Todd v. Park City 3 & 4 Apartments, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

MAXINE A. TODD,

Plaintiff,

v.

NEW YORK CITY HEALTH AND HOSPITALS

CORPORATION, OFFICE OF LEGAL AFFAIRS,

CLAIMS DIVISION; EMILY STONE, AS EXECUTOR

OF DIANE STONE’S ESTATE; DEEP LOHIA, MD,

MEMORANDUM AND ORDER

LIC # 268559; NNAMDI ODIAH MD, LIC # 260378;

ALEX DOMPREH, NP; LILY ZHU, RN; MANUELA 16-CV-2124 (LDH)(LB)

LORICO, RN; SEWDAT NIRANJAN, RN; PARK

CITY 3 & 4 APARTMENTS, INC.; LOUIS

KRAMBERG, PRES. OF CO-OP BOARD; CHANDRA

JAIN, CO-OP MGR.; P.O. BERLINGERIO, SHIELD

#2501; P.O. MARCELLA VCLAK, SHIELD # 951423;

FRANCISCO BALDANZA, NYC FIRE DEPT EMT,

Defendants.

LASHANN DEARCY HALL, United States District Judge:

Plaintiff Maxine A. Todd, proceeding pro se, brings the instant action against New York

City Health and Hospitals Corporation employees Deep Lohia, MD, Nnamdi Odiah, MD, Alex

Dompreh, NP, Lily Zhu, RN, Manuela Lorico, RN, Sewdat Niranjan, RN, and Emily Stone, as

Executor of Diane Stone’s Estate, asserting claims for violations of her Fourth Amendment right

to be free from unreasonable searches and seizures and her Fourteenth Amendment procedural

and substantive due process rights under 42 U.S.C. § 1983. Defendants move pursuant to Rule

56 of the Federal Rules of Civil Procedure for summary judgment to dismiss the amended

complaint in its entirety.

UNDISPUTED FACTS1

On July 23, 2013, Plaintiff was transported to the Elmhurst Hospital Center’s Psychiatric

Emergency Department by Emergency Medical Services. (Defs.’ 56.1 Statement (“Defs.’ 56.1”)

¶ 1, ECF No. 255.) Plaintiff asserts that her entire hospital record is “fraudulent,” and,

accordingly, unless otherwise noted, all facts regarding her medical care are disputed.2 (Pl.’s

Opp’n Defs.’ 56.1 Statement (“Pl.’s 56.1 Opp’n”) at 25 ¶ 2, ECF No. 260.3)

On the day Plaintiff arrived at Elmhurst Hospital, she was examined and interviewed by

Nurses Zhu and Dompreh, and a social worker, in the emergency department. (Defs.’ 56.1 ¶¶ 2–

21.) In these initial examinations, Plaintiff reported a prior suicide attempt in 2000 and a history

of depression. (Id. ¶¶ 6, 20–21.) The nurses and social worker described Plaintiff as being

paranoid and delusional. (Id.) For example, according to the social worker, Plaintiff reported

that someone was using bathroom pipes to release toxins into her apartment, and that she

believed she was the victim of organized gangs and stalking. (Id. ¶ 21.) Later that afternoon,

Plaintiff was examined by Dr. Lohia, an attending physician, who had reviewed the records from

Nurse Zhu, Nurse Dompreh, and the social worker. (Apfel Decl. Sup. Def.’s Mot. Sum. J.

(“Apfel Decl.”), Ex. E ¶¶ 8–11, ECF No. 254-3.) After reviewing the medical record and

conducting his own evaluation, Dr. Lohia diagnosed Plaintiff with “psychosis not otherwise

specified.” (Id. ¶¶ 4, 8–12.) He concluded that Plaintiff had a mental illness that required

immediate treatment in a mental hospital and was likely to result in serious harm to herself or

1 The following facts are taken from the parties’ statements of material facts pursuant to Local Rule 56.1 and

annexed affidavits and exhibits. Unless otherwise noted, the facts are undisputed. The Court assumes the parties’

familiarity with the relevant facts set forth in the Court’s March 31, 2021 memorandum and order. (ECF No. 267.)

