Rene v. Mustafa

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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DIANA RENE,

Plaintiff, MEMORANDUM & ORDER

No. 16-CV-4072(JS)(ST)

-against-

TANZIA MUSTAFA, M.D., personally;

EJIKE ONUOGU, M.D., personally;

TAHIRA N. SIAL, M.D., personally;

BRUNSWICK HOSPITAL CENTER, INC.,

Defendants.

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Appearances:

For Plaintiff: William M. Brooks, Esq., Of Counsel

Barry Seidel and Associates

148-55 Hillside Avenue

Jamaica, New York 11435

For Defendant Gregory J. Radomisli, Esq.

Mustafa: Martin Clearwater & Bell LLP

220 East 42nd Street

New York, New York 10017

For the Amy E. Bedell, Esq.

Hospital Lewis Johs Avallone Aviles, LLP

Defendants: One CA Plaza, Suite 225

Islandia, New York 11749

SEYBERT, District Judge:

Before the Court in this Section 1983 civil rights action

arising out of the detention-for-transport of Plaintiff Diana Rene

(“Plaintiff”) at Stony Brook University Medical Center and her

subsequent involuntary confinement at Brunswick Hospital Center

are two summary judgment motions: one brought by Defendant Tanzia

Mustafa, M.D. (“Mustafa”) (hereafter, the “Mustafa Motion”) (see

ECF No. 1161); and one brought by Defendants Ejike Onuogu, M.D.

(“Onuogu”), Tahira N. Sial, M.D. (“Sial”), and Brunswick Hospital

Center, Inc. (“Brunswick” or “Hospital”; collectively with Onuogu

and Sial, the “Hospital Defendants”) (hereafter, the “Hospital

Motion”) (see ECF No. 1202). For the reasons that follow, the

Mustafa Motion is GRANTED, and the Hospital Motion is GRANTED.

[Remainder of page intentionally left blank.]

1 See also Mustafa Support Memo (hereafter, “M-Support Memo”) (ECF

No. 118), and Reply (hereafter, “M-Reply”) (ECF No. 138).

Plaintiff has filed an omnibus Opposition (hereafter, “Opposition”

or “Opp’n”) to Mustafa’s Motion and the Hospital’s Motion. (See

Opp’n, ECF No. 137.)

2 See also Hospital Support Memo (hereafter, “H-Support Memo”)

(ECF No. 120-1), and Reply (hereafter, “H-Reply”) (ECF No. 139).

As noted, supra at note 1, Plaintiff has filed an omnibus

Opposition to Mustafa’s and the Hospital’s respective Motions.

BACKGROUND

I. Relevant Factual Background3

3 Unless otherwise stated, the factual background is derived from

the parties’ Local Civil Rule 56.1 Statements. Mustafa’s Rule

56.1 Statement (see ECF No. 119) shall be cited as “M-56.1 Stmt.”

Plaintiff’s Counterstatement to Mustafa’s Rule 56.1 Statement (see

ECF No. 125) shall be cited as “P-M 56.1 Counter.” The Hospital’s

Rule 56.1 Statement (see ECF No. 120-24) shall be cited as “H-56.1

Stmt.” Plaintiff’s Counterstatement to the Hospital’s Rule 56.1

Statement (see ECF No. 126) shall be cited as “P-H 56.1 Counter.”

Herein, internal quotation marks and citations from these

Statements have been omitted. A standalone citation to a Rule

56.1 Statement or Counterstatement denotes the Court has

determined the underlying factual allegation is undisputed.

Further, citation to a party’s Rule 56.1 Statement or

Counterstatement incorporates by reference the party’s

citation(s), if any. However, in its discretion, the Court may

cite directly to the underlying exhibit(s).

Mustafa’s exhibits are identified by letters “A” through “U”

(see ECF Nos. 117-1 through 117-22) and are attached to the

Declaration of Gregory J. Radomisli, Esq., a member of the law

firm of record representing Mustafa (see ECF No. 117). To

distinguish Mustafa’s exhibits, the Court will cite them as “Ex.

M-[letter]”.

The Hospital Defendants’ exhibits are also identified by

letters, but from “A” through “Y” (see ECF Nos. 120-3 through 120-

28) and are attached to the Declaration of Amy E. Bedell, Esq., a

partner of the law firm of record representing the Hospital

Defendants (see ECF No. 120-2). To distinguish the Hospital

Defendants’ exhibits, the Court will cite them as “Ex. H-[letter]”.

Further, Plaintiff has identified her exhibits by letter as

well, i.e., letter “A” through “R” (see ECF Nos. 127-1 through

127-25) and are attached to the Declaration of William Brooks, one

of Plaintiff’s attorneys of record (see ECF No. 127). To

distinguish Plaintiff’s exhibits, the Court will cite them as “Ex.

P-[letter]”.

Hereafter and unless otherwise noted, the Court will

reference exhibits by their respective letter designations only.

Relatedly, as to page citation: Where the notation “ECF p.[x]” is

used, the Court cites to the pagination generated by the Court’s

Electronic Case Filing (“ECF”) system; otherwise, page citation is

to the internal pagination of the cited document.

A. Regarding the July 24, 2015 Stony Brook Visit4

In 2015, Plaintiff suffered from parotitis, a gland

disorder that is very painful. (See Third Am. Compl. (“TAC”), ECF

No. 70, Preamble.) Indeed, ‘[a]s of July 3rd or 4th, [she]

believed there was no end in sight for her pain.” (P-M 56.1

Counter. ¶ 20.) By July 24, 2015, Plaintiff had visited

approximately six doctors seeking relief from her symptoms, but to

no avail. (Id. ¶ 21.) Thus, on the morning of July 24, 2015,

suffering substantial facial pain due to her gland disorder, as

well as dizziness and nausea, Plaintiff went to Emergency

Department (“ED”) of Stony Brook University Medical Center (“Stony

Brook”) seeking treatment. (Id. ¶¶ 22-24.) Among other things,

while in the ED, Plaintiff told staff: she did not “know how people

live with such pain in the face”; she was not sleeping; her

appetite was poor and she did not have an appetite for three weeks;

she was not enjoying activities she had previously enjoyed; and,

“she worries nonstop and that she feels depressed because she

worries that her health issues were not resolving.” (Id. ¶¶ 24,

27-28, 30, 33, 35.) She may have also told the ED doctor and/or

staff: she was depressed because treatment for the bad taste in

her mouth had been unsuccessful; she had lost six pounds in a

4 For this subsection, unless otherwise noted, the facts are

derived from Plaintiff’s Rule 56.1 Counterstatement (see ECF No.

