Wang v. Delphin-Rittmon

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

LISHAN WANG,

Plaintiff,

v. No. 3:17-cv-586 (JAM)

MIRIAM DELPHIN-RITTMON et al.,

Defendants.

ORDER DENYING DEFENDANTS’ MOTION TO DISMISS

Plaintiff Lishan Wang alleges that while he was a pretrial detainee at Whiting Forensic

Hospital he was forcibly injected with Benadryl and put into four-point restraints for upwards of

ten hours in violation of his constitutional rights. The Court has previously issued an initial

review order allowing his claims to proceed against two doctor defendants (Dr. Diana

Kurlyandchik, and Dr. Victoria Dreisbach) as well as four nurse defendants (Clara Mejias, Judy

Hall, Heather Madison, Misty Delciampo).

The defendants have now moved to dismiss, arguing that the suit is barred by the Rooker-

Feldman doctrine, that they are entitled to quasi-judicial immunity, and that they are entitled to

qualified immunity. I will deny their motion.

BACKGROUND

As an initial matter, I take judicial notice of state court rulings and orders that set forth

the background facts leading up to the events at issue on February 22, 2017 that are the focus of

Wang’s complaint against the defendants.1 Wang was charged with murder and other crimes in

Connecticut state court in 2010. Following protracted pre-trial proceedings, a state court found

1 These sources include the state trial court order allowing for the forcible medication of Wang to stand trial and the

ruling of the Connecticut Supreme Court affirming the state court order. See Doc. #168-3; State v. Wang, 323 Conn.

115 (2016). Wang’s complaint likewise refers to some of the events and proceedings leading up to the incident of

February 22, 2017. Doc. #139 at 5-6 (¶¶ 13-14).

Wang not competent to stand trial. The state court then conducted several hearings from

September to November 2015 for the purpose of determining whether Wang should be subject to

involuntary medical treatment to restore his competency.

Connecticut law allows a state court to enter an order for the involuntary administration

of antipsychotic drugs that may restore a criminal defendant to competency for trial. See Conn.

Gen. Stat. § 54-56d. In particular, the law provides that “the court may order the involuntary

medication of the defendant if the court finds by clear and convincing evidence that: (A) To a

reasonable degree of medical certainty, involuntary medication of the defendant will render the

defendant competent to stand trial, (B) an adjudication of guilt or innocence cannot be had using

less intrusive means, (C) the proposed treatment plan is narrowly tailored to minimize intrusion

on the defendant’s liberty and privacy interests, (D) the proposed drug regimen will not cause an

unnecessary risk to the defendant’s health, and (E) the seriousness of the alleged crime is such

that the criminal law enforcement interest of the state in fairly and accurately determining the

defendant’s guilt or innocence overrides the defendant's interest in self-determination.” § 54-

56d(k)(2).

On January 21, 2016, the state trial court ruled that the State’s proposed treatment plan

met all these statutory requirements and also satisfied the similar constitutional due process

requirements as set forth in Sell v. United States, 539 U.S. 166 (2003).2 Wang appealed this

ruling, and the Connecticut Supreme Court affirmed the state court order on September 13, 2016.

See State v. Wang, 323 Conn. 115 (2016).3

2 Doc. #168-3 at 4-7.

3 Unless otherwise indicated, this ruling omits internal quotation marks, alterations, citations, and footnotes in text

quoted from court decisions.

The state court order refers to “the two specific medications recommended for the

treatment of the defendant,” and the Connecticut Supreme Court’s ruling makes clear that these

two medications were Olanzapine and Ziprasidone as testified to and recommended by the

State’s psychiatrist—Dr. Mark Cotterell—and with the unanimous support of Wang’s treatment

team.4 There is nothing in the state court order or the Connecticut Supreme Court’s ruling that

purports to authorize the involuntary administration of any medication other than Olanzapine and

Ziprasidone or that describes the manner in which the State could effectuate its authority to

involuntarily administer Olanzapine and Ziprasidone.

That brings us to the events of February 22, 2017. According to the complaint, Wang was

called on that day around 2:30pm to Building Unit 2 at the Whiting Forensic Institute to receive

his court-ordered medication.5 When Wang emerged from his dorm, he told the male employees

assembled in the hallway that “You all know I do not need medication.”6 When he was asked to

go to the treatment room, Wang refused, telling the officers “You need to carry me over there.”7

At that point, some of the assembled employees grabbed Wang’s “arms, legs, and other parts of

his body.”8 In response Wang “stiffed his body” but at no point “pushed, kicked, grabbed,

scratched, or hit anyone.”9

The employees carried Wang into the restraint room and strapped him to a bed in a four-

point restraint.10 At around 2:45pm, one of the defendant nurses—Heather Madison—injected

Wang with his first dose of what Wang refers to as Zyprexa (the brand name for Olanzapine).11

