jurisdiction; (2) Plaintiff’s Bivens claims against Federal Defendants Lombardo and Wysopal in their individual capacities for failure to state a claim; (3) Plaintiff’s state law claims against the United States for failure to exhaust under the FTCA; and (4) Plaintiff’s state law claims against Lombardo and Wysopal for lack of subject matter jurisdiction;

and it is hereby

ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report- Recommendation, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report.  Such objections shall be filed with the Clerk of the Court.  FAILURE  TO OBJECT TO THIS REPORT WITHIN  FOURTEEN  DAYSWILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993)(citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.

Dated: November 30 , 2015                              Therese Wiley Dancks
Syracuse, New York                                          United States Magistrate Judge

UMESH HEEDENIYA,
Plaintiff,
                                                     ANSWER TO FIRST AMENDED COMPLAINT AND JURY DEMAND
-vs-                                               Civil Action No. 5:15-cv-01238 [GTS-TWD]

ST. JOSEPH'S HOSPITAL HEALTH CENTER; ROGER GARY LEVINE, MD; LISA MARIE O'CONNOR, MD; GEORGE O. TREMITI, MD; HORATIUS ROMAN, MD; JOANNE MARY FRENCH, RN; WENDY BRISCOE, RN; SUSAN LYNN CATE, LMFT; ROSALINE SPUNELKA, RN; ROBERT MICHAEL CONSTANTINE, MD; MITCHELL BRUCE FELDMAN, MD; CYNTHIA A. RYBAK, NP; KATHRYN HOWE RUSCIITO, PRESIDENT and CEO; LOWELL A. SEIFTER, JD, SENIOR VP and GENERAL COUNSEL; MEREDITH PRICE, VP of FINANCIAL SERVICES and CFO; DEBORAH WELCH, VP; GAEL GILBERT, RN, MBA, DIRECTOR; SJHHC DOES 1-5 INCLUSIVE,
Defendants.
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1.        DENIES the allegations contained in paragraphs "1", "31", "54", "81", "82", "87", "88", "89", "90", "125", "126", "142", "147", "149", "151", "152", "154", "160", "163", "169", "172", "173", "179", "181", "182", "191", "192", "193", "194", "195", "196", "197", "198", "203", "206", "207'', "208", "209", "210", "215", "216", "217", "218", "219", "220", "221", "222", "223", "224", "225", "237", "238", "239", "241", "242", "243", "244", "254", "255", "256", "262", "263", "265", "267", "271", "272", "273", "274", "276", "281", "282" and "293" of plaintiffs first amended complaint.

2.        DENIES knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs "2", "4", "5", "6", "7", "8", "9", "11", "12", "13", "14", "15", "16", "17'', "18", "19", "20", "21", "25", "26", "27", "32", "33", "36", "37", "38", "39", "40", "41", "42", "43", "44", "45", "46", "47", "48", "49", "50", "51", "52", "53", "55", "56", "57", "58", "59", "60", "61", "62", "63", "64", "65", "66", "67", "68", "69", "70", "71", "72", "73", "74", "75", "76", "77", "78", "79", "80", "83", "86", "91", "92", "93", "94", "95", "96", "97", "98", "99", "100", "101", "102", "103", "104", "105", "106", "107'', "108", "109", "110", "111", "112", "113", "114", "115", "116", "117'', "118", "119", "120", "123", "124", "127", "128", "129", "130", "131", "132", "133", "134", "135", "136", "137", "138", "139", "140", "141", "143", "144", "145", "146", "148", "150", "153", "156", "157'', "158", "159", "161", "162", "164", "165", "166", "167", "168", "170", "171", "174", "185", "187", "190", "199", "200", "201", "202", "204", "205", "211", "212", "213", "226", "227", "228", "229", "230", "231", "232", "233", "234", "235", "236", "240", "245",  "246", "247", "248", "253", "275", "277", "278", "279", "280", "283", "302", "303", "306", "308" and "309" of plaintiffs first amended complaint.

3.         ADMITS the allegations contained in paragraphs "3", "24", "84", "85", "121", "122", "180", "'183", "184", "186", "188" and "189" of plaintiffs first amended complaint.

4.          To the extent the allegations contained in paragraphs "22", "23", "28", "29", "30", "214", "249", "250", "251", "257'', "258", "259", "260", "261", "264", "266", "268", "269",  "270", "284", "285", "286", "287'', "288", "289", "290", "291", "292", "294", "295", "296", "297", "298", "299", "300", "301", "304", "305", "307", "310", "311" and "312" of plaintiffs first amended complaint contain conclusions of law, no response is required;
otherwise DENIES the allegations contained in paragraphs "22", "23", "28", "29", "30", "214", "257'', "258", "259", "260", "261", "264", "266", "268", "269", "270", "284", "285", "286", "287'', "288", "289", "290", "291", "292", "294", "295", "296", "297", "298", "299", "300", "301", "304", "305", "307", "310", "311" and "312".

5.         To the extent the allegations contained in paragraphs "34" and "35" of plaintiff's first amended complaint contain conclusions of law, no response is required.

6.         To the extent the allegations contained in paragraphs "155", "175", "176", "177" and "178" of plaintiff's first amended complaint contain conclusions of law, no response is required; otherwise DENIES knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs "155", "175", "176", "177" and "178".

7.         DENIES the allegations contained in paragraphs "10" and "252" of plaintiff's first amended complaint in the form alleged.

8.         In response to paragraph "313" of plaintiff's first amended complaint, the answering defendant restates and incorporates by reference his answers to the allegations contained in paragraphs "1" through "312" of plaintiff's first amended complaint.

9.          DENIES the allegations contained in paragraphs "314" and "315" of plaintiff's first amended complaint in the form alleged.

10.       To the extent the allegations contained in paragraph "316", "317" and "318" contains conclusions of law, no response is required; otherwise DENIES the allegations contained in paragraph "316", "317" and "318".

11.       DENIES knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs "319", "320" and "321" of plaintiffs first amended complaint.

12.       DENIES the allegations contained in paragraphs "322", "323", "324", "325", "326" and "327" of plaintiffs first amended complaint.

13.      In response to paragraph "328" of plaintiffs first amended complaint, the answering defendant restates and incorporates by reference his answers to the allegations contained in paragraphs "1" through "327" of plaintiffs first amended complaint.

14.       DENIES the allegations contained in paragraphs "329", "330", "331", "332" and "333" of plaintiffs first amended complaint.

15.      In response to paragraph "334" of plaintiffs first amended complaint, the answering defendant restates and incorporates by reference his answers to the allegations contained in paragraphs "1" through "333" of plaintiffs first amended complaint.

16.       DENIES the allegations contained in paragraphs "335", "336", "337", "338", "339 and "340" of plaintiffs first amended complaint in the form alleged.

17.       In response to paragraph "341" of plaintiffs first amended complaint, the answering defendant restates and incorporates by reference his answers to the allegations contained in paragraphs "1" through "340" of plaintiffs first amended complaint.

18.      DENIES the allegations contained in paragraphs "342", "343", "344", "345", "346", "347", "348", "349", "350", "351", "352", "353", "354" and "355" of plaintiffs first amended complaint in the form alleged.

19.      In response to paragraph "356" of plaintiffs first amended complaint, the answering defendant restates and incorporates by reference his answers to the allegations contained in paragraphs "1" through "355" of plaintiffs first amended complaint.

20.       DENIES the allegations contained in paragraphs "357", "338", "359", "360", "361" and "362" of plaintiffs first amended complaint in the form alleged.

25.       Plaintiffs claims for punitive damages violate and are, therefore, barred by the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments of the Constitution of the United States of America on the following non-exclusive grounds:

(a) it is a violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution to impose punitive damages, which are penal in nature, against a civil defendant upon the plaintiffs satisfying a burden of proof which is less than the "beyond a reasonable doubt" burden of proof required in criminal cases;

(b) the procedures pursuant to which punitive damages are awarded may result in the award of joint and several judgments against multiple defendants for different alleged acts of wrongdoing, which infringes the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution.

(c) the procedures pursuant to which punitive damages are awarded fail to provide a reasonable limit on the amount of the award, which thereby violate the Due Process Clause of the Fourteenth Amendment of the United States Constitution;

(d)  the procedures pursuant to which punitive damages are awarded fail to provide specific standards for the amount of the award of punitive damages which thereby violate the Due Process Clause of the Fourteenth Amendment of the United States Constitution;

(e)  the procedures pursuant to which punitive damages are awarded result in the imposition of different penalties for the same or similar acts and thus violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution;

(f)  the procedures pursuant to which punitive damages are awarded permit the imposition of punitive damages in excess of the maximum criminal fine for the same or similar conduct, which thereby infringes the Due Process Clause of the Fifth and Fourteenth Amendments of the United States Constitution;

(g)  the procedures pursuant to which punitive damages are awarded permit the imposition of excessive fines in violation of the Eighth Amendment of the United States Constitution;

(h)  the award of punitive damages to the plaintiff in this action would constitute a deprivation of property without due process of law; and

(i)  the procedures pursuant to which punitive damages are awarded permit the imposition of an excessive fine and penalty.

35.       Plaintiff has failed to sufficiently plead any cause of action against the answering defendant.

DATED: July 6, 2016        SMITH, SOVIK, KENDRICK & SUGNET, P.C.
                                      By: __________________
                                      Kevin E. Hulslander, Esq.
                                      Bar Roll No. 103027
                                      Attorneys for Defendant Roger Gary Levine, M.D.
                                      250 South Clinton Street, Suite 600
                                      Syracuse, New York 13202
                                      (315)-474-2911

Demand is hereby made for a jury trial on all issues.

                                      SMITH, SOVIK, KENDRICK & SUGNET, P.C.
                                      By: _______________
                                      Kevin E. Hulslander, Esq.
                                      Bar Roll No. 103027

TO: Umesh Heendeniya
Plaintiff Pro Se
P.O. Box 5104
Spring Hill, FL  34611

Robert John Smith, Esq (CEO and Partner; Registration Number: 1909571 ; RJS@CCF-Law.com ; Bar Roll #: 102628)
Jennifer L. Wang nee Nuhfer, Esq (Associate; Registration Number: 4281762 ; JLW@CCF-Law.com ; Bar Roll #: 516323)
COSTELLO, COONEY & FEARON, PLLC
Attorneys for St. Joseph's  Hospital Health Center, Joanne Mary French, RN, Wendy Briscoe, RN, Susan Lynn Cate, LMFT, Cynthia A. Rybak, NP, Kathry Howe Ruscitto, President & CEO, Lowell A. Seifter, JD, Senior VP & General Counsel, Meredith Price, VP of Financial Services & CFO,
Deborah Welch, VP and Gael Gilbert, RN, MBA.
500 Plum Street- Suite 300
Syracuse, NY  13204

I hereby certify that on July 6, 2017, I electronically filed the foregoing answer to first amended complaint and jury demand with the Clerk of the District Court using the CM/ECF system on the following:

Robert J. Smith, Esq. rjs@ccf-law.com

I also certify that on July 6, 2016, I served an identical copy the foregoing notice of appearance via United States First Class Mail on the following:

Umesh Heendeniya, Plaintiff Pro Se
P.O. Box 5104
Spring Hill, FL  34611

By:  Diane Devine
SMITH, SOVIK, KENDRICK & SUGNET, P.C.