2 Plaintiff does not cite to any admissible evidence on this point other than her own recollection about her medical

care. (See generally Pl.’s 56.1 Opp’n at 24–33.)

3 Pagination refers to the pages assigned by the Court’s ECF system. Paragraph numbers refer to Plaintiff’s

responses to the corresponding paragraphs in Defendants’ 56.1 Statement. Thus, a citation to “25 ¶ 2” refers to what

Plaintiff identifies in her 56.1 Opposition as “Opposition to 2” on ECF page 25.

others. (Id. ¶¶ 12–13.) Dr. Lohia further determined that Plaintiff should be admitted for

observation and treatment. (Id. ¶ 13.) Accordingly, he executed Form OMH 474 and provided

Plaintiff with a Notice of Status and Rights for Emergency Admission (the “Notice”).4 (Id. ¶¶

13, 15.) Dr. Lohia signed the form attesting that the Notice had been provided to Plaintiff. (Id. ¶

15.) Subsequently, Plaintiff was prescribed anti-psychotic and anti-anxiety medication. (Defs.’

56.1 ¶ 32.) Plaintiff was also diagnosed with hypertension and accepted medication for her

elevated blood pressure. (Id. ¶¶ 4–5, 14, 18.) This fact is undisputed. (Pl.’s 56.1 Opp’n at 25 ¶¶

4–5, 12–14, 18, 26; see also Apfel Decl., Ex. I at 202:22–204:9, ECF No. 254-7; Apfel Decl.,

Ex. B at 0048.) Later that night, Plaintiff was escorted to a psychiatric inpatient unit. (Defs.’

56.1 ¶ 36.)

Thereafter, Plaintiff signed several forms, including a “General Consent for Treatment

Form,” and the Patient’s Bill of Rights, both of which bear Plaintiff’s signature. (Id. ¶¶ 43, 46;

Apfel Decl., Ex. B at 00143–44, ECF No. 259-2.) Plaintiff asserts her signature on these forms

was forged by Nurse Lorico, who also signed the forms. (Pl.’s 56.1 Opp’n at 30 ¶ 43; Def’s 56.1

¶¶ 43–47.)

On July 24, 2013, Dr. Odiah examined Plaintiff and likewise diagnosed her with

“psychosis not otherwise specified.” (Defs.’ 56.1 ¶¶ 50–53.) Having determined that there was

a reasonable cause to believe that Plaintiff had a mental illness likely to result in harm to herself

or others, Dr. Odiah executed Form OMH 474 to extend Plaintiff’s admission at Elmhurst

Hospital beyond 48 hours. (Id. ¶ 54.) Plaintiff remained at Elmhurst Hospital until August 5,

4 Form OMH is the New York Office of Mental Health form for Emergency Admission under § 9.39 of New York’s

Mental Hygiene Law. (Apfel Decl., Ex. B at 0008–09, ECF No. 259-2.) Physicians are to complete this form when

admitting an individual involuntarily. (Id.) Similarly, the Notice is a § 9.39 Emergency Admission document that

must be provided to an individual upon his or her involuntary admission to a hospital. (Id. at 0010.) The Notice

informs the individual of his or her rights and provides contact information for the Mental Hygiene Legal Service.

(Id.)

2013, or for 13 days, until such time when Dr. Odiah determined she was stable. (Id. ¶¶ 76, 78.)

During Plaintiff’s time at Elmhurst Hospital, her medical record reflects that she received mental

health treatment and treatment for her hypertension. (Id. ¶¶ 50–74.)

STANDARD OF REVIEW

Summary judgment must be granted when there is “no genuine dispute as to any material

fact and the movant[s] are entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see

also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A genuine dispute of

material fact exists “if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson, 477 U.S. at 248. The movants bear the initial burden of

demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477

U.S. 317, 330–31 (1986); Feingold v. New York, 366 F.3d 138, 148 (2d Cir. 2004). Where the

non-movant bears the burden of proof at trial, the movants’ initial burden at summary judgment

can be met by pointing to a lack of evidence supporting the non-movant’s claim. Celotex Corp.,

477 U.S. at 325. Once the movants meet their initial burden, the non-movant may defeat

summary judgment only by producing evidence of specific facts that raise a genuine issue for

trial. See Fed. R. Civ. P. 56(e); see also Anderson, 477 U.S. at 250; Davis v. New York, 316 F.3d

93, 100 (2d Cir. 2002). The Court is to believe the evidence of the non-movant and draw all

justifiable inferences in her favor, Anderson, 477 U.S. at 255, but the non-movant must still do

more than merely assert conclusions that are unsupported by arguments or facts. BellSouth

Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996).