4 Doc. #168-3 at 5, 6; Wang, 323 Conn. at 122.

5 Doc. #139 at 6 (¶ 16).

6 Ibid.

7 Ibid.

8 Ibid.

9 Id. at 7 (¶ 16).

10 Ibid.

11 Ibid.

During the injection, Wang twisted his hips to try and avoid the needle, and male employees

grabbed his legs, thighs, and hips to stabilize him for injection.12

At 4:00pm one of the defendant doctors—Dr. Diana Kurlyandchik—appeared.13 He told

her: “‘I don’t need med.’ ‘You need medication.’ ‘I’m going to sue you.’ ‘I’ve Chinese

government behind me.’ ‘You crazy.’ etc.’”14 Dr. Kurlyandchik returned at 4:30pm and spoke

with Wang again. During one of her conversations with him, she told him that, if he said “I will

not harm anyone,” then she would terminate his four-point restraint.15 Wang was silent because

he had “never wanted to harm anyone physically” and he felt that the request “was a trap because

it would indicate that he had wanted to harm others.”16

Dr. Kurlyandchik ordered continuous four-point restraint for Wang after 4:30pm.17 One

of the nurse defendants—Misty Delciampo—falsely accused Wang of being “violent and

threatening,” and she recommended continued use of four-point restraints.18

The second-shift psychiatrist was another doctor defendant—Dr. Victoria Dreisbach.19

She prescribed for Wang two doses of Benadryl—a medication that was not the subject of the

state court’s order of involuntary medication.20 The first dose of Benadryl was injected by

defendant nurse Clara Mejias, and the second dose by defendant nurse Judy Hall.21 Both doses

were administered to Wang against his will while he was in four-point restraints and despite the

12 Ibid.

13 Id. at 8 (¶ 17).

14 Ibid.

15 Ibid.

16 Ibid.

17 Id. at 12 (¶ 25).

18 Id. at 13 (¶ 27).

19 Id. at 8-9 (¶ 19).

20 Ibid.

21 Ibid.

fact that Dr. Dreisbach and nurses Mejias and Hall knew that there was no court order to allow

them to forcibly administer Benadryl.22

The complaint does not say when the first dose of Benadryl was administered but states

that the second dose was administered about eight hours after he had first been placed in four-

point restraints (somewhere between 2:30pm to 2:45pm) and within a short period of time from

the first Benadryl dose.23 At 9:10pm Wang was also injected with a second dose of Zyprexa

(Olanzapine) while still in four-point restraints.24

When Wang asked nurse Mejias why he was being given Benadryl for the first dose, she

told him that Dr. Dreisbach had ordered it. When Wang sought clarification from nurse Hall for

the second dose, she explained that Dr. Dreisbach had prescribed Benadryl “for the side

effects.”25 But, according to Wang, he did not have any side effects from the Zyprexa

(Olanzapine).26

Finally around midnight, after Wang had been in four-point restraints for about ten hours,

he was released to go to the bathroom.27 When Wang finished using the bathroom, he “passed

out, lost his consciousness, and . . . collapsed to the floor in the bathroom.”28 As he fell, Wang

hit his nose on the urinal, fracturing his nasal bone, and he was taken to an outside medical

hospital for treatment.29 According to Wang, he fell because of the dizzying side effects of the

Benadryl.30

22 Id. at 9 (¶ 20).

23 Id. at 9 (¶¶ 19, 20).

24 Id. at 7 (¶ 16).

25 Id. at 8-9 (¶ 19).

26 Ibid.

27 Id. at 9-10 (¶ 21).

28 Id. at 10 (¶ 22).

29 Id. at 10-11 (¶¶ 22-23).

30 Id. at 9-10 (¶ 21).

Wang’s complaint describes how being in four-point restraint was “extremely

uncomfortable, painful, agonizing, dreary, stressful, traumatic, [and] injurious both mentally and

physically.”31 “He twisted or bended his body because of the pain and distress, but being 4-point

restrained he could NOT change his body position.”32 “The pain and agony became more and

more intolerable as the hour[s] of 4-point restraint extended.”33

Wang alleges that he “had NEVER been violent physically or threatened to harm anyone

physically.”34 He further alleges that “[t]here was no sign or symptom which could raise a

concern about the risk of his posing harm to himself or others.”35

According to Wang, most of the defendants wrote lies in their medical reports claiming

that he had acted threateningly and violently. Dr. Kurlyandchik “fabricated that she had

attempted to talk to Mr. Wang (who refused) before the 4-point restraint, and had further

fabricated that Mr. Wang had threatened to do physical harms to others.”36 Similarly, Dr.