UMESH HEENDENIYA,
Plaintiff,                            Civil Action No. 5:15-cv-01238 [GTS-TWD]
                                          Chief U.S. District Judge Glenn T. Suddaby
-vs-                                    ATTORNEY AFFIDAVIT

ST. JOSEPH'S HOSPITAL HEALTH CENTER; ROGER GARY LEVINE, MD; LISA MARIE O'CONNOR, MD; GEORGE O. TREMITI, MD; HORATIUS ROMAN, MD; JOANNE MARY FRENCH, RN; WENDY BRISCOE, RN; SUSAN LYNN CATE, LMFT; ROSALINE SPINELLA, RN; ROBERT MICHAEL CONSTANTINE, MD; MITCHELL BRUCE FELDMAN, MD; CYNTHIA A. RYBAK, NP; KATHRYN HOWE RUSCITTO, PRESIDENT and CEO; LOWELL A. SEIFTER, JD, SENIOR VP and GENERAL COUNSEL; MEREDITH PRICE, VP of FINANCIAL SERVICES and CFO; DEBORAH WELCH, VP; GAEL GILBERT, RN, MBA, DIRECTOR; SJHHC DOES 1-5 INCLUSIVE,
Defendants.
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STATE OF NEW YORK          )
COUNTY OF ONONDAGA    )  ss.:

ROBERT J. SMITH, being duly sworn, deposes and says:

1. I am an attorney duly licensed and admitted to practice law in the State of New York and am a member of the law firm of Costello, Cooney & Fearon, PLLC, attorneys for the defendants, St. Joseph’s Hospital Health Center, Susan Lynn Cate; Wendy Briscoe, RN; Joanne French, RN; Cynthia Rybak, NP; Rosaline Spinella, RN (improperly sued as Roasline Spunelka, RN); Kathryn Howe Ruscitto; Lowell Seifter; Meredith Price (improperly sued a Meridith Price); Deborah Welch and Gael Gilbert, (hereinafter collectively “Defendants”).  As such, I am fully familiar with the facts and proceedings heretofore had in this action.

2. I submit this affidavit in support of Defendants’ application for an Order pursuant to Rule 2(b)(6) of the Federal Rules of Civil Procedure dismissing the Complaint on the grounds: (a) there are no allegations in the Plaintiff’s Amended Complaint against several of the named Defendants, and, thus, those Defendants should be dismissed from this lawsuit; (b) the Americans With Disability Act/Rehabilitation Act claims should be dismissed as against the Defendants as there is no viable claim against an individual, and Plaintiff has failed to plead a cause of action against St. Joseph’s Hospital Health Care; (c) any claim under 42 U.S.C. 1983 must be dismissed under the law of the case doctrine; (d) any claims under 42 U.S.C. §1985 or §1986 must be dismissed for failure to plead a cause of action against the Defendants; (e) the state law claims are barred by the statute of limitations; (f) Plaintiff has not alleged a prima facie cause of action for negligent infliction of emotional distress/intentional infliction of emotional distress; and (g) there is no civil cause of action for perjury.

3. Prior to addressing the issues raised in the preceding paragraph, it is necessary to discuss the facts and circumstances surrounding this motion.

4. On or about October 19, 2015, Plaintiff, Umesh Heendeniya, filed an action in the Northern District of New York. (Dkt. N1).   Plaintiff appears pro se in this action.   The complaint named thirty-three defendants and ten John Does. (Dkt. No. 1).  The Complaint named, inter alia, the above-listed Defendants as parties to the action.   The Complaint also named physicians, New York State defendants, as well as Federal defendants. (Dkt. No. 1).

5. The Defendants were never personally served with the Complaint. (Dkt. No. 1).

6. The Complaint appeared to arise out of the alleged prohibition under 18 U.S.C. 922(g)(4) on Plaintiff’s ability to receive a firearm shipped in interstate or foreign commerce as a result of his claimed April 2013 involuntary commitment to the Psychiatric Ward at St. Joseph’s Hospital Health Center. (Dkt. No. 1; Dkt. No. 6 [Order and Report - Recommendation of United States Magistrate Wiley Dancks], pp. 1-2).

7. As against St. Joseph’s, St. Joseph’s administrators, St. Joseph’s general counsel,  St. Joseph’s nurses, and the physicians, Plaintiff alleged a 1983 cause of action, as well as several state law claims, including “medical negligence” and various others. (Dkt. No. 1, ¶¶ 117-164).

8. On or about October 26,2015, Plaintiff made an application to proceed in forma pauperis (Dkt. No. 2. Dkt. No. 4).

9. By Order of United States Magistrate Wiley Dancks, filed November 30, 2015, Plaintiffs application to proceed informa pauperis was granted “solely for purposes of this initial review”. (Dk No. 6 [Order and Report - Recommendation of United States Magistrate Wiley Dancks], pp. 30-31).

10. The Order also, sua sponte:

a. Recommended that Plaintiffs Complaint (Dkt. No. 1) be dismissed in its entirety on initial review under 28 U.S.C. 1951(e)(2)(B)(i)-(iii); and further

b. Recommended that the following relevant claims be dismissed with prejudice: Plaintiffs 1983 claim against St. Joseph’s Defendants, St. Joseph’s Hospital Health Center, Defendant Briscoe, Defendant O’Connor, Defendant French, Defendant Levine, Defendant Tremiti, Defendant Roman, Defendant Spunelka, Defendant Constantine, Defendant Feldman, Defendant Rybak, Defendant Cate, Defendant Ruscitto, Defendant Seifter, Defendant Price, Defendant Welch, Defendant Gilbert, and John Does 1-5; and further

c. Recommended that the following relevant claims be dismissed without prejudice as there was not complete diversity jurisdiction and Plaintiff did not allege that the amount in controversy exceeded $75,000.00: Plaintiffs state law claims against St. Joseph’s Defendants, St. Joseph’s Hospital Health Center, Defendant Briscoe, Defendant O’Connor, Defendant French, Defendant Levine, Defendant Tremiti, Defendant Roman, Defendant Spunelka, Defendant Constantine, Defendant Feldman, Defendant Rybak, Defendant Cate, Defendant Ruscitto, Defendant Seifter, Defendant Price, Defendant Welch, Defendant Gilbert, and John Does 1-5. (Dk No. 6 [Order and Report - Recommendation of United States Magistrate Wiley Dancks], p. 31).

11. By Order of Chief United States District Judge Glenn T. Suddaby, filed February 25, 2016,  this  Court accepted  and  adopted  in  its  entirety  Magistrate  Judge   Danck’s Report-Recommendation. (Dk No. 20, p. 12).

12. This  Court  further  Ordered  that  the  all  of the  claims  asserted  in Plaintiffs Complaint (Dkt. No. 1) are dismissed with prejudice except for the following four claims, which shall be dismissed with prejudice unless, within 30 days of the date of the Decision and Order , Plaintiff files an Amended Complaint that corrects the pleading defects identified by Magistrate Judge Danck’s Report-Recommendation, including, as relevant herein: Plaintiffs state law claims against St. Joseph’s Defendants, St. Joseph’s Hospital Health Center, Defendant Briscoe, Defendant O’Connor, Defendant French, Defendant Levine, Defendant Tremiti, Defendant Roman, Defendant Spunelka, Defendant Constantine, Defendant Feldman, Defendant Rybak, Defendant Cate, Defendant Ruscitto, Defendant Seifter, Defendant Price, Defendant Welch, Defendant Gilbert, and John Does 1-5. (Dk No. 20, p. 12).

13. Finally, this Court ordered that Plaintiffs Amended Complaint shall be a complete pleading that supersedes his original Complaint in all respects and shall not attempt to reassert any claims that have been dismissed with prejudice in this Decision and Order. (Dkt. No. 20, p. 12).

14. On March 25, 2016, Plaintiff filed an Amended Complaint against the St. Joseph defendants, and the physicians.  No claims appear to be asserted against the New York Defendants, or the Federal Defendants. (Dkt. No. 21).

15. By Order, filed April 19, 2016, Magistrate Judge Danck’s issued an Order that the Amended Complaint states a claim sufficient to survive initial review.   Magistrate Judge Danck’s explicitly held that the “Court takes no position on whether the claims asserted by Plaintiff in his Amended Complaint might survive a properly filed motion to dismiss” (Dkt. N 24, p. 2).     In this finding, Magistrate Judge Dancks addressed the state law claims and found that there was now complete diversity of jurisdiction and that the amount in controversy had been plead. (Dkt. No. 24, p. 2).  Magistrate Jude Dancks also held that Plaintiff may continue to proceed with this matter in forma pauperis. (Dkt. No. 24).

16. A liberal reading of the Amended Complaint asserts claims against the Defendants as follows: (a) medical malpractice/medical negligence, (b) intentional infliction of emotional distress, (c) negligent infliction of emotional distress, (d) Violation of Title III of the Americans with Disabilities Act (“ADA”), (e) Violation of Section 540 of the Rehabilitation Act, (f) Violation of Title IV of the ADA, (g) 42 U.S.C. 1983; (h) 42 U.S.C. §1985 and §1986; and (i) perjury. (See generally Dkt. No. 21).

17. On or about June 7,2016, Defendants were served with the Amended Complaint.

18. Defendants now timely move to dismiss Plaintiffs Amended Complaint in its entirety.

20. As more fully detailed in the accompanying Memorandum of Law, Plaintiff has brought this action against a number of St. Joseph’s Defendants with regard to whom the Amended Complaint, other than identifying them, is silent or does not allege any purported culpable conduc (See generally Dkt. No. 21).   Those individuals include: (a) Kathryn Howe Ruscitto, President and CEO; (b) Lowell A. Seifter, Senior VP and General Counsel; (c) Meredith Price, VP of Financial Services and CFO; (d) Deborah Welch, VP; (e) Gael Gilbert, RN, MBA and Director of St. Joseph’s Psychiatric Ward; and (f) St. Joseph’s John Does 1-5. (See generally Dkt. No. 21).   As such, the Amended Complaint should be dismissed as against them.   (See Defendants’ Memorandum of Law, Point I).

21. To  the  extent  that this  Court finds that Plaintiff alleges  a  “negligent  supervision”/ “negligent training” claim as against Defendant Ruscitto, Defendant Gilbert, Defendant Price, Defendant Seifter, Defendant Welch, and/or St. Joseph’s Hospital Health Center, this claim should be dismissed. (Dk No. 21, ¶196, ¶197) (See Defendants’ Memorandum of  Law, Point I).