125), which incorporates Mustafa’s statements of fact (see ECF No.

119) and include Plaintiff’s responses thereto.

one-week span; she had not slept in the past two weeks; she was

not socializing with friends; she goes straight to bed when she

gets home; and, for the prior three months, she was experiencing

crying episodes. (Id. ¶¶ 25, 29, 31-34, 36.) Moreover, the Stony

Brook ED doctor documented Plaintiff having “[s]tated that she

wants to take her life as a result of [her] symptoms.” (P-H 56.1

Counter. ¶ 41.5)

Thereafter, Plaintiff was transferred to Stony Brook’s

psychiatric emergency room for depression and suicidal ideation.6

(P-M 56.1 Counter. ¶ 38.) Once there, she initially interfaced

with a psychiatric nurse who documented Plaintiff stating: the

quality of her life had gone down and she had lost her zest for

life; she had thoughts of wanting to leave this earth; she did not

want to be a burden to others; she had a history of depression; in

the month prior to her July 2015 hospitalization, she wished to be

dead; and, she felt unsafe. (Id. ¶¶ 39-43, 48.) This nurse

5 While Plaintiff does not deny the Stony Brook ED doctor

“documented that [she] wanted to take her life,” she “denies that

she ever wanted to do so” (P-H Rule 56.1 Counter. ¶ 41 (citing Pl.

Aff. ¶¶ 24-25)), which is not a denial that she actually made that

statement to the ED doctor.

6 The psychiatric emergency room is part of Stony Brook’s

Comprehensive Psychiatric Emergency Program (“CPEP”). See

generally NY Connects: Program SBUH—Comprehensive Psychiatric

Emergency Program (CPEP), available at

https://www.nyconnects.ny.gov/services/sbuh-comprehensive-

psychiatric-emergency-program-cpep-omh-pr-813707155450 (last

visited Mar. 21, 2024); (see also, e.g., Bardey Decl., Ex. H-A at

¶ 1).

completed the Columbia Suicide Severity Scale, documenting:

Plaintiff’s thoughts of wishing to be dead occurred two-to-five

times a week in the prior month; Plaintiff was having thoughts of

dying; Plaintiff’s thoughts of wanting to leave the earth occurred

two-to-five times a week; and, Plaintiff’s rationale for suicide

was to end the pain she was experiencing. (Id. ¶¶ 44-47.) Later,

a supervised social work intern7 reported Plaintiff stating, inter

alia: she had not slept in two weeks; she did not feel like engaging

in activities she used to enjoy; her symptoms started the previous

March; she felt depressed; and, she wanted to leave the earth.

(Id. ¶¶ 49-54.)

Thereafter, a Stony Brook psychiatric resident met with

Plaintiff; in Plaintiff’s chart, he documented Plaintiff

reporting: having thoughts of passive suicidal ideation; feeling

frustrated and depressed because she was experiencing an ongoing

rancid taste in her mouth; not having slept in weeks; not enjoying

life; not feeling like answering her home phone; not wanting to

socialize with friends; isolating herself; upon coming home from

work, going straight to bed, but not being able to sleep; having

bad thoughts about past experiences; experiencing poor sleep for

approximately three months; having a poor appetite and having lost

six pounds in a week; having “crying episodes secondary to hurting

7 (See P-H 56.1 Counter ¶ 86.)

her family”; experiencing helpless and hopeless ideations;

experiencing occasional thoughts of hurting herself; and,

previously having told her primary care provider of thoughts of

jumping off a bridge. (Id. ¶¶ 55-69.) The resident also spoke

with Plaintiff’s husband (“Husband”), who reported that, because

of the inability to determine what was causing the metallic taste

in Plaintiff’s mouth, Plaintiff was anxious, depressed and “down

in the dumps”. (Id. ¶¶ 70-71.) Husband also reported financial

issues were contributing to Plaintiff feeling this way. (Id.

¶ 71.) The resident also documented: his impression that Plaintiff

suffered from “Depression, NOS[8]” (id. ¶ 72); Plaintiff’s “recent

or presenting psychiatric symptoms included severe depression,

anhedonia, mood lability, severe anxiety and difficulty

controlling suicidal thoughts” (id. ¶ 78); Plaintiff had a history

of depression (id. ¶ 79); Plaintiff had a number of protective

factors suggesting a reduced risk of suicide (id. ¶ 80); and,

having weighed Plaintiff’s risk factors and protective factors

8 In a medical diagnosis, “NOS” means “not otherwise specified”.

It “is a subcategory in systems of disease/disorder

classification. It is used to note the presence of a condition

where the symptoms presented indicate a general diagnosis within

a family of disorders (e.g. depressive disorders, anxiety

disorders), but don’t meet criteria established for specific

diagnoses within that family.” Mental Health America: Not

Otherwise Specified, Other Specified Disorder, Or Unspecified

Disorder, available at https://mhanational.org/conditions/not-

otherwise-specified-other-specified-disorder-or-unspecified-

disorder (last visited Mar. 20, 2024).

(id. ¶ 81). Afterwards, as recorded in Plaintiff’s Stony Brook

chart, the resident discussed Plaintiff’s case with Mustafa,

relaying Plaintiff “was a 51 year old married female with quite a

few medical issues ongoing, and that she had presented to the

hospital with chest pain” who was very depressed and met all the

criteria of major depressive episode with suicidal ideation. (Id.

¶¶ 82-83; see also id. at ¶¶ 84-85.) He sought Mustafa’s input

regarding Plaintiff’s case. (Id. ¶ 83.)

Mustafa consulted Plaintiff’s Stony Brook chart and then

went with the resident to evaluate Plaintiff and discuss the

severity of her symptoms; she spent between 30 and 45 minutes with

Plaintiff, at which time Plaintiff was crying. (Id. ¶¶ 88-90,

93.) From her interaction with Plaintiff, Mustafa gathered

Plaintiff “was very depressed, had suicidal thoughts of death, and

posed a danger to herself unless treated.” (Id. ¶ 91.) Even

though Plaintiff denied suicidal ideation at the time, from her

mental status exam, Mustafa found Plaintiff to be

moderately-to-severely depressed. (Id. ¶ 92.) Mustafa also

recorded that Plaintiff’s “ongoing medical problems led to poor

sleep, poor appetite, weight loss, hopelessness, worthlessness and

recent suicidal ideation.” (Id. ¶ 97.) “Based upon the symptoms

as reported in the Stony Brook chart, Mustafa concluded that

[Plaintiff’s] depression had gotten so severe that she was not

able to use her coping skills, that she felt hopeless, worthless

and helpless; she was missing work; and she was not able to have

sex with her husband.” (Id. ¶ 99.)

