Moussa v. Sullivan

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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:

MOMEN MAHMOUD MOUSSA,

:

Plaintiff,

: MEMORANDUM AND ORDER

– against – : 22-CV-3709 (AMD) (SJB)

:

ANN MARIE T. SULLIVAN, Commissioner of

NYS Office of Mental Hygiene, :

:

Defendant.

:

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ANN M. DONNELLY, United States District Judge:

On June 22, 2022, the plaintiff brought this pro se action pursuant to 42 U.S.C. § 1983.

On July 22, 2022, I dismissed the complaint, but grant ed the plaintiff leave to amend, which he

did on August 17, 2022. (ECF Nos. 4, 5.) Because the amended complaint does not cure the

deficiencies that I identified previously, the action is dismissed.

BACKGROU ND

This action arises from the plaintiff’s experiences at civil commitment hearings between

2018 and 2022. In his initial complaint, the plaintiff challenged the constitutionality of New

York’s Mental Hygiene Law and asked the Court to remove his name and mental health

information from federal and state databases.1 I dismissed the action for failure to state a claim

on July 22, 2022, and granted the plaintiff leave to amend. (ECF No. 4.) In addition to renewing

the claims that were dismissed, the plaintiff’s amended complaint alleges more detail about his

1 I do not repeat the factual allegations from the plaintiff’s initial complaint, which I summarized in my

prior order. (ECF No. 4.)

history of civil commitment, and brings an “as applied cause of action” against New York’s

Mental Hygiene Law. (ECF No. 5 ¶¶ 10, 21.)

The plaintiff alleges facts about a February 2018 commitment hearing involving three

former U.S. presidents, former Governor Andrew Cuomo and former Mayor Bill de Blasio.

(ECF No. 5 ¶ 10.) Specifically, he alleges that “Barack Obama urged the judge to commit the

plaintiff while US President George Bush (43) urged the Judge to release the plaintiff (citing

Texas civil commitment law as an example). Then-President Donald Trump tried to ‘pardon’ the

plaintiff but the pardon was rejected because civil commitments are not criminal law.” (Id.)2

The plaintiff complains about other civil commitment hearings—including one in June

2020, during which the plaintiff’s mother allegedly gave false testimony (id. ¶ 11), and another

in March 2022 at which the plaintiff “was never able to confront and cross examine those

making allegations against him in court.” (Id. ¶ 13.) He also claims that the March 2022 hearing

was “retaliation for a domestic abuse complaint [that the plaintiff] filed against his father.” (Id.)

Finally, the plaintiff describes his involvement in an “alleged Russiagate scandal against

[the] plaintiff’s friend(s) and former US President Donald Trump (and Bush family).” (Id. ¶

25.)3 He alleges that New York’s Mental Hygiene Law—which according to the plaintiff “is

prone to weaponization by politicians against political dissidents like the plaintiff” (id. ¶ 10)—

has been “misused against the plaintiff because of his role in the alleged Russiagate scandal.”

(Id. ¶ 21.) He claims, “This is the only as applied charge the plaintiff alleges, all previously

listed causes of action have been facial challenges to the law.” (Id.)

2 The plaintiff made similar allegations in a separate action, which I dismissed as frivolous pursuant to 28

U.S.C. § 1915(e)(2)(B)(i). See Moussa v. Obama et al., No. 22-CV-4625, ECF No. 9 (E.D.N.Y. Oct.

24, 2022).

3 Attached to the plaintiff’s complaint is a series of exhibits, including a letter with additional factual

allegations about “Russiagate” and several politicians who the plaintiff alleges played a role in his

commitment proceedings. (ECF No. 5 at 17-18.)

LEGAL STANDARD

To avoid dismissal, a complaint must plead “enough facts to state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is

plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631

F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although

“detailed factual allegations” are not required, a complaint that includes only “labels and

conclusions” or “a formulaic recitation of the elements of a cause of action will not do.”

Twombly, 550 U.S. at 555. A complaint fails to state a claim “if it tenders naked assertions

devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (internal quotation marks,

alterations and citations omitted).

Because the plaintiff is proceeding pro se, I construe his complaint liberally, and evaluate

it by “less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,

551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see

also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). The plaintiff’s claims must be “read to raise

the strongest arguments that they suggest.” Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 387

(2d Cir. 2015) (quotations and citations omitted). Nevertheless, I must dismiss an in forma

pauperis action if it “(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).

DISCUSSION

Facial Challenge to New York’s Mental Hygiene Law

The plaintiff brings a facial challenge to New York’s Mental Hygiene Law. He claims

that the law violates the Sixth, Eighth and Ninth Amendments, and also reasserts his claim that

the law violates the Fourteenth Amendment’s due process clause because it allows doctors to

make designations of “dangerousness” based on reports of family members and without a

probable cause hearing or other opportunity for the patient to confront the accuser. (ECF No. 5

¶¶ 16, 19.)

The amended complaint does not include any new factual or legal assertions that would

alter my prior decision dismissing the plaintiff’s due process claim. As I explained, federal

courts have rejected similar due process challenges to the New York Mental Hygiene Law. See

Moussa v. Sullivan, No. 22-CV-3709, 2022 WL 2906177, at *2 (E.D.N.Y. July 22, 2022)

(collecting cases rejecting facial challenges to the Mental Hygiene Law).