22. In his Amended Complaint Plaintiff has only asserted conclusory allegations, which are insufficient as a matter of law. (Dkt. No. 21, ¶196, ¶197) (See Defendants’ Memorandum of Law, Point I).

23. Moreover, Plaintiff cannot allege a cause of action against the Defendants for negligent supervision/negligent training where Plaintiff concedes in his allegations themselves that the employees were acting in the scope of their employmen   The only recovery as against St. Joseph’s Hospital Health Center, would be through a theory of respondeat superior.   (See Defendants’ Memorandum of Law, Point I).

24. Furthermore, St. Joseph’s Hospital Health Center, as an employer, is not liable under a respondeat  superior theory as all of the claims against the individual defendants should be dismissed. (See Defendants’ Memorandum of Law, Point II-IX).

25. Alternatively, for the reasons detailed below, the claims asserted against all Defendants in this lawsuit should be dismissed as a matter of law.   (See Defendants’ Memorandum of Law, Point II-IX).

27. It is respectfully submitted that Plaintiffs ADA Title III claim and Rehabilitation Act claims should be dismissed against the individually named defendants as there is no cause of action under this Title for this relief.   (See Defendants’ Memorandum of Law, Point II(A)(i)).

28. Further, Plaintiffs ADA Title III and Rehabilitation Act claims against St. Joseph’s Health Center should be dismissed as Plaintiff has not pled a cause of action under this Title as against it. (See Defendants’ Memorandum of Law, Point II(A)(ii)).

29. To recover under a Title III claim/Rehabilitation Act claim a plaintiff must demonstrate (1) that he is a “qualified individual” with a disability; (2) that the defendants are subject to one of the Acts; and (3) that he was “denied the opportunity to participate in or benefit from defendants' services, programs, or activities, or was otherwise discriminated against by defendants, by reason of his disability. (See Defendants’ Memorandum of Law, Point II(A)(i)).

30. The allegations contained in Plaintiff s Amended Complaint do not assert these factors and do not allege facts which even relate to the heart of Title Ill’s purpose - which proscribes discrimination against the disabled in public accommodations. Rather, in his Amended Complaint, Plaintiff appears to allege he was involuntarily committed and there was a violation of his Second Amendment rights in regard to his right to possess firearms. (Dk No. 21, ¶¶342-355).   Clearly these claims do not relate to the purpose of Title III recovery, or properly plead a claim for such relief.   (See Defendants’ Memorandum of Law, Point II(A)(i)).

31. Moreover, these allegations - now couched by Plaintiff as ADA claims-   simply mirror those contained in Plaintiffs original Complaint, in which he asserted a 42 U.S.C. 1983 claim. (See generally Dkt. No. 1).   This Court has already dismissed the Section 1983 claim with prejudice. (Dkt. No.6 [Order and Report - Recommendation of United States Magistrate Wiley Dancks], p. 31; Dkt. No. 20, p. 12 [adopting Magistrate Judge Danck’s Report and Recommendation that the Section 1983 cause of action be dismissed with prejudice against all Defendants]).    In turn, it is submitted that Plaintiff should not now be able to resurrect the Section 1983 claim by pleading it under an ADA claim. (See Defendants’ Memorandum of Law, Point II(A)(i)).

32. Therefore, for the forgoing reasons, the Title III claim against St. Joseph’s should be dismissed.

33. Plaintiffs ADA Title V claim should be dismissed against the individually named defendants as there is no cause of action under this Title for this relief  (See Defendants’ Memorandum of Law, Point II(B)(i)).

34. Further, Plaintiff fails to plead a cause of action against St. Joseph’s under Title V.  (See Defendants’ Memorandum of Law, Point II(B)(ii)).

35. To establish a prima facie case of retaliation under Title V of the ADA, a plaintiff must demonstrate that: (a) he engaged in protected activity, (b) the defendant was aware of this activity, (c) the defendant took adverse action against him, and (d) a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse action. (See Defendants’ Memorandum of Law, Point II(B)(ii)).

36. Plaintiff contends that Defendants were “retaliating against [Plaintiff] for voicing his constitutional rights in regard to firearms”, and retaliated against Plaintiff to “ensure that his firearm rights are lost permanently”. (Dk No. 21,1(348). On the face of his Complaint, Plaintiff has failed to even allege that he was engaged in protected activity under the ADA, and that the Defendants were aware of this activity. (See Defendants’ Memorandum of Law, Point II(B)(ii)).

37. Moreover, the allegation of retaliatory amicus also is not sufficient, as there must be a causal connection between the protected activity under the ADA and the retaliatory action. Here, there is no casual connection alleged. (See Defendants’ Memorandum of Law, Point II(B)(ii)).

38. Additionally, as stated above, the Title V claim, like the Title III claim, merely parrots that of Plaintiffs dismissed Section 1983 claim.   Plaintiff should not be allowed to assert this already dismissed cause of action. (Dk No. 6, p. 31; Dkt. No. 20, p. 12).    Therefore, Plaintiffs Title V claim under the ADA should be dismissed.

39. To the extent that Plaintiff still asserts a cause of action under 42 U.S.C. § 1983, it is submitted that, pursuant to the law of the case doctrine, that claim should be dismissed. (See Defendants’ Memorandum of Law, Point III).

40. As noted above, this Court has already dismissed Plaintiffs Section 1983 claim with prejudice. (Dk No. 6, p. 31; Dkt. No. 20, p. 12). Moreover, this Court ordered that Plaintiff’s Amended Complaint “shall not attempt to reassert any claims that have been dismissed with prejudice in this Decision and Order.” (Dkt. No. 20, p. 12). Indeed, Plaintiff cannot now assert causes of action under different titles, when the claims are in actuality ones under §1983. This is prohibitive under this Court’s prior Order. (Dkt. No. 20, p. 12) (See Defendants’ Memorandum of Law, Point III).

41. As detailed in the accompanying Memorandum of Law, to any extent Plaintiff claims relief pursuant to pursuant to 42 U.C. § 1985 based on his conclusory allegations of “conspiracy” as “among the SJHHC defendants”, these claims should be dismissed. (Dkt. No. 21, ¶¶357-362) (See Defendants’ Memorandum of Law, Point IV).

42. In order to survive a motion to dismiss conspiracy claims under section 1985, the plaintiff must allege: (1) a conspiracy; (2) for the purpose of depriving either directly or indirectly, any person or class of person of the equal protection of the laws; or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.  (See Defendants’ Memorandum of Law, Point IV).

43. Here, there is positively no allegation Defendants conspired to violate Plaintiff’s constitutional rights which would support any claim under 1985.  (Dkt. No.  21, ¶¶357-362). Furthermore, there is no allegation that the “conspiracy” involving Defendants was motivated by “some racial or otherwise class-based invidious discriminatory animus behind the conspirator’s action,” as required to maintain such a claim.   Therefore, the District Court should dismiss any §1985 claim. (See Defendants’ Memorandum of Law, Point IV).

44. Any claim of a violation of 42 U.S.C. 1986 should be dismissed, as § 1985 liability is a necessary predicate to a § 1986 claim. (See Defendants’ Memorandum of Law, Point V).

45. As addressed above, Plaintiff failed to allege facts necessary to state a cause of action under 1985, and thus no § 1986 liability can exist.  Failure to satisfy this necessary predicate requires the dismissal of appellant’s §1986 claim. Therefore, the District Court should dismiss any §1986 claim. (See Defendants’ Memorandum of Law, Point V).

47. First, Plaintiffs claim for intentional infliction of emotional distress is time-barre (See Defendants’ Memorandum of Law, Point VI(A)).

48. A claim for an intentional tort is governed by a 1 year statute of limitation  (See Defendants’ Memorandum of Law, Point VI(A)).

49. Therefore, Plaintiffs claim for intentional infliction of emotional distress is time-barred as against the Defendants as the cause of action accrued at the latest on April 17,2013, when he was a patient at St. Joseph’s.   This was more than 21/2  before Plaintiffs Complaint was filed on October 19, 2015. (See Defendants’ Memorandum of Law, Point VI(A)).

50. Second, Plaintiffs medical malpractice claims should be dismissed. (See Defendants’ Memorandum of  Law, Point VI(B)).

51. A claim for medical malpractice is governed by a 2 1/2 year statute of limitation (See Defendants’ Memorandum of Law, Point VI(B)).

52. Plaintiffs medical malpractice claims should be dismissed as time-barred as the claim accrued, at the latest, on April 17,2016 when he last alleged to be a patient at St. Joseph’ This was more than 2 1/2 years before he filed his Complaint on October 19, 2015. (See Defendants’ Memorandum of Law, Point VI(B)).

53. Plaintiff has not sufficiently plead a cause of action for negligent infliction of emotional distress or intentional infliction of emotional distress. Therefore, Plaintiffs causes of action must be dismissed.  (See Defendants’ Memorandum of Law, Point VII).

54. Under New York law, the torts of  intentional and negligent infliction of emotional distress share three common elements: (1) extreme and outrageous conduct, (2) a causal connection between the conduct and the injury, and (3) severe emotional distress. A claim based on intentional infliction of emotional distress also requires that the defendant intend to cause severe emotional distress (See Defendants’ Memorandum of Law, Point VII).

55. In this case, Plaintiff has not plead the requisite elements of either a negligent or intentional infliction of emotional distress claim.   The only allegations under these claims is that the Defendants, and more specifically Defendant Rybak and Defendant Spinella, provided an incorrect medical diagnosis on certain forms in order to involuntarily admit Plaintiff and to “neutralize [Plaintiffs] firearm rights.” (Dk No. 21, ¶329-333; ¶335-340).   The claimed allegations do not contain any “extreme and outrageous conduct” by the Defendants, which is required to withstand the pleading stages. (See Defendants’ Memorandum of Law, Point VII).

56. Thus, beyond the fact that the intentional infliction of emotional distress claim is time-barred (see Defendants’ Memorandum of Law Point VI(A), the claim should also be dismissed as the allegations do not rise to a sufficiently plead claim.   Additionally, the negligent infliction of emotional distress claim should also be dismissed as the allegations do not provide a basis for this claim. (See Defendants’ Memorandum of Law, Point VII).

58. In the alternative, if this Court finds that only state law claims survive Defendants’ motion to dismiss, it is respectfully requested that this Court decline to exercise supplemental jurisdiction over Plaintiffs state law claims.

 WHEREFORE, for the foregoing reasons and those set forth in the accompanying Memorandum of Law, it is respectfully submitted that this Court grant Defendants’ motion to dismiss in its entirety and for such other and further relief as this Court deems just and proper.