Dreisbach “lied against Mr. Wang by falsely alleg[ing] that Mr. Wang was violent on 2/22/2017

and he was trying to break out under 4-point restraint.”37 Three of the four nurse defendants—

Delciampo, Mejias, and Madison—lied in the medical records by claiming that he acted

violently.38 Wang does not claim that the fourth nurse defendant—Hall—made false entries in

her records or falsely accused him of being threatening or violent.39

31 Id. at 15 (¶ 32).

32 Ibid.

33 Ibid.

34 Id. at 8 (¶ 16).

35 Ibid.

36 Id.at 11 (¶ 24); see also id. at 17-18 (¶ 35) (quoting alleged false statements by Dr. Kurlyandchik).

37 Id. at 12 (¶ 26); see also id. at 19 (¶ 36) (quoting alleged false statements by Dr. Dreisbach).

38 Id. at 12-14 (¶¶ 27-29).

39 Id. at 14, 16-17 (¶¶ 30, 33-34).

About two weeks later, Wang met with Dr. Cotterell and members of his treatment team

on March 8, 2017. At that meeting, Dr. Cotterell confirmed that without a court order no doctor

or nurse could administer any non-court-approved medicine to Wang.40

Wang filed this lawsuit in April 2017.41 After a series of amended complaints, he filed

the operative complaint on September 14, 2021.42 In its initial review order of the operative

complaint, the Court allowed two of Wang’s Fourteenth Amendment claims to proceed: (1) the

claim against Dr. Dreisbach and nurses Mejias and Hall in their individual capacities for

violating Wang’s right to substantive due process when they ordered and administered two

injections of Benadryl without authorization and without Wang’s informed consent; and 2) the

claim against Drs. Kurlyandchik and Dreisbach and nurses Mejias, Madison, and Delciampo in

their individual capacities for violating Wang’s due process rights when they continued by

means of excessive force to confine him in four-point restraints for upwards of ten hours even

though he was not engaging in violent or threatening conduct.43 The Court dismissed all other

claims and defendants.

The remaining defendants have filed a motion to dismiss on three grounds.44 First, they

move to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) on the ground that the Court lacks subject

matter jurisdiction because of the Rooker-Feldman doctrine. Second, they move to dismiss

pursuant to Fed. R. Civ. P. 12(b)(1) on the ground that the complaint fails to state a claim for

relief because the defendants are entitled to quasi-judicial immunity. Third, they move to dismiss

pursuant to Fed. R. Civ. P. 12(b)(6) on the ground of qualified immunity.45

40 Id. at 6 (¶ 15).

41 Doc. #1.

42 Doc. #139.

43 Doc. #140.

44 Doc. #168.

45 Doc. #168-1.

DISCUSSION

The standard that governs a motion to dismiss under Rules 12(b)(1) and 12(b)(6) is well

established. Under Rule 12(b)(1), a complaint may not survive unless it alleges facts that, taken

as true, give rise to plausible grounds to sustain federal subject matter jurisdiction. See Lapaglia

v. Transamerica Cas. Ins. Co., 155 F. Supp. 3d 153, 155–56 (D. Conn. 2016). Similarly, under

Rule 12(b)(6), a complaint may not survive unless it alleges facts that, taken as true, give rise to

plausible grounds for relief on the merits. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

The Court must read the allegations of a pro se complaint liberally to raise the strongest

arguments that they suggest. See Meadows v. United Servs., Inc., 963 F.3d 240, 243 (2d Cir.

2020) (per curiam). Still, notwithstanding the rule of liberal interpretation of a pro se complaint,

a complaint may not survive dismissal if its factual allegations do not meet the basic plausibility

standard. See ibid.

Rooker-Feldman doctrine

The defendants first argue that the complaint must be dismissed pursuant to Fed. R. Civ.

P. 12(b)(1) because there is no federal jurisdiction under the Rooker-Feldman doctrine. The

Rooker-Feldman doctrine jurisdictionally bars the federal courts from hearing “cases that

function as de facto appeals of state-court judgments.” Sung Cho v. City of New York, 910 F.3d

639, 644 (2d Cir. 2018). There are four requirements that must be met in order for the Rooker-

Feldman doctrine to bar a plaintiff's claim: “(1) the federal-court plaintiff must have lost in state

court; (2) the plaintiff must complain of injuries caused by a state-court judgment; (3) the

plaintiff must invite district court review and rejection of that judgment; and (4) the state-court

judgment must have been rendered before the district court proceedings commenced.” Id. at 645.

The problem for the defendants’ Rooker-Feldman argument is obvious. Wang’s amended

complaint does not seek to hold the defendants liable for taking measures that were authorized

by the state court order.46 To the contrary, he seeks to hold them liable for taking measures—

including the forcible injection of Benadryl and the prolonged use of four-point restraints—that

were not mentioned or expressly authorized by any terms of the state court order.

The defendants do not appear to dispute this. So there appears to be no basis for the

defendants to suggest that the state court authorized the defendants to forcibly administer

Benadryl to Wang or to subject him to ten hours of detention in four-point restraints. As Wang

rightly points out, “[t]he court order is a narrow and specific permission, NOT a blank check!”47

Therefore, as to the involuntary administration of Benadryl and prolonged use of four-

point restraints, the defendants cannot possibly satisfy the second or third prongs of Rooker-

Feldman—i.e., that Wang “complain[s] of injuries caused by a state-court judgment” or that

Wang “invite[s] district court review and rejection of that judgment.”

Just because the defendants’ actions are related to and occurred soon after issuance of the

state court order does not mean that they are within the scope of the Rooker-Feldman doctrine.