Later that day, at approximately 8:00 p.m., Mustafa had

a second meeting with Plaintiff, which lasted 15-to-20 minutes.

(Id. ¶¶ 100-01.) At approximately 10:00 p.m., Mustafa had a third

meeting with Plaintiff, which lasted approximately 10 minutes.

(Id. ¶¶ 102-03.) Sometime between 10:30 p.m. and 11:00 p.m.,

Mustafa had a fourth meeting with Plaintiff. (Id. ¶ 104.)

Based upon: (1) having spoken with the nurse, the

supervising social worker, social work intern, and the resident

(id. ¶ 105); (2) having read Plaintiff’s notes from the Stony Brook

ED doctor; (3) her view of Plaintiff’s Stony Brook chart; and (4)

her personal evaluation of Plaintiff, Mustafa concluded Plaintiff

posed a moderate or substantial risk of harm to herself. (Id.

¶¶ 105-07.9) This conclusion was based upon Plaintiff’s: meeting

“all the criteria of a moderate-to-severe depression ongoing for

at least three months”; past history of depression; experiencing

multiple medical issues simultaneously; “relentlessly suffering

and experiencing discomfort and pain”; having verbalized suicidal

thoughts and frustration with her unsuccessful medical treatment;

and, wanting to take her own life. (Id. ¶ 109.) Mustafa’s

9 (See also id. ¶ 124 (undisputed that a hospital physician may

rely upon information gathered by other hospital personnel, in

conjunction with their own assessment, in authorizing a MHL § 9.37

transport).)

determination was an exercise of her medical judgment, reached

after Mustafa met with Plaintiff and weighed Plaintiff’s risk

factors and mitigating factors, and was the basis for her

authorizing Plaintiff’s transport to Brunswick pursuant to N.Y.S.

Mental Hygiene Law (“MHL”) § 9.37. (Id. ¶¶ 110-11, 117-19; see

also P-H 56.1 Counter. ¶ 115.)

B. Regarding the Brunswick Commitment and Hospitalization10

On July 25, 2015, Brunswick accepted the transfer of

Plaintiff from Stony Brook’s CPEP, which transfer was made pursuant

to Mustafa’s MHL § 9.37 certification. (P-H 56.1 Counter.

¶¶ 122-23.) “When Plaintiff presented to [Brunswick], she felt

defeated and her anxiety level was high.” (Id. ¶ 124.) As a

transferee, Plaintiff’s documentation from Stony Brook was subject

to review. (Id. ¶ 128.) Further, a registered nurse “interviewed

and assessed Plaintiff before she underwent a psychiatric

consultation performed by a psychiatrist.” (Id. ¶ 131.)

Thereafter, Onuogu conducted a psychiatric consultation

of Plaintiff which consisted of a face-to-face evaluation and his

review of the documents sent by Stony Brook’s CPEP, with the face-

to-face evaluation occurring before his review of the Stony Brook

10 For this subsection, unless otherwise noted, the facts are

derived from Plaintiff’s Rule 56.1 Counterstatement (see ECF No.

126), which incorporates the Hospital Defendants’ statements of

fact (see ECF No. 120-24) and includes Plaintiff’s responses

thereto.

documents. (Id. ¶¶ 137, 139.) The face-to-face evaluation lasted

from approximately 11:00 p.m. until 11:50 p.m. (Id. ¶¶ 140, 155.)

During the evaluation, “Onuogu asked Plaintiff a ‘barrage of

questions’ but she was ‘in shock,’ and the only questions she could

recall were: why did she go to Stony Brook; did she feel like

hurting herself; and was she depressed.” (Id. ¶ 143.) Onuogu

recorded Plaintiff’s responses to his questions, noting, inter

alia, Plaintiff: had a depressed mood since her gland surgery two

weeks earlier; had not been able to sleep; was feeling helpless;

was having suicidal ideation, but without specific plans; had

experienced numerous loses of family members; was experiencing

menopause; and, was not sexually active. (Id. ¶ 145.) His

evaluation notes further state Plaintiff: had recently verbalized

thoughts of self-harm; posed a current risk to herself; presented

with: soft, low volume speech, a depressed mood, a blunted affect,

and suicidality, with suicidal ideation (no plan); and, had limited

insight and judgment. (Id. ¶¶ 146, 148, 149.) After completion

of his face-to-face evaluation and review of Plaintiff’s Stony

Brook CPEP chart, Onuogu assessed Plaintiff as having major

depressive disorder, which determination was based upon

Plaintiff’s: “more than two week history of depression;

neurovegetative symptoms; significant weight loss/appetite

disturbance; lack of sleep; psychomotoretardation [sic]; feelings

of helplessness and hopelessness; sexual disturbance; still

feeling that past losses weighing heavily upon her; suicidal

ideation (during their face-to-face evaluation, at [Stony Brook],

and to her primary care provider); and downward trend in overall

functioning.” (Id. ¶¶ 150-51.) Having completed his face-to-face

evaluation of Plaintiff, reviewed Plaintiff’s Stony Brook CPEP

chart, and weighed Plaintiff’s risk and mitigating factors,

“Onuogu determined that [Plaintiff] posed a substantial risk of

danger to herself because she was suicidal.” (Id. ¶ 131.) Thus,

he involuntarily admitted Plaintiff to Brunswick for a 72-hour

observation period pursuant to MHL § 9.37. (Id. ¶ 156; see also

id. ¶¶ 158-62.)

The next day, July 26, 2015, Hospital staff documented

Plaintiff appearing depressed, anxious, and guarded. (Id. ¶ 165;

see also id. ¶ 182.) Sial, Plaintiff’s treating psychiatrist

during her Hospital admission, evaluated Plaintiff on July 26th.

(Id. ¶¶ 167-68.) From this first evaluation, which lasted 25-to-

30 minutes, Sial documented, inter alia, Plaintiff: “had no prior

significant psychiatric history, no prior psychiatric admission,

no prior suicide attempt”; “had been admitted for worsening

depression, anxiety, hopelessness, helplessness, decreased sleep,

and vague suicidal ideation”, with Plaintiff having directly told

Sial about being unable to sleep and feeling helpless, hopeless

and depressed; “had multiple medical issues [and] multiple somatic

symptoms”; had recent parotid gland surgery for sialadenitis after

antibiotics and a tapering dose of steroids in May and June”. (Id.