/s/ Robert J. Smith
Federal Bar. No. 102628

Subscribed and sworn to before me this 23rd day of June, 2016.
/s/ Carol A. Hayes

UMESH HEENDENIYA,
Plaintiff,                            Civil Action No. 5:15-cv-01238 [GTS-TWD]
                                          Chief U.S. District Judge Glenn T. Suddaby
-vs-                                    Memorandum of Law in Support of Motion
                                          to Dismiss

ST. JOSEPH'S HOSPITAL HEALTH CENTER; ROGER GARY LEVINE, MD; LISA MARIE O'CONNOR, MD; GEORGE O. TREMITI, MD; HORATIUS ROMAN, MD; JOANNE MARY FRENCH, RN; WENDY BRISCOE, RN; SUSAN LYNN CATE, LMFT; ROSALINE SPINELLA, RN; ROBERT MICHAEL CONSTANTINE, MD; MITCHELL BRUCE FELDMAN, MD; CYNTHIA A. RYBAK, NP; KATHRYN HOWE RUSCITTO, PRESIDENT and CEO; LOWELL A. SEIFTER, JD, SENIOR VP and GENERAL COUNSEL; MEREDITH PRICE, VP of FINANCIAL SERVICES and CFO; DEBORAH WELCH, VP; GAEL GILBERT, RN, MBA, DIRECTOR; SJHHC DOES 1-5 INCLUSIVE,
Defendants.
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Preliminary Statement.

Statement of Facts.

Argument.
Point I.
Point II.
Point III.
Point IV.
Point V.
Point VI.
Point VII.
Point VIII.
Point IX.

Conclusion.

ARGUMENT

POINT I

PLAINTIFF HAS NOT ASSERTED ANY ALLEGATIONS AGAINST
SEVERAL DEFENDANTS, AND, THEREFORE, THOSE
DEFENDANTS SHOULD BE DISMISSED FROM THIS LAWSUIT

Plaintiff has brought this action against a number of St. Joseph’s Defendants with regard to whom the Amended Complaint, other than identifying them, is silent or does not allege any purported culpable conduct. (See generally Dkt. No. 21). Those individuals include: (a) Kathryn Howe Ruscitto, President and CEO; (b) Lowell A. Seifter, Senior VP and General Counsel; (c) Meredith Price, VP of Financial Services and CFO; (d) Deborah Welch, VP; (e) Gael Gilbert, RN, MBA and Director of St. Joseph’s Psychiatric Ward; and (f) St. Joseph’s John Does  1-5. (See generally Dkt. No. 21).   It is respectfully submitted that these above-listed defendants be dismissed from this lawsuit as there is no cause of action asserted against them. See Grullon v. City of New Haven, 720 F.3d 133, 136 (2d Cir. 2013) (in a pro se action, the Court dismissing an action against a defendant “on the ground that the complaint contained no allegations against [the defendant]”); see also Gatling v. Bradt, 2012 WL 1120299, at *2 (W.D.N.Y. 2012).

To the extent that this Court finds that Plaintiff alleges a “negligent supervision”/ “negligent training” claim as against Defendant Ruscitto, Defendant Gilbert, Defendant Price, Defendant Seifter, Defendant Welch, and/or St. Joseph’s Hospital Health Center, this claim should be dismissed. (Dkt. No. 21, ¶196, ¶197).

To establish a claim for negligent supervision, plaintiffs must show (1) the employee caused them some harm, (2) the employer's lack of supervision, and (3) that the employer knew of the employee's propensity for the type of behavior that caused plaintiffs harm. See Simpson ex rel Simpson v. Uniondale Union Free School Dist., 702 F.Supp.2d 122, 135 (E.D.N.Y. 2010); see also Ross v. Mitsui Fudosan, Inc., 2 F.Supp.2d 522, 533 (S.D.N.Y.1998).   Conclusory allegations of negligent supervision are insufficient to overcome a motion to dismiss. See Richardson v. New York Univ., 202 A.D.2d 295, 296 (1st Dep't 1994).

In his Amended Complaint Plaintiff has only asserted conclusory allegations which are insufficient. (Dkt. No. 21, ¶196, ¶197).   Plaintiff merely states that Defendants Ruscitto, Gilbert, Seifter, and Welch “did not provide sufficient training to ensure that physicians and nurses at SJHHC have developed sufficient expertise in assessing the present dangerousness of patients who have attempted suicide or exhibited suicidal behavior prior to admission to the hospital,” and “did not engage in sufficient oversight of their clinical staff to ensure SJHHC physicians and nurses routinely focus on and apply all relevant factors related to a person’s dangerousness when deciding if a person warrants such a drastic remedy as involuntary psychiatric hospitalization.” (Dkt. No. 21, ¶196, ¶197).     These allegations are insufficient, and, thus, the claims should be dismissed. See Simpson, supra; Ross, supra.

Moreover, Plaintiff cannot allege a cause of action against the Defendants for negligent supervision/negligent training where Plaintiff concedes in his allegations themselves that the employees were acting in the scope of their employment.   The only recovery as against St. Joseph’s Hospital Health Center, would be through a theory of respondeat superior.   “Under New York law, where an employee acts within the scope of his or her employment, the employer cannot be held liable for a claim of negligent hiring, retention, or training.” Ahluwalia v. St. George's  University,  LLC,  63  F.Supp.3d 251,  263-64  (E.D.N.Y.  2014),  citing Barnville  v. Mimosa Cafe, 2014 WL 3582878, *2 (S.D.N.Y. July 10, 2014); Talavera v. Arbit,  18 A.D.3d 738, (2d Dep't 2005) (“Generally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee's negligence under a theory of respondeat superior  and  no  claim  may  proceed  against  the  employer  for  negligent  hiring,  retention, supervision or training.”) (italics added); Weinberg v. Guttman Breast & Diagnostic Inst, 254 A.D.2d 213 (1st Dep't 1998); Gurevich v. City of New York, 2008 WL 113775, *6 (S.D.N.Y. 2008). “The reason for this rule is that if the employee was not negligent, there is no basis for imposing liability on the employer, and if the employee was negligent, the employer must pay the judgment regardless of the reasonableness of the hiring or retention or the adequacy of the training.” Id.   Since the claims against these defendants were the failure to properly supervise and train the employees for acts within the scope of their employment (Dkt. No. 21, ¶196, ¶197), these causes of action must be dismissed.  Furthermore, St. Joseph’s Hospital Health Center, as an employer, is not liable under a respondeat superior theory as all of the claims against the individual defendants should be dismissed. (See Point II-IX, infra).

Alternatively, for the reasons detailed below, the claims asserted against all Defendants in this lawsuit should be dismissed as a matter of law.  (See Point II-DC, infra).

POINT II

PLAINTIFF’S AMERICANS WITH DISABILITIES ACT AND
REHABILITATION ACT CLAIMS SHOULD BE DISMISSED BECAUSE
THE INDIVIDUAL DEFENDANTS CANNOT BE LIABLE UNDER THESE
ACTS. AND PLAINTIFF HAS NOT ASSERTED A CAUSE OF ACTION
UNDER TITLE III OR TITLE V AS AGAINST ST. JOSEPH’S

It is respectfully submitted that Plaintiffs ADA Title III claim should be dismissed against the individually named defendants as there is no cause of action under this Title for this relief.       Further, Plaintiffs ADA Title III claim against St. Joseph’s Health Center should be dismissed as Plaintiff has not plead a cause of action under this Title as against it.

The ADA was enacted, in part, to assist in remedying the problems related to access by persons with disabilities to public facilities, employment, and transportation services. See Aquino v. Prudential Life and Cas. Ins. Co., 419 F.Supp.2d 259, 267-68 (E.D.N.Y. 2005); see also 42 U.S.C. §§ 12101-213.

As relevant to this lawsuit, Title III of the ADA proscribes discrimination against the disabled in public accommodations. See 42 U.S.C. § 12182(a) (“No individual shall be discriminated against on the basis of disability in the bill and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns ... or operates a place of public accommodation.”). The Rehabilitation Act of 1973, a predecessor to the ADA, was the original vehicle designed to address disability discrimination and “is narrower than the ADA's in that its provisions apply only to programs receiving federal financial assistance.” Aquino, supra, citing Powell v. Nat'l Bd. of  Med. Exam’rs, 364 F.3d 79, 85 (2d Cir.2004); 29 U.S.C. § 794(a) (2000). Section 504 of the Rehabilitation Act states:

No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. See 29 U.S.C. § 794.

Together, the Rehabilitation Act and Title III of the ADA prohibit discrimination against qualified disabled individuals by requiring that they receive “reasonable accommodations” that allow them to access and partake in public services and public accommodations. See Aquino, supra; Powell, 364 F.3d at 85, Henrietta D. v. Bloomberg, 331 F.3d 261, 273 (2d Cir. 2003); Felix v. New York City Transit  Auth., 324 F.3d 102,104 (2d Cir. 2003).

In  order  to  state  a  prima  facie  case  under  either  of these  Acts,  a  plaintiff must demonstrate (1) that he or she is a “qualified individual” with a disability; (2) that the defendants are subject to one of the Acts; and (3) that he was “denied the opportunity to participate in or benefit from defendants' services, programs, or activities, or was otherwise discriminated against by defendants, by reason of his disability. Henrietta D., 331 F.3d at 272.

First, a person is considered a “qualified individual” with a disability under the Act i f that individual (1) has “a physical or mental impairment that substantially limits one or more of the major life activities of such individual;” (2) has “a record of such an impairment;” or (3) is a person “regarded as having such an impairment.” 42 U.S.C. § 12102(2).

Second, the Act sets forth the private entities which are considered public accommodations subject to the ADA if the operations of such entities affect commerce. See 42 U.S.C. § 12181(7).  While a hospital is one of those entities, it must be shown, as detailed below, that the hospital failed to provide a plaintiff the opportunity to participate and benefit from its services. 42 U.S.C. § 12181(7)(F); Henrietta D., 331 F.3d at 272.  Individuals are not liable under Title III of the ADA. See Warren v. Goord, 2006 WL 1582385, *20 (W.D.N.Y.,2006).

Finally, a plaintiff must plead that he or she was “denied the opportunity to participate in or benefit from defendants' services, programs, or activities, or [was] otherwise discriminated against by defendants, by reason of [her] disability.” Henrietta D.,  331  F.3d at 272. “Quite simply, the demonstration that a disability makes it difficult for a plaintiff to access benefits that are available to both those with and without disabilities is sufficient to sustain a claim for a reasonable accommodation.” Id. at 277. In addition, an ADA plaintiff must demonstrate that a denial of benefits occurred “by reason of ... disability,” or in other words, the plaintiff must prove that the denial is “because of ”  the disability. See Olmstead v. L.C. by Zimring, 527 U.S. 581,601,119 S.Ct. 2176,144 L.Ed.2d 540 (1999) (Kennedy, J., concurring).