As the Second Circuit has made clear, the Rooker-Feldman doctrine does not apply to claims of

injury that have been caused “not by the judgment” of the state court but merely by a defendant’s

actions “following upon” a state court judgment. Dorce v. City of New York, 2 F.4th 82, 105 (2d

Cir. 2021). Accordingly, I will deny the defendants’ motion to dismiss to the extent that it seeks

dismissal for lack of jurisdiction under the Rooker-Feldman doctrine.

46 Doc. #139 at 21. The defendants are well aware of this because the Court has previously entered an order

restricting the scope of claims that Wang may plead in his amended complaint. Doc. #124 at 16-17.

47 Doc #179 at 3.

Quasi-judicial immunity

The defendants next move to dismiss on the grounds that they have quasi-judicial

immunity. They argue that quasi-judicial immunity is a derivative form of absolute judicial

immunity and that they “properly executed the Forcible Medication Order, a step integral to the

state court’s judicial process, entitling them to absolute, quasi-judicial immunity from suit for

those acts and depriving this Court of subject matter jurisdiction.”48

As an initial matter, the defendants claim—but without citing any authority—that a

defense of quasi-judicial immunity goes to the Court’s subject matter jurisdiction and may be

challenged under Rule 12(b)(1) rather than under Rule 12(b)(6).49 This distinction is an

important one because when a court evaluates a motion to dismiss under Rule 12(b)(6) it must

accept the non-conclusory fact allegations of the complaint as true and draw all reasonable

inferences in favor of the plaintiff. See Costabile v. New York City Health & Hosps. Corp., 951

F.3d 77, 80 (2d Cir. 2020) (per curiam). Where, as here, the plaintiff is a pro se party, a court

must also give a liberal construction to the plaintiff’s allegations. Ibid. And the court in the

context of a Rule 12(b)(6) motion may only consider documents that a plaintiff has chosen to

attach to the complaint, that are incorporated by reference in the complaint, or that are otherwise

integral to the allegations of the complaint if there is no dispute about the authenticity or

accuracy of the document. See United States ex rel. Foreman v. AECOM, 19 F.4th 85, 106 (2d

Cir. 2021).

By contrast, when a court evaluates a motion to dismiss under Rule 12(b)(1), it may—and

sometimes must—consider extrinsic evidence such as affidavits that contradict the allegations of

the complaint in order to determine whether there is federal subject matter jurisdiction. As the

48 Doc. #168-1 at 8.

49 Id. at 8, 12 n.7.

Second Circuit has recently ruled, “district courts have broad discretion when determining how

to consider challenges to subject matter jurisdiction” under Rule 12(b)(1) and that “[w]here a

party offers extrinsic evidence that contradicts the material allegations of the complaint, we have

suggested that it would be error for the district court to disregard that extrinsic evidence.” Harty

v. W. Point Realty, Inc., 28 F.4th 435, 442 (2d Cir. 2022). In sum, “under Rule 12(b)(1), we are

permitted to rely on non-conclusory, non-hearsay statements outside the pleadings, . . . which we

cannot consider under Rule 12(b)(6) unless they are incorporated within or integral to the

complaint.” M.E.S., Inc. v. Snell, 712 F.3d 666, 671 (2d Cir. 2013).

Moreover, if a defendant submits evidence to show a fact dispute about whether there is

federal jurisdiction pursuant to Rule 12(b)(1), then a plaintiff may not merely rest on the

allegations of the complaint as one may do to defend against a Rule 12(b)(6) motion. Instead,

“the plaintiffs will need to come forward with evidence of their own to controvert that presented

by the defendant if the affidavits submitted on a 12(b)(1) motion reveal the existence of factual

problems in the assertion of jurisdiction.” Carter v. HealthPort Techs., LLC, 822 F.3d 47, 57 (2d

Cir. 2016) (internal quotation marks and ellipses omitted).

So there is a world of difference between what a court may consider when addressing a

Rule 12(b)(1) motion versus a Rule 12(b)(6) motion. And the defendants hope to exploit this

difference by submitting and relying on a highly detailed affidavit of Dr. Dreisbach that

fundamentally contradicts Wang’s allegations and that justifies the use of Benadryl and four-

point restraints. The defendants say that “[b]ecause quasi-judicial immunity deprives the court of

subject matter jurisdiction, the motion to dismiss on this ground is brought pursuant to Fed. R.

Civ. P. 12(b)(1). As such, this court may consider evidence outside of the four corners of the

complaint, including the affidavit supplied by Defendant Dr. Dreisbach.”50

But the defendants are plainly wrong. A defense of absolute judicial immunity or quasi-

judicial immunity has nothing to do with a federal court’s jurisdiction. As Justice Scalia has put

it, “[t]here is no authority whatever for the proposition that absolute- and qualified-immunity

defenses pertain to the court’s jurisdiction.” Nevada v. Hicks, 533 U.S. 353, 373 (2001).