¶¶ 169-70, 172.) As a result of this examination, Sial made the

following mental status findings regarding Plaintiff:

mood described as depressed; appearance sad,

anxious, and nervous; affect flat,

constricted, and emotionless; internally

perplexed/preoccupied (preoccupied with own

thoughts/issues but not able to verbalize

same), disassociated, and disconnected;

denied suicidal ideation, but then stated that

she still had vague suicidal ideation but no

plan at that time; irritable (easily annoyed

by questions).

(Id. ¶ 171.) Thereafter, Sial diagnosed Plaintiff with “major

depressive disorder, severe” and assigned her a Global Assessment

of Functioning (“GAF”) score of 30.11

Sial testified: her July 26th determination was based

upon Plaintiff’s presentment and statements made to Sial during

Sial’s evaluation (id. ¶¶ 174-77); Plaintiff’s Stony Brook CPEP

records corroborated her assessment (id. ¶ 177); “Plaintiff’s

symptoms caused her significant distress or impairment in social

functioning (internally preoccupied, in her own world,

disassociated, not interacting much, answers were very vague and

11 “A GAF score is a 0-100 scale mental health clinicians use to

evaluate how well a person can function in society. A GAF score

of 91-100 is normal, while lower scores indicate psychosocial

problems that make life difficult for the person under evaluation.”

John P. Cunha, DO, FACOEP, What is a Normal GAF Score?, eMental

Health,

https://www.emedicinehealth.com/what is a normal gaf score/artic

le em.htm (last visited Mar. 25, 2024).

not forthcoming, seemed like she did not want to talk, she did not

interact with her family or engage in her usual activities),

occupational functioning (suspected she was working without

interest), and other important areas of functioning (daily

life-not interacting with family, not watching television or

movies, not playing games)” (id. ¶ 178); after weighing Plaintiff’s

risk and mitigating factors, determining “Plaintiff posed a

substantial risk of danger to herself because she was suicidal and

she was unable to meet her needs of food clothing, and shelter”

(id. ¶ 179); because of her concerns for Plaintiff, i.e., that she

“would kill herself or suffer a mental breakdown”, treating

Plaintiff “aggressively with three medications” (id. ¶ 181).

Sial re-evaluated Plaintiff on July 27, 2015, which

included an approximate 10-to-15 minute face-to-face interaction

with Plaintiff. (Id. ¶¶ 183, 185) She continued to find

Plaintiff’s affect to be “anxious, sad, disassociated, and

perplexed”. (Id. ¶ 184.) Additionally, Sial found Plaintiff was

“masking and minimizing her symptoms” and was “frustrated,

tearful, and pre-occupied”, as well as “denied suicidal thoughts”.

(Id.) Thus, based upon Plaintiff’s presentment on July 27th, in

her clinical judgment, Sial determined: (1) Plaintiff had major

depressive disorder, and (2) having considered all relevant

mitigating factors, Plaintiff was, nonetheless, a danger to

herself as she was suicidal. (Id. ¶¶ 186-90.)

Thereafter, with the benefit of her July 26th and 27th

evaluations, as well as input from Hospital staff, Onuogu’s

admissions notes, and the Stony Brook CPEP records, Sial completed

an Examination Within 72 Hours form (hereafter, the “72-Hour Form”)

regarding Plaintiff and certified Plaintiff for continued

involuntary care at Brunswick pursuant to MHL § 9.37. (Id.

¶¶ 192-93, 195.) In Plaintiff’s 72-Hour Form, Sial included:

Plaintiff’s pertinent/significant history was

depression, hopelessness, and helplessness;

her mental condition was depressed, guarded,

tearful, and vague suicidal thoughts; her

psychiatric signs and symptoms were

preoccupied, sad, and anxious; Plaintiff

showed a tendency to hurt herself because she

was suicidal; and her diagnosis was major

depressive disorder.

(Id. ¶ 194.) In said Form, Sial certified, inter alia, her

personal examination of Plaintiff was made “with care and

diligence” and that, as a result of said examination, Sial

determined “Plaintiff posed a substantial threat of harm to

[her]self.” (Id. ¶ 196.)

On July 28, 2015, Sial re-evaluated Plaintiff in-person,

at which time the Doctor found Plaintiff continued to be anxious,

sad, tearful, and disassociated and during which Plaintiff

admitted feeling sad, helpless, and hopeless, and experiencing

decreased sleep. (Id. ¶¶ 199-200.) Sial also scheduled a July

29, 2015 family meeting with Plaintiff’s family members, which she

did only in high risk cases. (Id. ¶¶ 200, 203.)

On July 29, 2015, before the meeting with Plaintiff’s

family, Sial: again evaluated Plaintiff, at which time she found

Plaintiff to be “sad, constricted, and perplexed”, as well as

having a disassociated affect (id. ¶¶ 205-06); and, found

“Plaintiff still posed a risk of suicide, but that it was less

than when [Plaintiff] first presented to [Brunswick]” (id. ¶ 207).

At the family meeting, which was held to enable Sial to assess the

support level of Plaintiff’s family and to educate the family about

Plaintiff’s depression, a July 30, 2015 discharge plan was

established, with Plaintiff’s family agreeing to same. (Id.

¶¶ 208-10, 212.)

On July 30, 2015, before Plaintiff’s discharge, a

Brunswick social worker documented Plaintiff was less depressed

and was sleeping better. (Id. ¶214.) Also before her July 30th

discharge, Sial conducted an in-person re-evaluation of Plaintiff;

Sial documented that while Plaintiff was calm and had an improved

mood, she “still had a sad affect; her affect was constricted; she

was disassociated”, but “she denied suicidal thoughts or plan”.

(Id. ¶¶ 215-16.) Sial’s July 30th discharge diagnosis of Plaintiff

was severe major depressive disorder; however, having weighed

Plaintiff’s risk and mitigating factors on that day, Sial

determined Plaintiff did not pose a substantial threat of harm to

herself. (Id. ¶¶ 217-18.) Further, at the time of her discharge,

Sial determined Plaintiff’s GAF score had increased to 60. (Id.