It is against this standard that Plaintiffs claims should be reviewed.

i. The Individual Defendants Cannot Be Held Liable Under Title III

It is well-settled law that an individual defendant cannot be held liable for a claim under Title III of the ADA. See Warren, supra (“nowhere within the ADA's statutory scheme is there any provision for a cause of action against an individual defendant, regardless of capacity, for any substantive violation of ADA Title[]   .  .  .  III”).  As such, any claim under Title Ill/Rehabilitation Act must be dismissed as against the individually named Defendants.

ii. Plaintiff Has Failed to Assert a Cause of Action Against Joseph’s Under Title III

Plaintiff has not plead any allegations to support a claim under Title III as against St. Joseph’s.    Plaintiffs claim under Title III wholly fails to assert how St. Joseph’s is a public accommodation  in  the  context  of  the  allegations  contained  in  the  Amended  Complaint. Additionally, Plaintiff does not claim that St.  Joseph’s denied him access to its facility or services provided therein, which is an allegation which needs to be asserted in a Title III claim. See e.g. Pappas v. Bethesda Hosp. Ass'n, 861 F.Supp. 616, 620 (S.D.Ohio 1994). Rather, in his Amended Complaint, Plaintiff appears to allege he was involuntarily committed and there was a violation of his Second Amendment rights in regard to his right to possess firearms. (Dkt. No. 21, ¶¶342-355).     Clearly these claims do not relate to the purpose of Title III recovery, or properly plead a claim for such relief.

Moreover, these allegations -  now couched by Plaintiff as ADA claims-  simply mirror those contained in Plaintiffs original Complaint, in which he asserted a 42 U.S.C. §1983 claim. (See generally Dkt. No. 1).   This Court has already dismissed the Section 1983 claim with prejudice. (Dkt. No. 6 [Order and Report -  Recommendation of United States Magistrate Wiley Dancks], p. 31; Dkt. No. 20, p. 12 [adopting Magistrate Judge Dancies’ Report and Recommendation that the Section 1983 cause of action be dismissed with prejudice against all Defendants]).     In turn, it is submitted that Plaintiff should not now be able to resurrect the Section 1983 claim by pleading it under an ADA claim.

Therefore, for the forgoing reasons, the Title HI claim against St. Joseph’s should be dismissed.

To establish a prima facie case of retaliation under Title V of the ADA, a plaintiff must demonstrate that:  (a) he engaged in protected activity,  (b) the defendant was aware  of this activity, (c) the defendant took adverse action against him, and (d) a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse action. See Fiorica v.  University of Rochester,  School of Nursing, 2008 WL 907371, *4 (W.D.N.Y. 2008); Sista v. CDC Ixis North America, Inc., 445 F.3d 161, 177 (2nd Cir., 2006). “Protected activity” is defined as “oppos[ing] any act or practice made unlawful by” the ADA. See 42 U.S.C. § 12203.

In this case, Plaintiff fails to plead a cause of action against St. Joseph’s.   Plaintiff contends that Defendants were “retaliating against [Plaintiff] for voicing his constitutional rights in regard to firearms”, and retaliated against Plaintiff to “ensure that his firearm rights are lost permanently”. (Dkt. No. 21, ¶348).   On the face of his Complaint, Plaintiff has failed to even allege that he was engaged in protected activity under the ADA, and that the Defendants were aware of this activity. See Fiorica, supra.  Moreover, the allegation of retaliatory amicus also is not sufficient, as there must be a causal connection between the protected activity under the ADA and the retaliatory action. See e.g. DiGianni v. Pearson, Inc., 2011 WL 1060718, at *3 (E.D.N.Y.  2011)(dismissal of Title V claim where plaintiff “offered no factual support whatsoever for the assertion that retaliatory animus played any role in the decision to deny plaintiffs request for test-taking accommodations”).  Here, there is no allegation to provide this needed causal nexus.  As such, the Title V claim should be dismissed.

Additionally, as stated above, the Title V claim, like the Title III claim, merely parrots that of Plaintiffs dismissed Section 1983 claim.  Plaintiff should not be allowed to assert this already dismissed cause of action. (Dkt. No. 6, p. 31; Dkt. No. 20, p. 12).

Therefore, for the foregoing reasons, Plaintiffs Title V claim under the ADA should be dismissed.

POINT III

PLAINTIFF’S 42 U .S.C § 1983 CAUSE OF ACTION SHOULD BE
DISMISSED PURSUANT TO THE LAW OF THE CASE DOCTRINE

POINT IV

PLAINTIFF’S 42 U.S.C. § 1985 CAUSE
OF ACTION SHOULD BE DISMISSED

To any extent Plaintiff claims relief pursuant to pursuant to 42 U.S.C. § 1985 based on his conclusory allegations of “conspiracy” as “among the SJHHC defendants”, these claims should be dismissed. (Dkt. No. 21, ¶¶357-362).

In order to survive a motion to dismiss conspiracy claims under section 1985, the plaintiff must allege: (1) a conspiracy; (2) for the purpose of depriving either directly or indirectly, any person or  class of person of the equal protection of the laws; or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. Faiaz v. Colgate University, 64 F.Supp.3d 336, 353-56 (N.D.N.Y. 2014), citing Bastuk v. County of Monroe, 2013 WL 6092517, *7 (W.D.N.Y.   2013).   The Supreme Court added this “class-based animus” requirement to Section 1985 to prevent it from being broadly and erroneously interpreted as providing a federal remedy for “all tortious, conspiratorial interferences with the rights of others.”  Malsh v. Garcia, 971 F.Supp.133 (S.D.N.Y. 1997){ TA \1 "Malsh v. Garcia, 971 F.Supp.133 (S.D.N.Y.  1997)" \s "Malsh v. Garcia, 971 F.Supp.133 (S.D.N.Y. 1997)" \c 1 }, citing Griffin v. Breckenridge, 403 U.S. 88, 101, 91 S.Ct. 1790, 1798 (1971){ TA \1"Griffin v. Breckenridge, 403 U.S. 88,101, 91 S.Ct. 1790,1798 (1971)" \s "Griffin v. Breckenridge, 403 U.S. 88, 101, 91 S.Ct. 1790,1798 (1971)" \c 1 }.  Such class-based animus must be alleged whether the Section 1985(3) claim regards private conspiracies or state action. See Puglisi v. Underhill Park Taxpayer Association, 947 F.Supp. 673 (S.D.N.Y. 1996){ TA \1 "Puglisi v. Underhill Park Taxpayer Association, 947 F.Supp. 673 (S.D.N.Y. 1996)" \s "Puglisi v. Underhill Park Taxpayer Association, 947 F.Supp. 673 (S.D.N.Y. 1996)" \c 1 }, referencing Griffin, 403 U.S. 88 and Conrad, 818 F.Supp. 559{ TA \s "Griffin v. Breckenridge, 403 U.S. 88, 101, 91 S.Ct. 1790, 1798 (1971)" }.  Applying that criteria to this action, it is clear Plaintiffs cause of action under Section l985 should be dismissed as a matter of law.

First, in order to state a claim pursuant to § 1985, a plaintiff must plead specific material facts which show the existence of a conspiracy.   Friends of Falon Gong v. Pacific Cultural Enterprise, Inc., 288 F.Supp.2d 273 (E.D.N.Y. 2003){ TA \1 "Friends of Falon Gong v. Pacific Cultural Enterprise, Inc., 288 F.Supp.2d 273 (E.D.N.Y. 2003)" \s "Friends of Falon Gong v. Pacific Cultural Enterprise, Inc., 288 F.Supp.2d 273 (E.D.N.Y. 2003)" \c 1 }; Schmitz v. Mars, Inc., 261 F.Supp.2d 1226 (D. Or. 2003){ TA \1 "Schmitz v. Mars, Inc., 261 F.Supp.2d 1226 (D.Or. 2003)" \s "Schmitz v. Mars, Inc., 261 F.Supp.2d 1226 (D. Or. 2003)" \c 1 }.  The failure to do so is fatal to such a claim. Baptiste v. New York City Transit Authority, 2004 WL 626198 (S.D.N.Y.  2004){ TA  \1 "Baptiste  v.  New York City Transit Authority, 2004 WL 626198 (S.D.N.Y. 2004)" \s "Baptiste v. New York City Transit Authority, 2004 WL 626198 (S.D.N.Y. 2004)" \c 1 ).

Here, there is positively no allegation Defendants conspired to violate Plaintiff’s constitutional rights which would support any claim under § 1985. (Dkt. No. 21, fl357-362). Furthermore, there is no allegation that the “conspiracy” involving Defendants was motivated by “some racial or otherwise class-based invidious discriminatory animus behind the conspirator’s action,” as required to maintain such a claim. See, e.g., Evans, 533 F.Supp.2d 523 {TA \s "Evans v. Chichester School District, 533 F.Supp.2d 523 (E.D. Pa 2008)" }; Zezulewicz, 290 F.Supp.2d 583; Knight,  303 F.Supp.2d 485;{ TA \s "Knight v. City of New York, 303 F.Supp.2d 485 (S.D.N.Y. 2004), aff’d 147 Fed.Appx 221 (2d Cir. 2005)" } Pollack v. Nash, 58 F.Supp.2d 294 (S.D.N.Y. 1999).   Rather, Plaintiff merely provides unsubstantiated and conclusory allegations of civil rights violations. (Dkt. No. 21, ffl|357-362).

Additionally, if the allegations contained in the Complaint are read by the Court to assert that the alleged conspirators were all employees of St. Joseph’s this claim also must be dismissed on the basis of the intracorporate conspiracy doctrine. (Dkt. No. 21,1(357).  “A conspiracy is not actionable under the civil rights laws if the alleged conspirators are employees of a single organization, and their actions were taken in the course of their employment. Faiaz at 353-356.

Therefore, the District Court should dismiss any §1985 and/or §1986 claims.

POINT V

PLAINTIFF’S 42 U .S.C § 1986 CAUSE
OF ACTION SHOULD BE DISMISSED

Any claim of a violation of 42 U.S.C.  §1986{ TA \s "42 U.S.C.§  1986" } should be dismissed.  Section 1986 imposes liability on an individual who has knowledge of wrongs prohibited under § 1985 yet fails to prevent them.   See, Young v. Suffolk County,  2010 WL 1424008 (E.D.N.Y. 2010){ TA \1 "Young v. Suffolk County, 2010 WL 1424008 (E.D.N.Y. 2010)"

\s "Young v. Suffolk County, 2010 WL 1424008 (E.D.N.Y. 2010)" \c  1 }, citing Thomas v.  Roach, 165 F.3d 137, 147 (2d Cir. 1999){ TA \1 "Thomas v. Roach, 165 F.3d 137, 147 (2d Cir. 1999)" \s "Thomas v. Roach,  165 F.3d 137,  147 (2d Cir.  1999)" \c 1 }; Koch v. Mirza, 869 F.Supp.  1031,  1039  (W.D.N.Y.  1999){  TA  \1  "Koch  v.  Mirza,,  869  F.Supp.  1031,  1039 (W.D.N.Y.  1999)"  \s  "Koch v.  Mirza,  869  F.Supp.  1031,  1039  (W.D.N.Y.  1999)"  \c  1 }. However, § 1985 liability is a necessary predicate to a § 1986 claim.  See Id., citing Brown v. City of Oneonta, 221 F.3d 329, 341 (2d Cir. 2000){ TA \1 "Brown v. City of Oneonta, 221 F.3d 329, 341 (2d Cir. 2000)" \s "Brown v. City of Oneonta, 221 F.3d 329, 341 (2d Cir. 2000)" \c 1 } (additional internal citations omitted); see also Sanchez v. Gazzillo, 2001 WL 715830 (E.D.N.Y. 2001){ TA \1 "Sanchez v. Gazzillo, 2001 WL 715830 (E.D.N.Y. 2001)" \s "Sanchez v. Gazzillo, 2001 WL 715830 (E.D.N.Y. 2001)" \c 1 }.