“It is well established that the submissions of a pro se litigant must be construed liberally

and interpreted to raise the strongest arguments that they suggest,” Triestman v. Fed. Bureau of

Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and emphasis omitted),

including when facing a summary judgment motion, Jorgensen v. Epic/Sony Records, 351 F.3d

46, 50 (2d Cir. 2003). Nevertheless, the “application of this different standard does not relieve

plaintiff of [her] duty to meet the requirements necessary to defeat a motion for summary

judgment.” Id. at 50 (internal quotation marks omitted).

DISCUSSION

To prevail on a claim under § 1983, a plaintiff must show that the conduct complained of

was “committed by a person acting under color of state law,” and that it “deprived a person of

rights, privileges, or immunities secured by the Constitution or laws of the United States.”

Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994). “Section 1983 itself creates no substantive

rights[,] [but] provides only a procedure for redress for the deprivation of rights established

elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). Here, Plaintiff alleges violations

of her Fourth and Fourteenth Amendment rights.

I. Fourteenth Amendment Due Process Claims

Under the Fourteenth Amendment, no state shall “deprive any person of life, liberty, or

property, without due process of law.” U.S. Const. amend. XIV, § 1. Here, Plaintiff asserts

violations of both her procedural and substantive due process rights.

A. Procedural Due Process

“In procedural due process claims, the deprivation by state action of a constitutionally

protected interest in ‘life, liberty, or property’ is not in itself unconstitutional; what is

unconstitutional is the deprivation of such an interest without due process of law.” Zinermon v.

Burch, 494 U.S. 113, 125 (1990). “[T]o determine whether a constitutional violation has

occurred, it is necessary to ask what process the State provided, and whether it was

constitutionally adequate.” Id. at 126. New York’s statutory scheme governing involuntary

commitments, codified in its Mental Hygiene Law (“MHL”), has been held facially sufficient to

meet the requirements of procedural due process. Rodriguez v. City of New York, 72 F.3d 1051,

1062–63 (2d Cir. 1995); Project Release v. Prevost, 722 F.2d 960, 971 (2d Cir. 1983) (“[H]aving

considered the New York M.H.L. in its entirety, our inquiry leads us to conclude that the statute

does meet the minimum facial requirements of due process—both substantive and procedural.”).

In other words, where defendants comply with the MHL, a procedural due process claim cannot

lie. See Mawhirt v. Ahmed, 8 Fed. App’x 125, 126–27 (2d Cir. 2001) (summary order)

(affirming district court grant of summary judgment dismissing federal constitutional claims

arising from involuntary civil commitment despite plaintiff’s dispute of medical and judicial

conclusions that led to such commitment because “he raised no genuine issue of material fact as

to whether he had been afforded procedural due process under the New York Mental Hygiene

Law”); Capellupo v. Nassau Health Care Corp., No. 06-CV-4922 JFB ETB, 2009 WL 1705749,

at *12 (E.D.N.Y. June 16, 2009) (granting summary judgment to defendants on procedural due

process claim where defendants complied with the requirements of the MHL).

Pursuant to MHL § 9.39, a patient may be involuntarily committed to a hospital for up to

15 days if they have a mental illness for which “immediate observation, care, and treatment in a

hospital is appropriate and which is likely to result in serious harm to [her]self or others.”

N.Y.M.H.L § 9.39(a). That said, a patient is to be admitted to a hospital involuntarily pursuant

to § 9.39 “only if a staff physician of the hospital upon examination of such person finds that

such person qualifies under the requirements of [§ 9.39].” Id. § 9.39(a). Moreover, a person

may not be retained for more than 48 hours unless another physician, who is a member of the

hospital’s psychiatric staff, confirms that the patient qualifies under the requirements of

§ 9.39(a). Id. MHL § 9.39 further provides that the individual being admitted must be provided

with a written notice of their status and rights as a patient under this section. Id. Defendants

argue that they are entitled to summary judgment on Plaintiff’s procedural due process claim as

her commitment comported with the procedural requirements of MHL § 9.39. (Defs.’ Mem.