Instead, judicial immunity—like other forms of individual-based immunity such as

absolute prosecutorial immunity or qualified immunity for public and law enforcement

officials—is a merits-based limitation on the right of a plaintiff to proceed against a particular

individual in their personal capacity. Moreover, it is a common law immunity. See Pierson v.

Ray, 386 U.S. 547, 553-54 (1967); see also Gross v. Rell, 695 F.3d 211, 215 (2d Cir. 2012)

(common law is source of quasi-judicial immunity). The common law does not divest federal

courts of jurisdiction. The subject matter “jurisdiction” of the federal courts means “the courts’

statutory or constitutional power to adjudicate the case.” United States v. Cotton, 535 U.S. 625,

630 (2002) (emphasis added). There is nothing in Article III or elsewhere in the federal

constitution that bars a federal court from hearing individual-capacity claims against federal or

state court judges (or against those who carry out judges’ orders). And there is no federal statute

that strips the federal courts from hearing individual-capacity claims for money damages against

judges or those who carry out judicial orders.51

50 Doc. #168-1 at 12 n.7; see also Doc. #168-2 (Dreisbach affidavit).

51 Congress has amended 42 U.S.C. § 1983 to state that “in any action brought against a judicial officer for an act or

omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree

was violated or declaratory relief was unavailable.” Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009). But Wang

does not seek injunctive relief and instead seeks money damages for actions that occurred long ago.

To be sure, there are good reasons to justify the doctrines of absolute judicial immunity

and the derivative doctrine of quasi-judicial immunity. See, e.g., Mireles v. Waco, 502 U.S. 9

(1991) (per curiam). But these reasons have nothing to do with whether a federal court has

jurisdiction in the first place over individual-capacity lawsuits against judges and those who

carry out judicial orders.

What is more, an individual immunity differs from an institutional immunity such as

sovereign immunity which has constitutional separation-of-powers underpinnings for suits

against the federal government and constitutional federalism underpinnings for suits against state

governments including protection for the States from federal court lawsuits under the Eleventh

Amendment. See Cangemi v. United States, 13 F.4th 115, 129 (2d Cir. 2021) (Rule 12(b)(1)

governs motion to dismiss lawsuit against federal government on basis of sovereign immunity);

Morabito v. New York, 803 F. App’x 463, 465 n.2 (2d Cir. 2020) (Rule 12(b)(1) governs motion

to dismiss lawsuit against state government on basis of Eleventh Amendment and related

principles of state sovereign immunity).

Thus, as then-Judge Ketanji Brown Jackson has explained, “[a]lthough the doctrines of

absolute judicial immunity and sovereign immunity both lead to the same result, these two

grounds for dismissal have different bases under the federal rules,” because “[s]overeign

immunity strips the court of jurisdiction and thus renders dismissal appropriate under Rule

12(b)(1),” while “[b]y contrast, absolute judicial immunity is a non-jurisdictional bar to a claim

asserted against a federal judge stemming from official judicial acts and is thus subject to

dismissal under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.”

Smith v. Scalia, 44 F. Supp. 3d 28, 40 n.10 (D.D.C. 2014), aff'd, 2015 WL 13710107 (D.C. Cir.

2015).

Judge Bianco has likewise ruled that “[m]otions to dismiss on grounds of immunity from

suit, including absolute judicial immunity, are properly analyzed under Rule 12(b) (6), rather

than Rule 12(b)(1), of the Federal Rules of Civil Procedure.” Rios v. Third Precinct Bay Shore,

2009 WL 2601303, at *1 (E.D.N.Y. 2009); see also Morrison v. Walker, 704 F. App'x 369, 372

n.5 (5th Cir. 2017) (same); LaTulippe v. Harder, 574 F. Supp. 3d 870, 879 (D. Or. 2021) (same).

Moreover, numerous federal appeals courts have ruled that a defendant who fails to

timely raise a defense of judicial immunity has waived the defense. See, e.g., Reynaga

Hernandez v. Skinner, 969 F.3d 930, 937 n.1 (9th Cir. 2020); Kelsey v. Withers, 718 F. App'x

817, 821 (11th Cir. 2017); Boyd v. Carroll, 624 F.2d 730, 732-33 (5th Cir. 1980). But of course

if the defendants are right that judicial immunity is a matter of federal subject matter jurisdiction

under Rule 12(b)(1) rather than the merits of a claim under Rule 12(b)(6), then all these federal

appeals court decisions have been wrongly decided because it is hornbook law that “[s]ubject-

matter jurisdiction can never be waived or forfeited.” Gonzalez v. Thaler, 565 U.S. 134, 141

(2012).

As a leading treatise recognizes, “[t]he defense of qualified or judicial immunity has also

been held to be properly raised via Rule 12(b)(6) rather than Rule 12(b)(1), although one can

find courts not being too particular about the distinction.” 5B Charles A. Wright & Arthur R.

Miller, FEDERAL PRACTICE AND PROCEDURE § 1350 (3d ed.). Alas, there are some outlier rulings

which claim that a party may assert a judicial immunity or quasi-judicial immunity defense by

way of a 12(b)(1) motion to dismiss. See, e.g., Cruzado v. Rogers, 2022 WL 522955, at *1 (W.D.