As addressed above in Point IV, infra, Plaintiff failed to allege facts necessary to state a cause of action under § 1985, and thus no § 1986 liability can exist.   Failure to satisfy this necessary predicate requires the dismissal of appellant’s §1986 claim.   See Young, 2010 WL 1424008{ TA \s "Young v. Suffolk County, 2010 WL 1424008 (E.D.N.Y. 2010)" }, referencing O’Bradovich v. McGuire, 325 F.Supp.2d 413, 426-27 (S.D.N.Y. 2004){ TA \1 "O’Bradovich v. McGuire,  325  F.Supp.2d 413,  426-27  (S.D.N.Y.  2004)"  \s  "O’Bradovich v.  McGuire,  325 F.Supp.2d 413, 426-27 (S.D.N.Y. 2004)" \c 1 } [holding “plaintiffs inability to state a claim for conspiracy under Section 1985 is, in turn, fatal to their Section 1986 claim”].

Therefore, the District Court should dismiss any §1986 claim.

POINT VI

PLAINTIFF’S CAUSES OF ACTION AGAINST THE DEFENDANTS
ARE BARRED BY THE STATUTE OF LIMITATIONS

Any intentional  tort  claims,  including  Plaintiffs  intentional  infliction  of emotional distress claim, are .time-barred.  As such, they must be dismissed.

Intentional  torts  are  subject  to  a  one-year  statute  of  limitations  in  New  York. C.P.L.R. §215(3); see McKenzie v. Dow Jones & Co., 355 F. App’x 533, 535 (2d Cir. 2009).  A claim for intentional infliction of emotional distress is subject to New York’s one-year statute of limitations.  See Cipolla v. County of Rensselaer, 129 F. Supp. 2d 436, 459 (N.D.N.Y. 2001); Niles v. Nelson, 72 F. Supp. 2d 13, 20 (N.D.N.Y.  1999).   New York courts have declined to apply a theory of a “continuing wrong” to resurrect an otherwise stale claim for intentional infliction of emotional distress, unless the acts alleged within the statutory period are sufficient by themselves to make out a separate claim.  See Cipolla, 129 F. Supp. 2d at 459.

Plaintiff commenced this action on October 19, 2015. (Dkt. No.  1).   Thus, any timely cause of action for intentional infliction of emotional distress must have accrued on or after October 19, 2014.  See Douglas v. New York State Adirondack Park Agency, 895 F. Supp. 2d 321, 354 (N.D.N.Y. 2012); Cipolla, 129 F. Supp. 2d at 459.    No timely intentional tort was plead by Plaintiff.

In his Complaint, Plaintiff alleges he has suffered severe emotional distress due to the Defendants’ actions when he was a patient at St. Joseph’s from April 5, 2013 to April 17, 2013. (Dkt.  No.  21, ¶¶329-333).    Plaintiff claims he suffered “severe  emotional  stress in that Defendants wrote “incorrect medical diagnosis regarding [Plaintiff’s] mental illness” which, in turn, “permanently neutralize[d] [Plaintiff’s] firearm rights”.  (Dkt. No. 2 1 , ¶¶85, 330).  Plaintiff only claims that Defendant Rybak and  Defendant  Spinella falsely  or negligently wrote  in hospital records.  (Dkt. No.  21, ¶117, ¶119, ¶169).   This claim for intentional infliction of emotional distress is time-barred as against the Defendants as the cause of action accrued at the latest on April 17, 2013, which was more than 2 1/2 before Plaintiff’s Complaint was filed.  See Douglas, 895 F. Supp. 2d at 354; Cuillo, 815 F. Supp. at 136 (Dkt. No. 1).

Moreover, for the reasons detailed below in Point VI, Plaintiff failed to state a cause of action for intentional infliction of emotional distress.  Therefore, the claim should be dismissed on this basis as well.

Plaintiff’s medical malpractice claims should be dismissed as time-barred as the claim accrued, at the latest, on April 17, 2016, which was more than 2 1/2 years before he filed his Complaint.

It is well-settled law that “ [a]n  action sounding  in  medical malpractice  must  be commenced within two years and six months of the act, omission, or failure complained of.” Magalios v. Nyhlen, 18 A.D.3d 719, 719 (2d Dep’t 2005); Staveley v. St. Charles Hosp., 173 F.R.D. 49, 50-51 (E.D.N.Y.  1997) (statute of limitations for a medical malpractice cause of action is 2 1/2 years); CPLR 214-a.

Here, the Plaintiff alleges that he received medical treatment at St. Joseph’s Hospital Health Center from April 5, 2013 to April 17, 2013. (Dkt. No. 21, ¶85, ¶253, ¶314, ¶317, ¶319, ¶320, ¶321). During that time period is when it is alleged the Defendants, among others, failed to accurately diagnose Plaintiffs psychiatric illness.  (Dkt. No. 21, ¶¶ 3 14-327).   There is no allegation in the Amended Complaint that there was continuous care of the Plaintiff by the Defendants at any time after April 17, 2013. (See generally Dkt. No. 21).  Plaintiff never filed this Complaint until October 19, 2015. (Dkt. No. 1).   As such, Plaintiff brought this action more than 2 1/2 years after the medical malpractice claim accrued.  Therefore, this claim must be dismissed as against all the Defendants. See Ryan v. Korn, 57 A.D.3d 507, 508 (2d Dep’t 2008); Magalios, supra; Straveley, supra.

POINT VII

PLAINTIFF HAS NOT SUFFICIENTLY PLEAD ALLEGATIONS
TO SUPPORT CERTAIN CAUSES OF ACTION

Plaintiff has not sufficiently plead a cause of action for negligent infliction of emotional distress or intentional infliction of emotional distress. Therefore, Plaintiff’s causes of action must be dismissed

“Under New York law, the torts of intentional and negligent infliction of emotional distress share three common elements: (1) extreme and outrageous conduct, (2) a causal connection between the conduct and the injury, and (3) severe emotional distress. A claim based on intentional infliction of emotional distress also requires that the defendant intend to cause severe emotional distress.” Simpson ex rel. Simpson v. Uniondale Union Free School Dist., 702 F.Supp.2d 122,134-35 (E.D.N.Y. 2010), citing Bender v. City of New York, 78 F.3d 787,789 (2d Cir.1996); see also Howell v. New York Post Co., 58 N.Y.2d 293 (1983) Kamanou v. Executive Secretary of  Com'n of the Economic Community of West African States, 2012 WL 162708, at *11 (S.D.N.Y. 2012); McRedmond v. Sutton Place Restaurant and Bar, Inc., 48 A.D.3d 258, 259 (1st Dep’t 2008); Suarez v. Bakalchuk, 66 A.D.3d 419, 419 (1st Dep’t 2009).   “Additionally, it is well settled that the circumstances under which recovery may be had for purely emotional harm are extremely limited.” Simpson, supra.

In this case, Plaintiff has not plead the requisite elements of either a negligent or intentional infliction of emotional distress claim.  The only allegations under these claims is that the Defendants, and more specifically Defendant Rybak and Defendant Spinella, provided an incorrect medical diagnosis on certain forms in order to involuntarily admit Plaintiff and to “neutralize [Plaintiff’s] firearm rights.” (Dkt. No. 21, ¶329-333; ¶335-340).   The claimed allegations do not contain any “extreme and outrageous conduct” by the Defendants, which is required to withstand the pleading stages.  Thus, beyond the fact that the intentional infliction of emotional distress claim is time-barred (see Point VI(A), supra), the claim should also be dismissed as the allegations do not rise to a sufficiently plead claim.  Additionally, the negligent infliction of emotional distress claim should also be dismissed as the allegations do not provide a basis for this claim.

POINT VIII

THERE IS NO CIVIL CAUSE OF ACTION FOR PERJURY, AND,
AS SUCH. THIS CLAIM MUST BE DISMISSED

POINT IX

ALTERNATIVELY. IF THIS COURT FINDS THAT ONLY STATE LAW
CLAIMS SURVIVE DEFENDANTS’ MOTION TO DISMISS. THIS COURT
SHOULD NOT EXERCISE SUPPLEMENTAL JURISDICTION
OVER THOSE CLAIMS

For the foregoing reasons, it is respectfully submitted that this Court grant Defendants’ motion to dismiss in its entirety and for such other and further relief as this Court deems just and proper.

Dated: June 23, 2016.

COSTELLO, COONEY & FEARON, PLLC
/s/ Robert J. Smith
Federal Bar No. 102628
Jennifer L. Wang, Of Counsel.
Bridgewater Place
500 Plum Street, Suite 300
Syracuse, New York 13204
Telephone: (315)-422-1152.

UMESH HEENDENIYA,
Plaintiff,                           Civil Action No. 5:15-cv-01238 [GTS-TWD]
                                         Chief U.S. District Judge Glenn T. Suddaby
-vs-                                   ATTORNEY AFFIDAVIT

ST. JOSEPH'S HOSPITAL HEALTH CENTER; ROGER GARY LEVINE, MD; LISA MARIE O'CONNOR, MD; GEORGE O. TREMITI, MD; HORATIUS ROMAN, MD; JOANNE MARY FRENCH, RN; WENDY BRISCOE, RN; SUSAN LYNN CATE, LMFT; ROSALINE SPINELLA, RN; ROBERT MICHAEL CONSTANTINE, MD; MITCHELL BRUCE FELDMAN, MD; CYNTHIA A. RYBAK, NP; KATHRYN HOWE RUSCITTO, PRESIDENT and CEO; LOWELL A. SEIFTER, JD, SENIOR VP and GENERAL COUNSEL; MEREDITH PRICE, VP of FINANCIAL SERVICES and CFO; DEBORAH WELCH, VP; GAEL GILBERT, RN, MBA, DIRECTOR; SJHHC DOES 1-5 INCLUSIVE,
Defendants.
------------------------------------------------------------------------------------------

STATE OF NEW YORK          )
COUNTY OF ONONDAGA    )  ss.:

ROBERT J . SMITH, being duly sworn, deposes and says:

I am an attorney duly licensed and admitted to practice law in the State of New York and am a member of the law firm of Costello, Cooney & Fearon, PLLC, attorneys for the defendants, St. Joseph’s Hospital Health Center, Susan Lynn Cate; Wendy Briscoe, RN; Joanne French, RN; Cynthia Rybak, NP; Kathryn Howe Ruscitto; Lowell Seifter; Meredith Price; Deborah Welch and Gael Gilbert, (hereinafter collectively “Defendants”).   As such, I am fully familiar with the facts and proceedings heretofore had in this action.