Sup. Mot. Sum. J. (“Defs.’ Mem.”) 13–15, ECF No. 257.) The Court agrees.

Upon arrival at Elmhurst Hospital on July 23, 2013, Plaintiff was examined by Dr. Lohia,

an attending physician. (Apfel Decl., Ex. E ¶¶ 8–10.) Based on his review of Plaintiff’s medical

record, and his own evaluation, Dr. Lohia diagnosed Plaintiff with “psychosis not otherwise

specified,” hypertension, poor insight, and paranoid delusions. (Id. ¶ 12.) Dr. Lohia then

executed Form OMH 474 for Plaintiff’s emergency admission pursuant to MHL § 9.39. (Id. ¶

13; Apfel Decl., Ex. B at 0008.) According to the record and Dr. Lohia’s testimony, Dr. Lohia

provided Plaintiff with the Notice on July 23, 2013, and signed the form attesting that such

notice had been provided to Plaintiff. (Apfel Decl., Ex. E ¶ 15; Apfel Decl., Ex. B at 0010.)

Then, within 48 hours of Plaintiff’s admission, on July 24, 2013, Dr. Odiah, a psychiatry

attending at Elmhurst, likewise diagnosed Plaintiff with “psychosis not otherwise specified.”

(Defs.’ 56.1 ¶¶ 50–53.) He thereafter determined that there was reasonable cause to believe that

Plaintiff had a mental illness requiring admission and executed Form OMH 474 to extend

Plaintiff’s admission at Elmhurst Hospital beyond 48 hours. (Id. ¶ 54.) On these facts,

Defendants’ conduct satisfies the procedural due process requirements of MHL § 9.39.

Plaintiff seeks to defeat Defendants’ motion for summary judgment on this claim by

disputing that: (i) Dr. Lohia examined her on July 23, 2013; (ii) Dr. Odiah performed the

psychiatric evaluation required by MHL § 9.39; and (iii) she received the Notice. (Pl.’s Opp’n

Defs.’ Mot. Sum. J. (“Pl.’s Opp’n”) at 6, 7, 12–13, ECF No. 260; Pl.’s 56.1 Opp’n at 28 ¶¶ 27–

31.) Plaintiff is correct that these factual disputes, if supported, could provide a basis to deny

summary judgment on her procedural due process claim. However, Plaintiff’s purported factual

disputes amount to no more than naked denials that are insufficient on a motion for summary

judgment. In contrast, Defendants have adduced documentary evidence to support their

contention that the MHL § 9.39 procedures were followed. Specifically, Defendants have

directed the Court to Form OMH 474, in which Dr. Lohia contemporaneously attested, on July

23, 2013, that he examined Plaintiff and that Plaintiff was served with the Notice. (Apfel Decl.,

Ex. E ¶ 4, 11; Apfel Decl., Ex. B at 0008–10.) Dr. Odiah also contemporaneously confirmed in

Form OMH 474 that he personally observed and examined Plaintiff on July 24, 2013. (Apfel

Decl., Ex. B at 0009.) Defendants have also cited to medical records signed by Dr. Odiah and

dated July 24, 2013, which further demonstrate that he evaluated Plaintiff. (Id. at 0062–69,

0074–75, 0092–95, 0104.) This uncontroverted documentary evidence, made contemporaneous

to the events, wholly undermines Plaintiff’s unsupported contentions and is fatal to her

procedural due process claim. See Vega v. Rell, 611 F. App’x 22, 25–26 (2d Cir. 2015)

(summary order) (affirming grant of summary judgment dismissing prisoner’s deliberate-

indifference-to-medical-needs claim where prisoner’s account in his affidavit was “undercut” by

“uncontroverted medical records”); Johnson v. Kitt, No. 15-CV-7823 (KMK), 2021 WL

1105438, at *8 (S.D.N.Y. Mar. 23, 2021) (granting summary judgment for defendant where

substantial documentary evidence, namely logbook entries contemporaneously recorded by

different correction officers at different parts of the facility, comprehensively undermined

plaintiff’s claim).