¶ 219.) In conformity with the July 29th discharge plan, On July

30, 2015, Plaintiff was discharged from Brunswick. (Id. ¶ 220.)

In accordance with her discharge plan, thereafter,

Plaintiff engaged in psychiatric treatment. (Id. ¶ 221; see also

id. at ¶¶ 222-25.) Her treating psychiatrist diagnosed Plaintiff

with major depressive disorder and generalized anxiety disorder.

(Id. ¶ 226.)

II. Relevant Procedural Background

Plaintiff commenced this action on July 22, 2016. (See

Compl., ECF No. 1.) After: (1) three amendments to Plaintiff’s

Complaint (see, e.g., First Am. Compl., ECF No. 15; Second Am.

Compl., ECF No. 34; TAC); (2) multiple extensions to the discovery

deadlines (see Case Docket, passim); (3) two settlements, i.e.,

(a) a settlement with defendant Franoeur (“Franoeur”) and third-

party defendant Bells Nurses Registry & Employment Agency, Inc.,

(“Bells Nurses”) resulting in their purported dismissal from this

action (see, e.g., ECF No. 80, and AYS Feb. 25, 2019 Elec. Order),

and (b) a further settlement whereby Plaintiff agreed to withdraw

certain causes of action, to wit, Plaintiff’s (i) Second and Third

Causes of Action against Francoeur and the Hospital, (ii)

Fourteenth Cause of Action against Francoeur and the Hospital, and

(iii) Fifteenth Cause of Action against the Hospital; (4)

Plaintiff’s voluntary withdrawal of her Eighth Cause of Action as

against the Hospital (see PMC Response, ECF No. 105, at 3); (5)

several reassignments of judges and magistrate judges presiding

over this action; and (6) prior presiding Judge Gary R. Brown’s

having granted Plaintiff’s reconsideration motion which ostensibly

vacated his prior partial granting of summary judgement in favor

of Mustafa (see Reconsideration Order, ECF No. 113; Minute Entry,

ECF No. 108 (at pre-motion conference, deeming summary judgment

motion made and granting in part said motion as to Mustafa)), the

respective Summary Judgment Motions of Mustafa and the Hospital

Defendants are ripe for consideration.12

12 For clarity, the Court deems:

(a) Francoeur and Bells Nurses to be dismissed from this

action in light of (i) said defendants’ February 25, 2019 letter

motion (ECF No. 80), which Magistrate Judge Shields granted, (ii)

the filed Stipulation of Settlement (ECF No. 87) regarding claims

against Francoeur having been withdrawn by Plaintiff (ECF No. 87);

and (iii) Plaintiff’s subsequent course of conduct in this action,

i.e., no longer pursuing her action against Francoeur and Bells

Nurses;

(b) the Stipulation of Settlement (ECF No. 87) “SO ORDERED”;

therefore, Plaintiff’s Second, Third, Fourteenth, and Fifteenth

causes of actions are withdrawn and discontinued with prejudice;

and

(c) the summary judgment in favor of Mustafa, granted on March

25, 2020 (see Minute Entry, ECF No. 108), to have been vacated by

Judge Brown on June 15, 2020 (see Reconsideration Order, ECF No.

113), thereby resulting in all causes of action against Mustafa to

be currently pending (see June 19, 2020 Letter, ECF No. 115

(remaining parties’ proposed briefing schedule); JS June 22, 2020

Elec. Sch. Order (adopting proposed briefing schedule)).

DISCUSSION

I. Applicable Law

A. The Rule 56 Standard Generally

The standard for deciding a Rule 56 summary judgment

motion is well-established. For convenience, the Court reiterates

said standard:

Pursuant to Rule 56(a), “[a] court shall

grant summary judgment if the movant shows

that there is no genuine dispute as to any

material fact and the movant is entitled to

judgment as a matter of law.” FED. R. CIV. P.

56(a). “A fact is ‘material’ for these

purposes when it might affect the outcome of

the suit under the governing law.” Adamson v.

Miller, 808 F. App’x 14, 16 (2d Cir. 2020).

Additionally, “‘[a]n issue of fact is

‘genuine’ if the evidence is such that a

reasonable jury could return a verdict for the

nonmoving party.’” Id. (quoting Jeffreys v.

City of N.Y., 426 F.3d 549, 553 (2d Cir.

2005)). “If, as to the issue on which summary

judgment is sought, there is any evidence in

the record from which a reasonable inference

could be drawn in favor of the opposing party,

summary judgment is improper.” Hetchkop v.

Woodlawn at Grassmere, Inc., 116 F.3d 28, 33

(2d Cir. 1997). Moreover, “the court is not

to make assessments of the credibility of

witnesses” on a motion for summary judgment,

as “[c]redibility assessments, choices

between conflicting versions of events, and

weighing of the evidence are matters for the

jury.” Id.

On a motion for summary judgment the

court considers “the pleadings, depositions,

answers to interrogatories and admissions on

file, together with any other firsthand

information including but not limited to

affidavits.” Nnebe v. Daus, 644 F.3d 147, 156

(2d Cir. 2011). Further, while the court “may

consider other materials in the record,” it

“need consider only the cited materials” in

ruling on a summary judgment motion. FED. R.

CIV. P. 56(c)(3); see also Pennington v.

D’Ippolito, 855 F. App’x 779, 782 (2d Cir.

2021) (“[I]n ruling on a summary judgment

motion the court need consider only the cited

materials in the parties’ submissions.”

(internal citations and alterations

omitted)).

In reviewing the record, “the court is

required to resolve all ambiguities and draw

all permissible factual inferences in favor of

the party against whom summary judgment is

sought.” Sheet Metal Workers’ Nat’l Pension

Fund v. Vardaris Tech. Inc., No. 13-CV-5286,

2015 WL 6449420, at *2 (E.D.N.Y. Oct. 23,

2015) (quoting McLee v. Chrysler Corp., 109

F.3d 130, 134 (2d Cir. 1997)). When drawing

inferences from evidence in the record in

favor of the non-moving party, however, a

court should not accord the non-moving party

the benefit of “unreasonable inferences, or

inferences at war with undisputed facts.”

Berk v. St. Vincent’s Hosp. & Med. Ctr., 380

F. Supp. 2d 334, 342 (S.D.N.Y. 2005) (quoting

County of Suffolk v. Long Island Lighting Co.,

907 F.2d 1295, 1318 (2d Cir. 1990)).

“Once the movant has ‘demonstrat[ed] the

absence of a genuine issue of material

fact . . . the onus shifts to the party

resisting summary judgment to present evidence

sufficient to satisfy every element of the

claim.’” Pennington, 855 F. App’x at 781

(alteration in original) (quoting Holcomb v.

Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008)).

To do this, “[t]he non-moving party is

required to ‘go beyond the pleadings’ and

‘designate specific facts showing that there

is a genuine issue for trial.’” Id.

Lavender v. Verizon N.Y. Inc., No 17-CV-6687, 2023 WL 1863245, at

*8 (E.D.N.Y. Feb. 9, 2023); see also Butler v. County of Suffolk,

No. 11-CV-2602, 2023 WL 5096218, at *18-20 (E.D.N.Y. Aug. 8, 2023)

(similarly articulating summary judgment standard; additionally

discussing consideration of: Local Rule 56.1 statements;

admissibility of expert reports; and affidavits).

B. Consideration of Affidavits

in Support of Summary Judgment

“It is well settled in this circuit that

a party’s affidavit which contradicts his own

prior deposition testimony should be

disregarded on a motion for summary judgment.”

Colvin v. Keen, No. 13-cv-3595, 2016 WL

5408117, at *3 (E.D.N.Y. Sept. 28, 2016).

Indeed,

a party may not create an issue of

fact by submitting an affidavit in

opposition to a summary judgment

motion that, by omission or

addition, contradicts the affiant’s

previous deposition testimony.

Perma Research & Dev. Co. v. Singer

Co., 410 F.2d 572, 578 (2d Cir.

1969) (examining omission in four-

day deposition); Martin v. City of

New York, 627 F. Supp. 892, 896

(E.D.N.Y. 1985) (examining direct

contradiction between deposition

and affidavit). “If a party who has

been examined at length on

deposition could raise an issue of

fact simply by submitting an

affidavit contradicting his own

prior testimony, this would greatly

diminish the utility of summary

judgment as a procedure for

screening out sham issues of fact.”

Perma, 410 F.2d at 578. Thus,

factual issues created solely by an

affidavit crafted to oppose a

summary judgment motion are not

“genuine” issues for trial. Id.

Hayes v. N.Y.C. Dep’t of Corrs., 84 F.3d 614,

619 (2d Cir. 1996); see also In re Fosamax

Prods. Liab. Litig., 707 F.3d 189, 193 (2d

Cir. 2013) (holding that a party is prohibited

“from defeating summary judgment simply by

submitting an affidavit that contradicts the

party’s previous sworn testimony”); Brown v.

Henderson, 257 F.3d 246, 252 (2d Cir. 2001)

(“[F]actual allegations that might otherwise

defeat a motion for summary judgment will not

be permitted to do so when they are made for

the first time in the plaintiff’s affidavit

opposing summary judgment and that affidavit

contradicts her own prior deposition

testimony.”); Cleveland v. Policy Mgmt. Sys.

Corp., 526 U.S. 795, 806 (1999) (“[A] party

cannot create a genuine issue of fact

sufficient to survive summary judgment simply

by contradicting his or her own previous sworn

statement . . . without explaining the

contradiction or attempting to resolve the

disparity.”); Buttry v. Gen. Signal Corp., 68

F.3d 1488, 1493 (2d Cir. 1995) (“[I]t is well

settled in this circuit that a party’s

affidavit which contradicts his own prior

deposition testimony should be disregarded on

a motion for summary judgment.” (quotations

and citation omitted)); Pierre v. Hilton Rose

Hall Resort & Spa, No. 14-cv-3790, 2016 WL

4742281, at *10 (E.D.N.Y. Sept. 12, 2016)

(finding plaintiff unable to produce competent

evidence to defeat defendant’s summary

judgment motion where plaintiff’s affidavit

contradicted his deposition testimony);

Ciliberti v. Int’l Bhd. of Elec. Workers Local

3, No. 08-cv-4262, 2012 WL 2861003, at *11

(E.D.N.Y. July 10, 2012) (rejecting

plaintiff’s attempt to create disputed issues

of fact via affidavit, when his prior

deposition testimony foreclosed any such

disputes); Jeffrey v. Montefiore Med. Ctr.,

No. 11-cv-6400, 2013 WL 5434635, at *15

(S.D.N.Y. Sept. 27, 2013) (finding, where

inconsistencies existed between a non-

movant’s affidavit and corresponding

deposition testimony, which inconsistencies

the non-movant party made no effort to

reconcile or otherwise explain, the court did

not consider those statements) (collecting

cases).

Haxton v. PL Smithtown, LLC, No. 17-CV-3979, 2020 WL 1244849, at

*7 (E.D.N.Y. Mar. 16, 2020). “Where inconsistencies exist between

a non-movant’s affidavit and corresponding deposition testimony,

which inconsistencies the non-movant party makes no effort to

reconcile or otherwise explain, a court may disregard those

statements.” Patacca v. CSC Holdings, LLC, No. 16-CV-0679, 2019

WL 1676001, *6 (E.D.N.Y. Apr. 17, 2019) (citing Jeffrey, 2013 WL

5434637, at *15 (collecting cases)).

C. MHL § 9.37

“Cognizant of the gravity of such an event, New York law

establishes detailed procedures for hospitalizing an individual

against his or her will. One such procedure [is] codified in New

York Mental Hygiene Law (“MHL”) § 9.37,” which, under certain

circumstances, permits the hospitalization of persons with a

mental illness. Jackson v. Barden, No. 12-CV-1069, 2018 WL 340014,

at *1 (S.D.N.Y. Jan. 8, 2018). In relevant part, § 9.37 provides:

The director of a hospital, upon application

by a director of community services or an

examining physician duly designated by him or

her, may receive and care for in such hospital

as a patient any person who, in the opinion of

the director of community services or the

director’s designee, has a mental illness for

which immediate inpatient care and treatment

in a hospital is appropriate and which is

likely to result in serious harm to himself or

herself or others.

The need for immediate hospitalization shall

be confirmed by a staff physician of the

hospital prior to admission. Within

seventy-two hours, excluding Sunday and

holidays, after such admission, if such

patient is to be retained for care and

treatment beyond such time and he or she does

not agree to remain in such hospital as a

voluntary patient, the certificate of another

examining physician who is a member of the

psychiatric staff of the hospital that the

patient is in need of involuntary care and

treatment shall be filed with the hospital.