1. I submit this affidavit in support of Defendants’ application for an Order pursuant to Rule12(b)(6) of the Federal Rules of Civil Procedure dismissing the additional causes of action asserted in Plaintiffs  Second Amended Complaint.   Specifically, for a dismissal of Plaintiffs New York Civil Rights Law §79-n cause of action, New York Mental Hygiene Law §33.01 cause of action, and New York State Civil Conspiracy cause of action.

2. Prior to addressing the issues raised in the preceding paragraph, it is necessary to discuss the facts and circumstances surrounding this motion.
   
   

3. 
   On or about October 19, 2015, Plaintiff, Umesh Heendeniya, filed an action in the Northern District of New York. (Dk No. 1).  Plaintiff appears pro se in this action.  The complaint named thirty-three defendants and ten John Does. (Dkt. No. 1).  The Complaint named, inter alia, the above-listed Defendants as parties to the action.  The Complaint also named physicians, New York State defendants, as well as Federal defendants. (Dkt. No. 1).

      4. The Defendants were never personally served with the Complaint. (Dkt. No. 1).

5. The Complaint appeared to arise out of the alleged prohibition under 18 U.S.C. 922(g)(4) on Plaintiffs ability to receive a firearm shipped in interstate or foreign commerce as a result of his claimed April 2013 involuntary commitment to the Psychiatric Ward at St. Joseph’s Hospital Health Center. (Dkt. No. 1; Dkt. No. 6 [Order and Report - Recommendation of United States Magistrate Wiley Dancks], pp. 1-2).

6. As against St. Joseph’s, St. Joseph’s administrators, St. Joseph’s general counsel, St. Joseph’s nurses, and the physicians, Plaintiff alleged a 1983 cause of action, as well as several state law claims, including “medical negligence” and various others. (Dkt. No. 1 ¶¶ 117-164).

      7. On or about October 26, 2015, Plaintiff made an application to proceed in forma pauperis. (Dkt. No. 2; Dkt. No. 4).

8. By Order of United States Magistrate Wiley Dancks, filed November 30, 2015, Plaintiffs application to proceed in forma  pauperis was granted “solely for purposes of this initial review”. (Dkt. No. 6 [Order and Report - Recommendation of United States Magistrate Wiley Dancks], pp. 30-31).

9. The Order also, sua sponte:

a. Recommended that Plaintiffs Complaint (Dkt. N 1) be dismissed in its entirety on initial review under 28 U.S.C. §1951(e)(2)(B)(i)-(iii); and further

b. Recommended that the following relevant claims be dismissed with prejudice: Plaintiffs 1983 claim against St. Joseph’s Defendants, St. Joseph’s Hospital Health Center, Defendant Briscoe, Defendant O’Connor, Defendant French, Defendant Levine, Defendant Tremiti, Defendant Roman, Defendant Spinella, Defendant Constantine, Defendant Feldman, Defendant Rybak, Defendant Cate, Defendant Ruscitto, Defendant Seifter, Defendant Price, Defendant Welch, Defendant Gilbert, and John Does 1-5; and further

c. Recommended that the following relevant claims be dismissed without prejudice as there was not complete diversity jurisdiction and Plaintiff did not allege that the amount in controversy exceeded $75,000.00: Plaintiffs state law claims against St. Joseph’s Defendants, St. Joseph’s Hospital Health Center, Defendant Briscoe, Defendant O’Connor, Defendant French, Defendant Levine, Defendant Tremiti, Defendant Roman, Defendant Spinella, Defendant Constantine, Defendant Feldman, Defendant Rybak, Defendant Cate, Defendant Ruscitto, Defendant Seifter, Defendant Price, Defendant Welch, Defendant Gilbert, and John Does 1-5. (Dkt. No. 6 [Order and Report - Recommendation of United States Magistrate Wiley Dancks], p. 31).

10. By Order of Chief United States District Judge Glenn T. Suddaby, filed February 25, 2016, this Court accepted and adopted in its entirety Magistrate Judge Danck’s Report-Recommendation. (Dkt. No. 20, p. 12).

11. This Court further Ordered that all of the claims asserted in Plaintiffs Complaint (Dkt. 1) are dismissed with prejudice except for the following four claims, which shall be dismissed with prejudice unless, within 30 days of the date of the Decision and Order, Plaintiff files an Amended Complaint that corrects the pleading defects identified by Magistrate Judge Danck’s Report-Recommendation, including, as relevant herein:  Plaintiffs state law claims against St. Joseph’s Defendants, St. Joseph’s Hospital Health Center, Defendant Briscoe, Defendant O’Connor, Defendant French, Defendant Levine, Defendant Tremiti, Defendant Roman, Defendant Spinella, Defendant Constantine, Defendant Feldman, Defendant Rybak, Defendant Cate, Defendant Ruscitto, Defendant Seifter, Defendant Price, Defendant Welch, Defendant Gilbert, and John Does 1-5. (Dkt. No. 20, p. 12).
    
    12. Finally, this Court ordered that Plaintiffs Amended Complaint shall be a complete pleading that supersedes his original Complaint in all respects and shall not attempt to reassert any claims that have been dismissed with prejudice in this Decision and Order. (Dkt. No. 20, p. 12).

      13. On March 25, 2016, Plaintiff filed a First Amended Complaint against the St. Joseph defendants, and the physicians.   No claims appear to be asserted against the New York Defendants, or the Federal Defendants in the Amended Complaint. (Dkt. No. 21).

      14. By Order, filed April 19, 2016, Magistrate Judge Danck’s issued an Order that the Amended Complaint states a claim sufficient to survive initial review.  Magistrate Judge Danck’s explicitly held that the “Court takes no position on whether the claims asserted by Plaintiff in his Amended Complaint might survive a properly filed motion to dismiss” (Dkt. No. 24, p. 2).   In this finding, Magistrate Judge Dancks addressed the state law claims and found that there was now complete diversity of jurisdiction and that the amount in controversy had been plead. (Dkt. No. 24, p. 2).   Magistrate Judge Dancks also held that Plaintiff may continue to proceed with this matter In forma pauperis. (Dkt. No. 24).

      15. A liberal reading of the  First Amended  Complaint asserts claims against the Defendants as follows:   (a) medical malpractice/medical negligence, (b) intentional infliction of emotional distress, (c) negligent infliction of emotional distress, (d) Violation of Title III of the Americans with Disabilities Act (“ADA”), (e) Violation of Section 540 of the Rehabilitation Act, (f) Violation of Title IV of the ADA, (g) 42 U.S.C. 1983; (h) 42 U.S.C. §1985 and §1986; and (i) perjury. (See generally Dkt. No. 21).

      16. On or about June 7, 2016, Defendants were served with the First Amended Complaint.

      17. On June  24,  2016, Defendants moved to dismiss Plaintiffs First Amended Complaint in its entirety. (See Dkt. No. 46).

      18. On July 17, 2016, plaintiff filed a Second Amended Complaint wherein he essentially alleges the same causes of action as against the Defendants.  A liberal reading of the Second Amended Complaint asserts new causes of action as against the Defendants, namely (1) a New York Civil Rights Law 79-n cause of action; (2) a New York Mental Hygiene Law §33.01, cause of action, and (3) a New York State Conspiracy. (See Dkt. No. 55, ¶¶ 435-441; 477-481).

      19. With the permission of the this Court, Defendants rely upon the original motion to dismiss for a dismissal of all claims asserted against them in this action. (See Dkt. No. 56, Dkt. No. 57).

20. This current motion addresses any newly asserted causes of action contained in the Second Amended Complaint. (See Dkt. No. 55, ¶¶ 477-481). For the reasons detailed below, this claim should also be dismissed.
    
    

22. 
    As fully detailed in the accompanying Memorandum of Law, it is respectfully submitted that Plaintiffs claim under New York Civil Rights Law 79-n should be dismissed. (See Defendants’ Memorandum of Law, Point I).
    

      23. In his Second Amended Complaint, Plaintiff alleges a violation of New York Civil Rights Law §79-n. (See Dkt. 55, ¶¶ 477-48l).   Plaintiff has alleged no basis for recovery under this theory.   As such, it should be dismissed. (See Defendants’ Memorandum of Law, Point I).

      24. Section 79-n provides that “[a]ny person who intentionally selects a person or property for ha r m. . . in whole or in substantial part because of . . . disability. . . shall be liable, in a civil action   . . . for injunctive relief, damages, or any other appropriate relief in law or equity.” The legislative history of § 79-n clearly states that this remedy applies only to bias-related violence or intimidation. (See Defendants’ Memorandum of Law, Point I).

25. In his Second Amended Complaint, Plaintiff makes no allegation of violence or intimidation, but rather conclusorily alleges violations of a laundry list of legal provisions that the Plaintiff already claimed in other count (See Dkt. 55, ¶¶477-481).  In turn, Plaintiff has not provided a basis for 79-n liability. (See Defendants’ Memorandum of Law, Point I).

26. Therefore, Plaintiffs §79-n claim against the defendants should be dismissed.
    
    

27. 
    As detailed in the accompanying Memorandum of Law, it is respectfully submitted that Plaintiffs claim under New York Mental Hygiene Law §33.01 should be dismissed. (See Defendants’ Memorandum of Law, Point II).
    

      28. In his Second Amended Complaint, Plaintiff alleges a violation of New York Mental Hygiene Law 33.01. (See Dkt. 55, §§ 477-481). As support for the alleged deprivation of a civil right under MHL §33.01, Plaintiff again asserts, without any factual basis, violations of §1983 and Americans with Disability Act (“ADA”)/Section 504 of the Rehabilitation Act. (See Dkt. 55, §§477-481). None of these causes of action are properly plead against the individually named defendants or St. Joseph’s. (See Defendants’ Memorandum of Law, Point II).

      29. Respectfully, Plaintiff once again attempts to assert causes of action under different titles, when the claims are in actuality only ones under 1983.  This is prohibitive under this Court’s prior Order. (Dkt. No. 20, p. 12). (See Defendants’ Memorandum of Law, Point II).

      30. Moreover, as detailed in the accompanying Memorandum of Law, none of these allegations plead a cause of action as against the Defendant  (See Defendants’ Memorandum of Law, Point II).

      31. As such, Plaintiff’s New York MHL §33.01 claim should be dismissed.

32. 
    As more fully set forth in the attached Memorandum of Law, it is respectfully submitted that Plaintiffs New York State Civil Conspiracy cause of action should be dismissed as there is no viable tort cause of action which will survive defendants’ motion to dismiss. (See Defendants’ Memorandum of Law, Point III).

33. Under New York law, a claim for civil conspiracy may stand only if it is connected to a separate underlying tort. (See Defendants’ Memorandum of Law, Point III).
    

      34. Since there is no viable tort claim alleged against defendants in Plaintiff Second Amended Complaint, it is respectfully submitted that Plaintiff’s New York State conspiracy claim must also be dismissed. (See Defendants’ Memorandum of Law, Point III).