Finally, Plaintiff disputes that Dr. Odiah notified the Mental Hygiene Legal Service

(“MHLS”) of Plaintiff’s involuntary admittance, as required under MHL § 9.39. Rather,

Plaintiff maintains that “someone secretly informed” MHLS of her admittance. (Pl.’s Opp’n at

7.) However, the statute does not require that the confirming psychiatrist personally notify

MHLS of a patient’s admittance. It provides only that, at the time of admission, the required

notice “shall also be given to [MHLS].” N.Y.M.H.L. § 9.39(a). Thus, whether Dr. Odiah or

someone else sent the written Notice is of no consequence. What is of consequence to Plaintiff’s

procedural due process claim is whether MHLS received the Notice. Plaintiff does not dispute

that it did.

Even if the Court were to liberally construe Plaintiff’s argument as disputing that written

notice was given to MHLS at all, or that it was given to MHLS at the time of the admission, it

would nonetheless fail. Plaintiff has not adduced any testimony from any individual with

personal knowledge of MHLS’s receipt of the Notice. Plaintiff has not, for example, provided

deposition testimony from an MHLS representative or any person with actual knowledge stating

that MHLS did not receive the Notice or that the Notice was not given to MHLS at the time of

Plaintiff’s admission. Instead, Plaintiff merely asserts that a representative from an on-site

patient mental affairs advocacy office visited Plaintiff on July 29, 2013 and stated that she had

“just been informed that [Plaintiff] was a ‘patient’ [in the psychiatric ward].” (Pl.’s Interrogatory

Responses at 60, ECF No. 260; see also Pl.’s Opp’n at 7.) This is insufficient to satisfy

Plaintiff’s burden. This is especially so where Defendants have pointed to documentary

evidence from the date of Plaintiff’s admission, which states both that Plaintiff was given a copy

of the Notice, and that “a copy of [the Notice was] also being sent to the Mental Hygiene Legal

Service.” (Apfel Decl., Ex. B at 0009.)

Plaintiff’s procedural due process claim is defeated as a matter of law.

B. Substantive Due Process

In addition to providing procedural protections, the Fourteenth Amendment’s Due

Process Clause “contains a substantive component that bars certain arbitrary, wrongful

government actions regardless of the fairness of the procedures used to implement them.”

Zinermon, 494 U.S. at 125 (internal quotations omitted). Here, Plaintiff alleges that her

temporary involuntary commitment to the hospital was a violation of her substantive due process

rights. (Pl.’s Opp’n at 3.) Specifically, Plaintiff claims that Defendants admitted her without

establishing that she had a medical illness that was likely to result in serious harm to herself or

others, as required under MHL § 9.39(a). (Id. at 6–7, 10, 12–13.) Plaintiff additionally alleges

that Defendants further violated her substantive due process rights by administering her

medication without her consent. (Id. at 8, 14–15.)

Pursuant to MHL § 9.39, an individual may be admitted to a hospital involuntarily only

where they are “alleged to have a mental illness for which immediate observation, care, and

treatment in a hospital is appropriate and which is likely to result in serious harm to [her]self or

others.”5 Id. Similarly, the involuntary administration of medicine is permitted “where the

patient presents a danger to [her]self or other members of society or engages in dangerous or

potentially destructive conduct within the institution.” Altamuro v. Cty. of Nassau, 33 F. App’x

556, 561 (2d Cir. 2002) (citing Kulak v. City of New York, 88 F.3d 63, 74 (2d Cir.1996)) (internal

quotation marks omitted). Of particular relevance here, the Second Circuit has found that the

determination of a patient’s “dangerousness” for an involuntary administration of medication

claim is “essentially the same as that under Mental Hygiene Law § 9.39.” Id. Thus, the standard

for determining Plaintiff’s substantive due process claim for the involuntary administration of

medication is the same as that for her substantive due process claim for involuntary admission.