Wash. 2022); Chien v. Motz, 2019 WL 346761, at *6, report and rec. adopted, 2019 WL

346406, at *1 (E.D. Va. 2019); Marshall v. New York State Pub. High Sch. Athletic Ass'n, Inc.,

374 F. Supp. 3d 276, 287 (W.D.N.Y. 2019). But these rulings do not cite or acknowledge the

Supreme Court’s decision in Nevada v. Hicks that there is no authority for the proposition that

absolute or qualified immunity defenses go to a federal court’s jurisdiction. And other than bold

assertions that Rule 12(b)(1) governs motions to dismiss based on judicial immunity, they do not

attempt to explain why that is or should be so.

So I conclude that Rule 12(b)(6)—not Rule 12(b)(1)—governs the defendants’ claim that

they are entitled to quasi-judicial immunity. Therefore, I decline at this time to consider Dr.

Dreisbach’s affidavit and rely instead on the allegations of Wang’s complaint to evaluate the

defense of quasi-judicial immunity.

As the defendants note in their briefing, courts recognize a “distinction between claims

based on the actions actually authorized by court order, which are barred by quasi-judicial

immunity, and those based on the manner in which a court order is enforced, which are not.”

Russell v. Richardson, 905 F.3d 239, 248 (3d Cir. 2018). “Court officers who enforce judicial

orders are not entitled to absolute immunity if they exceed the scope of the court’s order or

enforce it in an improper manner.” DeVito v. Neiman, 548 F. Supp. 3d 314, 319 (E.D.N.Y.

2021); see also Schneider v. County of Will, 366 F. App’x 683, 685 (7th Cir. 2010) (“We

have . . . refused to extend quasi-judicial immunity to the manner a judge’s order was

executed.”); Bey ex rel. Palmgren v. Conte, 2019 WL 1745672, at *4 (S.D.N.Y. 2019) (where

the plaintiff is not “essentially challenging the judge’s direction . . . rather than the manner [the

defendants] executed the judge’s order” then quasi-judicial immunity does not bar the suit);

Wright v. United States, 162 F. Supp. 3d 118, 129 (E.D.N.Y. 2016) (a defense of immunity is not

available where the plaintiff’s claims arose out of the manner of carrying out a judge’s order

which itself made no mention of how it was to be effectuated).

As noted above, there was nothing in the state court’s order authorizing the involuntary

medication of Wang that authorized the defendants to forcibly administer Benadryl or to hold

Wang for ten hours in four-point restraints. Instead, the defendants argue that these measures

were “proper” to carry out the state court’s order allowing them to administer Olanzapine and

Ziprasidone. But even assuming that quasi-judicial immunity extends to acts that were “proper”

in support of the state court’s medication order, the facts as alleged in the complaint do not

establish that the measures taken here were proper or necessary.

The defendants first contend that Wang’s prolonged restraint was justified by the fact that

he “continued to pose an imminent risk of physical harm to others,” was “agitated and physically

rigid,” and “repeatedly threatened staff with violence.”52 But Wang disputes this account. While

he concedes that he declined to affirmatively state to Dr. Kurlyandchik that he would not

physically threaten anyone if he were taken out of restraints, he also insists that at no time did he

pose a physical threat and explains that he did not want to make an affirmative statement because

it would indicate that he had wanted to harm others in the past. Construing the facts in the light

most favorable to Wang, he was not threatening or violent to justify placing him in four-point

restraints for ten hours to administer various doses of medication.

The defendants further argue that Benadryl is often administered alongside antipsychotic

drugs to diminish potential side effects.53 But Wang alleges he was not experiencing any side

effects from the antipsychotic medication when he received the first injection of Benadryl. This

suggests that the first dose of Benadryl was not in fact necessary or proper to carry out the state

court’s medication order. The defendants also suggest that at least the second dose of Benadryl

was also administered in part to sedate the plaintiff. But because the complaint states Wang was

52 Doc. #168-1 at 13-14.

53 Id. at 14.

not physically agitated and posed no violent threat to the defendants, this reason also cannot

justify the forced injection, and Wang alleges that the Benadryl harmed him by causing him to

fall after he was finally released from his four-point restraints.

In short, viewing the facts in the light most favorable to Wang and his complaint, the

defendants have not established that they are entitled to quasi-judicial immunity. Accordingly, I

will deny the defendants’ motion to dismiss insofar as it is based on the defense of quasi-judicial

immunity.

Qualified immunity

Finally, the defendants move to dismiss pursuant to Rule 12(b)(6) on the ground that they

are entitled to qualified immunity. They argue that they are entitled to a defense of qualified

immunity because Wang has not alleged facts to show that they violated a clearly established

federal right.