35. 
    In the alternative, if this Court finds that only state law claims survive Defendants’ motion to dismiss, it is respectfully requested that this Court decline to exercise supplemental jurisdiction over Plaintiffs state law claims.

WHEREFORE, for the foregoing reasons and those set forth in the accompanying Memorandum of Law, it is respectfully submitted that this Court grant Defendants’ motion to dismiss in its entirety and for such other and further relief as this Court deems just and proper.

/s/ Robert J. Smith
Federal Bar. No. 102628

Subscribed and sworn to before me this 8th day of August, 2016.
/s/ Carol A. Hayes

UMESH HEENDENIYA,
Plaintiff,                            Civil Action No. 5:15-cv-01238 [GTS-TWD]
                                          Chief U.S. District Judge Glenn T. Suddaby
-vs-                                    Memorandum of Law in Support of Motion
                                          to Dismiss Second Amended Complaint

ST. JOSEPH'S HOSPITAL HEALTH CENTER; ROGER GARY LEVINE, MD; LISA MARIE O'CONNOR, MD; GEORGE O. TREMITI, MD; HORATIUS ROMAN, MD; JOANNE MARY FRENCH, RN; WENDY BRISCOE, RN; SUSAN LYNN CATE, LMFT; ROSALINE SPINELLA, RN; ROBERT MICHAEL CONSTANTINE, MD; MITCHELL BRUCE FELDMAN, MD; CYNTHIA A. RYBAK, NP; KATHRYN HOWE RUSCITTO, PRESIDENT and CEO; LOWELL A. SEIFTER, JD, SENIOR VP and GENERAL COUNSEL; MEREDITH PRICE, VP of FINANCIAL SERVICES and CFO; DEBORAH WELCH, VP; GAEL GILBERT, RN, MBA, DIRECTOR; SJHHC DOES 1-5 INCLUSIVE,
Defendants.
------------------------------------------------------------------------------------------

Defendants, St. Joseph’s Hospital Health Center, Susan Lynn Cate; Wendy Briscoe, RN; Joanne French, RN; Cynthia Rybak, NP; Kathryn Howe Ruscitto; Lowell Seifter; Meredith Price; Deborah Welch and Gael Gilbert, (hereinafter collectively “Defendants”) move this Court for an Order dismissing the Second Amended Complaint.

On June 24, 2016, Defendants moved to dismiss Plaintiff’s Amended Complaint in its entirety. (See Dkt. No. 46).  On July 17, 2016, plaintiff filed a Second Amended Complaint wherein he essentially alleges the same causes of action as against the Defendants. (See Dkt. No. 55).   In a liberal reading of the Second Amended Complaint, Plaintiffs asserts new causes of action as against the Defendants, namely (1) a New York Civil Rights Law §79-n cause of action; (2) a New York Mental Hygiene Law §33.01 cause of action; and (3) a New York State Conspiracy cause of action. (See Dkt. No. 55, ¶¶ 435-441; 477-481).  With the permission of the this Court, Defendants rely upon their original motion to dismiss for a dismissal of all claims asserted against them in this action.  (See Dkt. No. 56, Dkt. No. 57). This current motion addresses any newly asserted causes of action in the Plaintiffs Second Amended Complaint. (See Dkt. No. 56, Dkt. No. 57).  For the reasons detailed below, the newly asserted claims should also be dismissed.

ARGUMENT

POINT I

PLAINTIFF’S CLAIM. ALLEGING A VIOLATION OF NEW YORK CIVIL RIGHTS
LAW §79-n, SHOULD BE DISMSSED BECAUSE IT DOES NOT STATE A CAUSE OF
ACTION AGAINST DEFENDANTS

It is respectfully submitted that Plaintiffs claim under New York Civil Rights Law §79-n should be dismissed.  In his Second Amended Complaint, Plaintiff alleges a violation of New York Civil Rights Law §79-n.  (See Dkt.  55, ¶¶477-481).  Plaintiff has alleged no basis for recovery under this theory.  As such, it should be dismissed.

Section 79-n provides that “ [a]ny person who intentionally selects a person or property for harm . . . in whole or in substantial part because of . . . disability . . . shall be liable, in a civil action  . . . for injunctive relief, damages, or any other appropriate relief in law or equity.”   “The legislative history of §79-n clearly states that ‘this new remedy applies only to bias-related violence or intimidation.” Karam v.  County of Rensselaer, 2016 WL 51252, *18 (N.D.N.Y. 2016).   In his Second Amended Complaint, Plaintiff makes no allegation of violence or intimidation, but rather conclusorily alleges violations of a laundry list of legal provisions that the Plaintiff already claimed in other counts. (See Dkt. 55, ¶¶ 477-481).  In turn, Plaintiff has not provided a basis for §79-n liability.  Therefore, Plaintiffs §79-n claim against the defendants should be dismissed.

POINT II

PLAINTIFF’S CLAIM, ALLEGING A VIOLATION OF NEW YORK MENTAL
HYGIENE LAW § 33.01. SHOULD BE DISMSSED BECAUSE IT DOES NOT STATE A
CAUSE OF ACTION AGAINST DEFENDANTS

It is respectfully submitted that Plaintiffs claim under New York Mental Hygiene Law § 33.01 should be dismissed. In his Second Amended Complaint, Plaintiff alleges a violation of New York Mental Hygiene Law §33.01. (See Dkt. 55, ¶¶ 477-481). Plaintiff has alleged no basis for recovery under this theory as against the defendants. As such, it should be dismissed.

New York Mental Hygiene Law §33.01 provides:  Notwithstanding any other provision of law, no person shall be deprived of any civil right, if in all other respects qualified and eligible, solely by reason of receipt of services for a mental disability nor shall the receipt of such services modify or vary any civil right of any such person, including but not limited to civil service ranking and appointment, the right to register for and to vote at elections, or rights relating to the granting, forfeiture, or denial of a license, permit, privilege, or benefit pursuant to any law.”  As support for the alleged deprivation of a civil right, Plaintiff again asserts, without any factual basis, violations of §1983 and Americans with Disability Act (“ADA”)/Section 504 of the Rehabilitation Act. (See Dkt. 55, ¶¶477-481). None of these causes of action are plead against the individually named defendants and St. Joseph’s.

Respectfully, Plaintiff once again attempts to assert causes of action under different titles, when the claims are in actuality only ones under §1983. See e.g. Lines v. Cablevision Systems Corp., 2005 WL 2305010, *5 (E.D.N.Y. 2005) (despite the name given by plaintiff to a cause of action, the allegations asserted in relation to the cause of action deemed it to be considered another cause of action by the Court).  This is prohibitive under this Court’s prior Order. (Dkt. No. 20, p. 12).

Moreover, none of these allegations plead a cause of action as against the Defendants. This Court has already dismissed any Section 1983 claim against defendants with prejudice. (Dkt. No. 6, p. 31; Dkt. No. 20, p. 12).  Additionally, the ADA/Rehabilitation Act claims are not viable claims.  In addition to being duplicative of the §1983 claims, the ADA/Rehabilitation Act claims should be dismissed because (a) there is no cause of action for the individually named defendants ( Warren v. Goord, 2006 WL 1582385, *20 (W.D.N.Y.,2006)), (b) Plaintiff’s claim under Title II or Title III wholly fails to assert how St. Joseph’s is a public accommodation in the context of the allegations contained in the Amended Complaint.  Additionally, Plaintiff does not claim that St. Joseph’s denied him access to its facility or services provided therein, which is an allegation which needs to be asserted in these claims. (See e.g. Pappas v. Bethesda Hosp. Ass'n, 861 F.Supp. 616, 620 (S.D.Ohio 1994)); and (c) Plaintiff’s claim under Title V fails to plead a cause of action against St. Joseph’s where on the face of his Complaint, Plaintiff has failed to even allege that he was engaged in protected activity under the ADA, and that the Defendants were aware of this activity.  Moreover, the allegation of retaliatory amicus, or a causal connection between the protected activity under the ADA and the retaliatory action, has not been plead. (See Dkt. 55, ¶¶ 420-434).

As such, Plaintiff’s New York Mental Hygiene Law §33.01 claim should be dismissed.

POINT III

PLAINTIFF’S CLAIM, ALLEGING A NEW YORK
CIVIL CONSPIRACY TORT, SHOULD BE DISMSSED

It is respectfully submitted that Plaintiffs New York State Civil Conspiracy cause of action should be dismissed as there is no viable tort cause of action which will survive defendants’ motion to dismiss.

“It is well-established that, under New York law, a claim for civil conspiracy may stand only if it is connected to a separate underlying tort.” Ranieri v. Adirondack Dev. Group, 2016 WL 796061 (N.D.N.Y. 2016).   There is no viable tort claim alleged against defendants by Plaintiff in his First Amended or Second Amended Complaint.  Plaintiffs claim for intentional infliction of emotional distress is time-barred by the 1 year statute of limitations; Plaintiffs medical malpractice claims are time-barred by the 2 ½ year statute of limitations; and Plaintiff has not sufficiently plead a cause of action for negligent infliction of emotional distress or intentional infliction of emotional distress. (See Dkt. No. 55, ¶¶ 392-419); Douglas v. New York State Adirondack Park Agency, 895 F. Supp. 2d .321, 354 (N.D.N.Y. 2012); Ryan v. Korn, 57 A.D.3d 507, 508 (2d Dep’t 2008); Simpson ex rel  Simpson v.  Uniondale Union Free School Dist., 702 F.Supp.2d 122, 134-35 (E.D.N.Y. 2010), citing Bender v. City of  New York, 78 F.3d 787, 789 (2d Cir.1996); see also Howell v. New York Post Co., 58 N.Y.2d 293 (1983) Kamanou v. Executive Secretary of Com'n of the Economic Community of West African States, 2012 WL 162708, at *11 (S.D.N.Y. 2012); McRedmond v. Sutton Place Restaurant and Bar, Inc., 48 A.D.3d 258, 259 (1st Dep’t 2008); Suarez v. Bakalchuk, 66 A.D.3d 419, 419 (1st Dep’t 2009). Therefore, it is respectfully submitted that Plaintiffs New York State conspiracy claim must also be dismissed. See Ranieri, supra.

POINT IV

ALTERNATIVELY, IF THIS COURT FINDS THAT ONLY STATE LAW
CLAIMS SURVIVE DEFENDANTS’ MOTION TO DISMISS, THIS COURT SHOULD
NOT EXERCISE SUPPLEMENTAL JURISDICTION OVER THOSE CLAIMS

For the foregoing reasons, it is respectfully submitted that this Court grant Defendants’ motion to dismiss in its entirety and for such other and further relief as this Court deems just and proper.

Dated: August 8, 2016.

COSTELLO, COONEY & FEARON, PLLC
/s/ Robert J. Smith
Federal Bar No. 102628
Jennifer L. Wang, Of Counsel.
Bridgewater Place
500 Plum Street, Suite 300
Syracuse, New York 13204
Telephone: (315)-422-1152.