From the time of his or her admission under

this section the retention of such patient for

care and treatment shall be subject to the

provisions for notice, hearing, review, and

judicial approval of continued retention or

transfer and continued retention provided by

this article for the admission and retention

of involuntary patients, provided that, for

the purposes of such provisions, the date of

admission of the patient shall be deemed to be

the date when the patient was first received

in the hospital under this section.

MHL § 9.37(a).

II. Application

A. Preliminary Ruling

As an initial matter, Plaintiff asks the Court to rely

upon her post-deposition affidavit (“Pl.’s Aff.”) (see ECF No.

129), in finding there are material disputed facts regarding her

detention-for-transport and confinement which thwarts the granting

of summary judgment. (See Opp’n at 15-16.) To support this

position, Plaintiff relies upon Rodriguez v. City of New York for

the proposition that where, by way of affidavit, a plaintiff

challenges the accuracy or completeness of doctors’ notes made in

hospital records, such “denials creat[e] issues of fact as to what

the plaintiff-patient told the doctor.” (Id. at 16 (quoting

Rodriguez v. City of N.Y., 72 F.3d 1051, 1055 (2d Cir. 1995); and

citing id. at 1064-65).) Plaintiff then proceeds to articulate

various information she contends is false, inaccurate, or lacks

credibility. (See id. at 16-18.) Plaintiff also advances the

argument that she is a more credible witness than the medical

personnel who interviewed her in late July 2015 at Stony Brook and

at Brunswick; she relies upon affidavits from her husband, best

friend, and boss to support this contention. (See id. at 18-20.)

The Court rejects Plaintiff’s reliance upon her

Affidavit (see ECF No. 129) to establish disputed facts, which the

Court finds to be inconsistent with her prior deposition testimony

and which inconsistencies Plaintiff fails to adequately reconcile

or otherwise explain. See Patacca, 2019 WL 1676001, *6. Indeed,

it is well-established in this Circuit that a court need not rely

upon such a “sham affidavit”. See Moll v. Telesector Res. Grp.,

Inc., 760 F.3d 198, 205 (2d Cir. 2014) (“The ‘sham issue of fact’

doctrine prohibits a party from defeating summary judgment simply

by submitting an affidavit that contradicts the party’s previous

sworn testimony.” (emphasis omitted)); Prophete-Camille v.

Stericycle, Inc., No. 14-CV-7268, 2017 WL 570769, at *5 (E.D.N.Y.

Feb. 13, 2017) (“The Second Circuit has held that a party cannot

manufacture issues of fact by submitting an affidavit that

contradicts her prior deposition testimony.” (citation and

internal quotation marks omitted)). Plaintiff’s time to explain

what she meant by her responses to various Stony Brook and Hospital

personnel evaluators, including Mustafa and the Hospital Doctors,

was during her deposition when those issues were being explored.

See Patacca, 2019 WL 1676001, *14 (“A ‘plaintiff may not create

material issues of fact by submitting affidavits that dispute their

own prior testimony’ regarding issues which have been thoroughly

or clearly explored.” (quoting In re World Trade Ctr. Lower

Manhattan Disaster Site Litig., 758 F.3d 202, 213 (2d Cir. 2014);

further citation omitted)). Her attempts to provide such

explanations via her post-deposition affidavit is unavailing to

create disputed issues of fact which would defeat summary judgment.

See Vuona v. Merrill Lynch & Co., Inc., 919 F. Supp. 2d 359, 391

(S.D.N.Y. 2013) (finding that, where deponent had opportunity to

address relevant issue during deposition, later declaration

testimony directly contradicting deposition testimony would not be

considered in opposing summary judgment). Further, many of

Plaintiff’s statements in her Affidavit are little more than

speculation.13 Moreover, other of Plaintiff’s statements do not

13 (See, e.g., Pl. Aff. ¶¶ 21 (“Because of the pain and discomfort

following surgery, I may not have wanted to go out socially

immediately following the surgery [or] may not have wanted to

answer the phone . . . .”), 25 (“I believe this statement most

likely came from the emergency department doctor asking whether I

had thoughts of hurting myself or killing myself.”), 29 (“Perhaps

[Nurse] Fining interpreted my statements as indicating that the

quality of my life had recently gone down.”), 31 (“I may have said,

address material facts going towards her causes of action.

Therefore, Plaintiff’s post-deposition Affidavit will not be

considered by the Court. In turn, to the extent Plaintiff relies

upon her Affidavit to dispute the Defendants’ respective Local

Rule 56.1 statements of fact, such reliance is unavailing, with

the Court deeming such facts to be undisputed.

B. Mustafa’s Summary Judgment Motion

Plaintiff brings two federal causes of action against

Mustafa: (1) the First Cause of Action, brought pursuant to

Section 1983, alleging violations of the Fourth and Fourteenth

Amendments premised upon the alleged violation of MHL § 9.37; and

(2) the Fifth Cause of Action, alleging a Section 1983 violation

based upon Mustafa’s purported departure from accepted

professional standards when Mustafa determined Plaintiff should be

‘I do not like being a burden to my family.’ By this I meant that

I did not like that my husband often had to take me to doctor

appointments. It was a little unfair to him.”), 38 (“If I said I

was not sleeping for two weeks, it was a statement not to be taken

literally. Rather, I meant, I had difficulty sleeping the last

two weeks.”), 44 (“It is doubtful I would have said I was

depressed, although I found my medical condition depressing.”), 52

(“When Dr. Kadiyala went to take what he wrote down on pad and

place it in the computer-generated form, he may have jumbled all

of this information together, including confusing my situation

with that of the patient named Lisa.”), 59 (“[W]hile I do not

remember every bit of conversation with Dr. Mustafa, I would have

never said I felt hopeless, worthless or helpless.”), 75 (in

disavowing information contained in Onuogu’s notes, stating “Dr.

Onuogu had to receive this information from the papers he was

looking at and copying from when I entered the room”), 91 (“I

believe Dr. Rosen slightly misinterpreted what I said.”).)

detained-for-transport. Plaintiff further brings several state

law claims against Mustafa: (3) two claims alleging false

imprisonment, i.e., the Ninth and Tenth Causes of Action; and (4)

two medical malpractice claims, i.e., the Twelfth and Thirteenth

Causes of Action.

Mustafa moves for summary judgment requesting judgment

in her favor as to all claims brought against her.