The doctrine of qualified immunity protects a government officer from liability for

money damages stemming from a violation of the Constitution if the officer engaged in conduct

that an objectively reasonable officer or official would not necessarily have known at the time

amounted to a violation of the plaintiff’s constitutional rights. See Horn v. Stephenson, 11 F.4th

163, 168-69 (2d Cir. 2021). Thus, in order for a plaintiff to overcome a defense of qualified

immunity, the plaintiff must show that the defendants violated a right of the plaintiff that was

clearly established law at the time of the conduct in question. Ibid.

Because it is sometimes difficult for an officer to understand how legal doctrine may

apply to particular facts, a court must identify the right at issue with an appropriate level of

specificity that is particularized to the facts of the case. Ibid. This is not to say that there must be

a prior case involving identical facts or that is directly on point, so long as existing precedent

makes clear beyond reasonable debate that what the officer was doing was a violation of the

plaintiff’s then-recognized constitutional rights. Ibid.

In deciding whether the law was clearly established at the time of the alleged conduct,

courts in the Second Circuit look to decisions of the U.S. Supreme Court as well as decisions of

the Second Circuit, and they may also consider decisions from other federal circuit courts. Ibid.

If these decisions either dictated or clearly foreshadowed a conclusion that the officer violated a

plaintiff’s constitutional rights, then this overcomes a defense of qualified immunity. Ibid.

The defense of qualified immunity may properly be raised at the pre-discovery, motion-

to-dismiss stage because “[q]ualified immunity provides government officials ‘immunity from

suit rather than a mere defense to liability.’” Looney v. Black, 702 F.3d 701, 705 (2d Cir. 2012)

(quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). Indeed, “[t]he driving force behind

creation of the qualified immunity doctrine [is] a desire to ensure that insubstantial claims

against government officials [will] be resolved prior to discovery.” Id. at 706.

Yet when a defendant raises a defense of qualified immunity at the initial pleadings stage,

a court must take care not to engage in a premature determination of the facts in a manner at

odds with those facts that the plaintiff has pleaded in the complaint. The defendant presenting an

immunity defense on a motion to dismiss “must therefore show not only that the facts supporting

the defense appear on the face of the complaint, but also that it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Horn,

11 F.4th at 170. “Moreover, the plaintiff is entitled to all reasonable inferences from the facts

alleged, including those that defeat the immunity defense.” Ibid.

As noted above, there are two basic aspects of Wang’s claim: first, that he was wrongly

subject to forcible administration of Benadryl and, second, that he was wrongly held in four-

point restraints for about ten hours. With respect to the medication claim, it was clearly

established as of February 2017 that “[t]he forcible injection of medication into a nonconsenting

person’s body represents a substantial interference with that person’s liberty” United States v.

Hardy¸ 724 F.3d 280, 295 (2d Cir. 2013) (citing Washington v. Harper, 494 U.S. 210, 229

(1990)). A detainee “who has not been convicted of a crime has no lesser right” in “avoiding the

unwanted administration” of medication. Ibid.

Wang alleges that he did not consent to either dose of Benadryl. Under the clearly

established precedent set forth by both the Second Circuit and the Supreme Court, the forcible

and unwanted injection of Benadryl outside the scope of the medication order violated his right

to substantive due process of bodily integrity.

The defendants respond that neither the Supreme Court nor the Second Circuit have

found that the right to avoid unwanted medication extends to “short-acting medications like

Benadryl to prevent or mitigate the adverse effects of such drugs.”54 But viewing the facts in the

light most favorable to Wang, there is no evidence that Benadryl is “short-acting” or that it was

necessary “to prevent or mitigate the adverse effects” of the Zyprexa (Olanzipine) that he had

received.

In any event, despite the absence of a particular case that has outlawed the involuntary

administration of Benadryl without a court order, “officials can still be on notice that their

conduct violates [clearly] established law even in novel factual circumstances.” Jones v. Treubig,

963 F. 3d 214, 225 (2d Cir. 2020). And the Supreme Court has “expressly rejected a requirement

that previous cases be fundamentally similar” to establish clear precedent for qualified immunity

purposes. See Hope v. Pelzer, 536 U.S. 730, 731 (2002).

54 Id. at 23.

Well before February 2017, the Second Circuit made clear that an individual’s right to

refuse unwanted medical treatment extends beyond antipsychotic drugs. See, e.g., Pabon v.

Wright, 459 F.3d 241, 249 (2d Cir. 2006) (“At the time of Pabon’s Hepatitis C treatment [with

Interferon drug], it was clearly established that the Fourteenth Amendment confers the right to

refuse medical treatment.”). There is no reason to suppose that any objectively reasonable

medical professional would believe the right to refuse unwanted medical treatment in the form of

forcible administration of medications is subject to an exception for over-the-counter drugs,

short-acting drugs, or drugs that a doctor thinks appropriate for side effects but that are not

wanted or consented to by the patient.

The defendants further claim that there was an “emergency” to justify the forcible

administration of Benadryl. But again this is contrary to the allegations of the complaint, because

Wang claims he was not acting threateningly or violently or suffering side effects for which the

administration of Benadryl was warranted.