5 “Likely to result in serious harm,” as used in § 9.39, means

1. substantial risk of physical harm to [her]self as manifested by threats of or attempts at suicide or serious

bodily harm or other conduct demonstrating that [s]he is dangerous to [her]self, or

2. a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior

by which others are placed in reasonable fear of serious physical harm.

Id. § 9.39(a)(1)–(2).

Id. (“[Plaintiff’s] unlawful restraint claim is evaluated under the same standards as his forced

medication claim.”).

Importantly, the Second Circuit has interpreted MHL § 9.39 “as implicitly deferring to

medical judgment . . . [and] requiring a physician to make a medical decision, guided by

standards that are generally accepted within the medical community.” Rodriguez, 72 F.3d at

1062–63 (internal citations and alterations omitted). “Though committing physicians are not

expected to be omniscient, the statute implicitly requires that their judgment . . . be exercised on

the basis of substantive and procedural criteria that are not substantially below the standards

generally accepted in the medical community.” Id. at 1063. Thus, a doctor will not be liable for

a substantive due process violation for treatment decisions, including involuntary hospitalization

or administration of medication, “unless such decisions are such a substantial departure from

accepted judgment, practice, or standards as to demonstrate that [she] actually did not base the

decision on such a judgment.” Kulak, 88 F.3d at 75 (internal quotation and alteration omitted)

(applying standard to claims regarding administration of medication); see also Bolmer v.

Oliveira, 594 F.3d 134, 144 (2d Cir. 2010) (observing that § 1983 claim for involuntary

commitment requires the commitment decision “be the product of criteria substantially below

those generally accepted in the medical community.”).

While the interpretation of MHL § 9.39 is a question of law, what the medical

community’s generally accepted standards are is a question of fact. Rodriguez, 72 F.3d at 1063.

Of particular relevance here, to successfully bring a substantive due process claim, a “plaintiff

bears the burden of producing competent evidence, typically in the form of expert testimony,

regarding applicable medical standards and the defendants’ alleged failure to meet those

standards.” Aouatif v. City of New York, No. 07-CV-1302, 2019 WL 2410450, at *7–8

(E.D.N.Y. May 31, 2019) (granting summary judgment to defendants on due process claim

where, in part, plaintiff failed to adduce any evidence or expert testimony setting forth the

accepted medical standards with respect to involuntary hospital admission or how the medical

professional defendant failed to satisfy such standards), aff’d, 441 F. App’x 24 (2d Cir. 2011);

see also Altamuro, 33 F. App’x at 561 (affirming directed verdict for doctor defendants on

involuntary commitment and involuntary administration of medication claims where plaintiff’s

expert testimony was excluded and, although plaintiff’s testimony disputed some of the factual

events documented in his chart, he presented no evidence that defendants’ conduct fell

substantially below generally accepted medical standards); Meyers v. Health & Hosp. Corp., No.

13 CV 1258 CBA LB, 2014 WL 4160796, at *6 (E.D.N.Y. Mar. 28, 2014), report and

recommendation adopted, No. 13-CV-1258 CBA LB, 2014 WL 4161975 (E.D.N.Y. Aug. 19,

2014) (granting summary judgment to doctor defendants where plaintiff failed to offer any

evidence to demonstrate that doctors’ professional opinions to medicate him against his will

deviated from accepted medical standards); Kraft v. City of New York, 696 F. Supp. 2d 403, 413

(S.D.N.Y. 2010) (collecting cases), aff’d, 441 F. App’x 24 (2d Cir. 2011). Defendants argue that

the lack of expert testimony regarding the alleged involuntary admission and involuntary

administration of medicine is fatal to Plaintiff’s substantive due process claims. (Defs.’ Mem. at

18–19.) Defendants are correct.

Plaintiff did not consult or retain a medical expert.6 Rather, Plaintiff simply maintains

that her entire medical record is fraudulent. (Pl.’s 56.1 Opp’n at 25 ¶ 2; see generally Pl.’s

6 Discovery lasted approximately 11 months and concluded on October 1, 2019. On May 2, 2019, Magistrate Judge

Bloom directed the parties to write to the Court if they believed they needed to conduct expert discovery. Plaintiff

did not write to the Court and did not retain an expert. It is no doubt burdensome for a pro se litigant to retain an

expert witness. However, it should not go without mention that at the December 4, 2019 status conference, the

Court informed Plaintiff that it would be beneficial for her to be represented at this stage in the proceedings. (Dec. 4,

2019 Tr. 16:14–17:20; Transcript on file with Chambers.) With Plaintiff’s consent, the Court found well-resourced

counsel, who agreed to represent Plaintiff pro bono and provided that counsel with Plaintiff’s contact information.