The plaintiff’s claims under the Sixth, Eighth and Ninth Amendments are also unavailing.

The Sixth Amendment “expressly protects only those in criminal proceedings and accordingly

does not apply to the [application of New York’s Mental Hygiene Law].” Cortlandt v.

Westchester Cnty., No. 07-CV-1783, 2007 WL 3238674, at *6 (S.D.N.Y. Oct. 31, 2007)

(citations omitted). The plaintiff cannot bring Eighth Amendment claims “because ‘the Eighth

Amendment applies only to convicted prisoners.’” Smith v. Brown, 296 F. Supp. 3d 648, 661

(S.D.N.Y. 2017) (quoting Simpson v. Town of Warwick Police Dept., 159 F. Supp. 3d 419, 443

(S.D.N.Y. 2016)). Finally, the plaintiff has no viable claim under the Ninth Amendment. See

Rini v. Zwirn, 886 F. Supp. 270, 289 (E.D.N.Y. 1995) (“No independent constitutional protection

is recognized which derives from the Ninth Amendment and which may support a § 1983 cause

of action.” (citations omitted)).

Request to Remove Information from Databases

The plaintiff renews his request to remove his name and mental health information from

federal and state databases, but again does not identify any legal basis on which the Court could

grant him such relief. For the reasons explained in my previous decision, the claim is dismissed.

See Moussa, 2022 WL 2906177, at *3-4

Claims on Behalf of Doctors and Hospitals

The plaintiff purports to bring a claim on behalf of an unidentified group of doctors and

hospitals. (ECF No. 5 ¶ 20.) He alleges that the New York Mental Hygiene Law “essentially

ties the hands of doctors and hospitals,” and “unfairly opens up doctors and hospitals to the

possibilities of sanctions and liabilities for conducting roles they may not be adequately trained

or prepared for.” (Id.)

“In the ordinary course, a litigant must assert his or her own legal rights and interests, and

cannot rest a claim to relief on the legal rights or interests of third-parties.” Powers v. Ohio, 499

U.S. 400, 410 (1991) (citations omitted); Umbrino v. L.A.R.E Partners Network, Inc., 585 F.

Supp. 3d 335, 357 (W.D.N.Y. 2022) (“As a general rule of standing, ‘one person cannot litigate

injuries on behalf of another.’” (quoting Langan v. Johnson & Johnson Consumer Cos., Inc., 897

F.3d 88, 93 (2d Cir. 2018))).4 Moreover, “[a] pro se litigant . . . is not empowered to proceed on

behalf of anyone other than himself.” McCall v. Pataki, 232 F.3d 321, 322 (2d Cir. 2000)

(citations omitted). For these reasons, the plaintiff’s claim on behalf of third-party individuals

and entities must be dismissed.

4 An exception to this general prohibition, the doctrine of third-party standing, allows a plaintiff to “assert

the legal rights of another as a ‘next friend’ when he or she establishes: (1) a close relationship to the

injured party and (2) a barrier to the injured party’s ability to assert its own interests.” Am. Psychiatric

Ass’n v. Anthem Health Plans, Inc., 821 F.3d 352, 358 (2d Cir. 2016) (internal quotation marks and

citation omitted). The plaintiff has not pled any facts in support of these elements.

As-Applied Challenge to New York’s Mental Hygiene Law

The amended complaint asserts an “as-applied” challenge to the Mental Hygiene Law.

(ECF No. 5 ¶ 21.) “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.” Field Day, LLC v. Cnty. of

Suffolk, 463 F.3d 167, 174 (2d Cir. 2006). “The essence of an ‘as applied’ challenge therefore is

a claim that the manner in which a statute or regulation was applied to a plaintiff in particular

circumstances violated the Constitution.” Almengor v. Schmidt, 692 F. Supp. 2d 396, 397

(S.D.N.Y. 2010), aff’d sub nom. Schain v. Schmidt, 396 F. App’x 713 (2d Cir. 2010).

The plaintiff argues that the New York Mental Hygiene Law was enforced against him in

violation of the Constitution because former U.S. presidents appeared at his civil commitment

hearing and intervened in his case. (ECF No. 5 ¶ 21.) As I held in the plaintiff’s other action in

the Eastern District, the plaintiff’s theories are irrational, and must be dismissed as frivolous.

See Moussa v. Obama et al., No. 22-CV-4625, ECF No. 9 (E.D.N.Y. Oct. 24, 2022); Denton v.

Hernandez, 504 U.S. 25, 33 (1992) (“[A] finding of factual frivolousness is appropriate when the

facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are

judicially noticeable facts available to contradict them.”); Livingston v. Adirondack Beverage

Co., 141 F.3d 434, 437 (2d Cir. 1998) (internal quotation marks omitted) (An action is frivolous

when “the factual contentions are clearly baseless, such as when allegations are the product of

delusion or fantasy.”).

CONCLUSION

For these reasons, the action is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). The

Court finds that amendment would be futile and denies the plaintiff’s request to submit

additional pleadings. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal

would not be taken in good faith and therefore in forma pauperis status is denied for purpose of

an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

The Clerk of Court is respectfully directed to enter judgment and close this case and to

mail a copy of this order and judgment to the plaintiff.

SO ORDERED.

s/Ann M. Donnelly

___________________________

ANN M. DONNELLY

United States District Judge

Dated: Brooklyn, New York

October 25, 2022