The defendants additionally argue that nurses Mejias and Hall should have qualified

immunity because they were merely following Dr. Dreisbach’s orders when they administered

the two dosages of Benadryl. But both cases that the defendants cite ruled that the nurses were

not liable because they were following instructions from a doctor that were “objectively

reasonable.” Douglas v. Stanwick, 93 F. Supp. 2d 320, 326 (W.D.N.Y. 2000); see Roy v. Alicia,

2021 WL 966010, at *6 (N.D.N.Y. 2021) (because the prescribing doctor was not liable for his

involuntary medication order, then the nurse that injected the plaintiff pursuant to the doctor’s

orders also could not be liable). Viewing the facts in the light most favorable to Wang, I cannot

conclude at this time that the doctor’s decision to prescribe Benadryl against Wang’s will and

outside the dictates of the state court’s medication order was “objectively reasonable.” Moreover,

Wang alleges that nurse Mejias fabricated facts about his behavior that contributed to the

decision to administer Benadryl and that nurse Hall relied on the need for the Benadryl to redress

side effects that he was not experiencing.

As to Wang’s separate claim arising from his extended time in four-point restraints, the

Due Process Clause of the Fourteenth Amendment protects a pre-trial detainee from the use of

excessive force that amounts to punishment, and from actions that are not rationally related to a

legitimate nonpunitive government purpose or actions that are excessive in relation to that

purpose. See Kingsley v. Hendrickson, 576 U.S. 389, 397-400 (2015); Frost v. New York City

Police Dept., 980 F.3d 231, 251-52 (2d Cir. 2020).

Wang was held in four-point restraints for about ten hours. He was released only when he

requested to use the restroom shortly after midnight. He alleges that he was neither physically

violent nor threatening harm during this time. To be sure, he was refusing and resisting the

unwanted administration of Zyprexa (Olanzapine), but even so there is no reason to suppose that

it was necessary to continue to hold Wang in 4-point restraints for hours to administer the second

dose of Zyprexa (Olanzapine) rather than monitoring or detaining him in some other manner that

did not cause him extraordinary pain. And to the extent he was further detained for the unwanted

administration of Benadryl for which the defendants did not have a court order to administer to

him, this makes the continued restraint all the more unreasonable. Wang insists as well that nurse

Delciampo fabricated facts about his behavior that she used to recommend him remaining in

four-point restraints. Viewing the facts in the light most favorable to the allegations of the

complaint, an objectively reasonable medical professional in the defendants’ position would have

known that it violated Wang’s constitutional right to be free from the use of excessive force by

maintaining him in four-point restraints for approximately ten hours despite any genuine need to

do so.

In Hope v. Pelzer, 536 U.S. at 738, the Supreme Court held it was a clear violation of the

Eighth Amendment prohibition against wanton and unnecessary pain to handcuff an inmate to a

hitching post for seven hours, where he was exposed to the sun and deprived of a bathroom

break. Other circuits have also found that subjecting an inmate who is not “violent, combative, or

self-destructive at any point” to mechanical restraint in a four-point restraint chair for prolonged

periods of time can be a violation of the prohibition against excessive force. See Young v.

Martin, 801 F.3d 172, 181-82 (3d Cir. 2015) (Eighth Amendment violation where inmate was

restrained without reason for fourteen hours); Barker v. Goodrich, 649 F.3d 428, 434-35 (6th

Cir. 2011) (denying qualified immunity where sentenced inmate was handcuffed and placed in a

detention cell for twelve hours, during which time he missed a meal, was unable to sit or lie

down, use the restroom, or get water from the fountain). That Wang was not a sentenced prisoner

but a pre-trial detainee at the time of the incident makes his prolonged restraint all the more

problematic. See also Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (“Pretrial detainees have

not been convicted of a crime and thus may not be punished in any manner—neither cruelly and

unusually nor otherwise.”).

The defendants argue that their decision to keep Wang restrained is entitled to deference

as a “presumptively valid” decision made by a professional.55 But for all the reasons above and

on the facts as alleged, Wang’s prolonged restraint was a “substantial departure from accepted

professional judgment” such that the decision does not merit deference at this time. See

Youngberg v. Romeo, 457 U.S. 307, 321 (1982).

55 Id. at 19-20.

The standard set in Hope, along with the precedent set by other circuits, clearly

established at the time of the conduct in question that subjecting an inmate—let alone a pretrial

detainee—to mechanical restraints for ten hours constitutes excessive and unreasonable force

absent a demonstrated need to do so. Accordingly, I conclude that the defendants are not entitled

to qualified immunity at this time as to Wang’s claims for the forcible administration of

Benadryl and the prolonged use of four-point restraints.

CONCLUSION

For the reasons stated above, the Court DENIES the defendants’ motion to dismiss (Doc.

#168) and DENIES as moot the plaintiff’s motion in opposition to the defendants’ motion to

dismiss (Doc. #184).

It is so ordered.

Dated at New Haven this 24th day of March 2023.

/s/ Jeffrey Alker Meyer

Jeffrey Alker Meyer

United States District Judge