Affidavit at 36–40, ECF No. 260.) Such a blanket, bare denial of the accuracy of the medical

record cannot carry the day. See Kulak, 88 F.3d at 76 (observing that “bare denials of statements

allegedly made by patients” are not enough to defeat summary judgment on a due process

claim); Aouatif, 2019 WL 2410450, at *8 (granting summary judgment where plaintiff only

provided “a blanket denial of the accuracy of medical records”); Katzman v. Khan, 67 F. Supp.

2d 103, 111 (E.D.N.Y. 1999) (finding that plaintiff’s “blanket denials of his bizarre behavior and

bald assertions that his examining doctors fabricated their observations” insufficient to defeat

summary judgment), aff’d, 242 F.3d 365 (2d Cir. 2000). Absent expert medical testimony,

Plaintiff cannot withstand Defendants’ motion for summary judgment on her substantive due

process claims. Accordingly, Plaintiff’s due process claims are dismissed.

II. Fourth Amendment Unreasonable Seizure Claim

The Fourth Amendment protects individuals against unreasonable searches and seizures.

See U.S. Const. amend. IV. “A warrantless seizure for the purpose of involuntary hospitalization

may be made only upon probable cause, that is, only if there are reasonable grounds for believing

that the person seized is dangerous to herself or to others.” Anthony v. City of New York, 339

F.3d 129, 137 (2d Cir. 2003) (internal quotations omitted). Plaintiff claims that Defendants

violated her Fourth Amendment rights by confining her to the hospital while she awaited a

psychiatric evaluation and for the duration of her involuntary commitment. (Pl.’s Opp’n at 11.)

As with a due process claim, to defeat a summary judgment motion under the Fourth

Amendment, Plaintiff must show that Defendants’ determinations fell substantially below

accepted medical standards. Kraft, 696 F. Supp. 2d at 416 (granting doctor defendants’ motion

While discovery was closed at that point, having secured counsel for Plaintiff, the Court would have liberally

granted any request by Plaintiff to re-open discovery, particularly to retain an expert. Nevertheless, Plaintiff opted

to continue litigating on a pro se basis rather than through counsel.

for summary judgment on Fourth Amendment false arrest claim where plaintiff failed to present

evidence that defendants’ determinations fell substantially below accepted medical standards);

see also Mittelman v. Cty. of Rockland, No. 07-CV-6382 CM LMS, 2013 WL 1248623, at *28–

29 (S.D.N.Y. Mar. 26, 2013) (plaintiff’s failure to submit any evidence from any doctor to

support plaintiff’s position that his involuntary admission amounted to an unreasonable seizure,

let alone evidence that contradicted defendants’ expert opinion, “doom[ed] his [Fourth

Amendment] claim”). Plaintiff has failed to do so through expert testimony or otherwise.

Accordingly, Defendants are entitled to summary judgment on Plaintiff’s Fourth Amendment

claim.

CONCLUSION

For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED and

the claims against them are dismissed.7

SO ORDERED.

Dated: Brooklyn, New York /s/ LDH

September 29, 2021 LASHANN DEARCY HALL

United States District Judge

7 In addition, the claims against Dr. Stone are ripe for dismissal for lack of personal involvement. “[P]ersonal

involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under §

1983.” McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977). The record is utterly devoid of evidence that Dr.

Stone had personal involvement in the decision to hospitalize Plaintiff or in Plaintiff’s medical treatment during her

hospitalization. (Def. Stone’s Supp. 56.1 Statement ¶¶ 16–19, ECF No. 256.) Plaintiff has offered no concrete

evidence to the contrary. (Pl.’s Opposition to Def. Stone’s Supp. 56.1 Statement at 9–10 ¶¶ 16–19, ECF No. 265.)