1. The Parties’ Positions

a. Mustafa’s Position

Regarding First Cause of Action: Relying upon a 2019

case from the Eastern District of New York, Aouatif v. City of New

York, Mustafa argues that, as the doctor who determined Plaintiff

should be transported from Stony Brook to Brunswick and not the

doctor who determined Plaintiff should be committed, there is no

basis to bring a Fourteenth Amendment claim against her.

(M-Support Memo at 6-7 (citing Aouatif v. City of N.Y., No

07-CV-1302, 2019 WL 2410450 (E.D.N.Y. May 31, 2019)).) Mustafa

also draws the Court’s attention to Green v. City of New York, a

Second Circuit case holding that when the conduct at issue is the

patient’s transportation to a hospital to undergo treatment--and,

not commitment to the hospital--, no Fourteenth Amendment due

process violation is had. (See id. at 6 (citing Green v. City of

N.Y., 465 F.3d 65, 95 (2d Cir. 2006)).)

Alternatively, Mustafa seeks qualified immunity. (See

M-Support Memo at 8-16.) She generally argues qualified immunity

is warranted because, given the circumstances presented when

Mustafa examined Plaintiff, it was objectively reasonable for her

to believe Plaintiff posed a threat to herself, thereby authorizing

her transfer to Brunswick. (See id. at 8-10.) Mustafa’s expert

confirms that Mustafa’s actions were, at the very least,

objectively reasonable (see id. at 12-13), and Plaintiff’s expert

concedes a doctor acting in the manner Mustafa did when making her

determination regarding Plaintiff would be considered acting in an

objectively reasonable manner. (See id. at 13-14.) Finally,

Mustafa would have the Court reject Plaintiff’s argument that

Mustafa did not act reasonably based upon Plaintiff’s deposition

testimony denying making many suicidal ideation statements

attributed to her by the Stony Brook staff since, under case law,

such “bare denials of statements allegedly made by patients under

such circumstances [are not] enough to defeat summary judgment.”

(Id. at 15-16 (quoting Aouatif, 2019 WL 2410450, at *8 (further

citation omitted; internal quotation marks omitted)).) Indeed,

Mustafa contends, “[g]iven the notations in the Stony Brook chart,

[she] would have acted unreasonably if she had not authorized the

[P]laintiff be transported to Brunswick Hospital.” (Id. at 16

(emphasis in original); see also M-Reply at 7 (quoting Torcivia v.

Suffolk County, 409 F. Supp. 3d 19, 48 (E.D.N.Y. 2019)).)

Regarding Fifth Cause of Action: Mustafa asks the Court

to dismiss this cause of action because Plaintiff bases her claimed

Section 1983 violation on Mustafa’s alleged departure from

accepted medical practices, which is neither a federal statutory

nor constitutional right. (See M-Support Memo at 7-8.) Thus,

there is no federal right to be vindicated pursuant to Section

1983. (See id. at 7 (citing Jackson, 2018 WL 340014, at *13).)

Moreover, to the extent Plaintiff bases this cause of action on

the time she remained at Stony Brook before being transported to

Brunswick, Mustafa contends this cause of action is duplicative of

Plaintiff’s First Cause of Action, thereby warranting its

dismissal. (See M-Reply at 8.)

Regarding Ninth and Tenth Causes of Action: Mustafa

contends Plaintiff cannot succeed on her state law false

imprisonment claims because even if Plaintiff is able to establish

confinement that Mustafa intended and to which Plaintiff was

conscious but did not consent, Mustafa can show her actions were

“otherwise privileged” since she complied with the applicable MHL

and did not commit malpractice. (See M-Support Memo at 16-17

(omitting citations).) Moreover, because Mustafa’s actions were

objectively reasonable, she should be immune under both federal

and state law. (See id. at 18 (citing Mesa v. City of N.Y., No.

09-CV-10464, 2013 WL 31002, at * 12 (S.D.N.Y. Jan. 3, 2013)

(stating “where an officer’s actions are deemed objectively

reasonable, that officer will be immune under both federal and

state law”); further citation omitted); see also id. at 19

(discussing further cases where courts found defendants immune

from false imprisonment state claims based upon similar immunity

to false imprisonment federal claims); M-Reply at 9.) Thus,

Mustafa is able to defend against Plaintiff’s false imprisonment

claims warranting summary judgment in her favor.

Regarding Twelfth and Thirteenth Causes of Action:

Mustafa asserts Plaintiff’s medical malpractice claims should be

dismissed if the Court finds she is entitled to qualified immunity

as to Plaintiff’s Section 1983 claims. That is so because the

“objectively reasonable” prong of qualified immunity is the

equivalent of a reasonable medical judgment. Mustafa argues “[a]

determination made pursuant to Article 9 of the Mental Hygiene Law

. . . constitutes a medical judgment,” and her “decision to

authorize the [P]laintiff to be transported to Brunswick Hospital

was based on her medical judgment.” (M-Support Memo at 21.)

Moreover, “Plaintiff’s expert[14] concedes that a doctor could

reasonably conclude that [P]laintiff had recurrent thoughts of

death and recurrent thoughts of suicidal ideation.” (Id. at 22

(citing Stastny Dep. Tr., Ex. Q., at 100-01).) In light of these

and other concessions, therefore, it is undisputed Mustafa

14 Plaintiff’s medical expert is Peter Stastny, M.D. (“Stastny”),

a board certified psychiatry. (See Stastny Decl., ECF No. 128.)

exercised appropriate medical judgment. Further, without more, it

is not enough to establish psychiatric malpractice simply because

another doctor might have pursued a different course of treatment.

(See id. at 23 (citation omitted); see also id. (similarly

asserting purported erroneous judgment is not the same as plain

incompetence).) Additionally, because New York common law

recognizes the doctrine of government immunity, since Mustafa’s

duties involved “the exercise of . . . . discretion and judgment”

in deciding to have Plaintiff transported to the Hospital, Mustafa

should be relieved from liability for any injurious consequences

of her determination regarding Plaintiff. (See id. at 24 (first

quoting Mon v. City of N.Y., 78 N.Y.2d 309, 313 (1991); then

quoting Sean M. v. City of N.Y., 20 A.D.3d 146, 158 (1st Dep’t

2005) (further citation omitted)); see also M-Reply at 10.) Hence,

in this instance, because her medical judgment was reasonable and

because her acts were discretionary, involving the exercise of her

expert judgment, Mustafa should be found immune from Plaintiff’s

medical malpractice causes of action.

b. Plaintiff’s Counter-Position

Regarding First Cause of Action: The crux of Plaintiff’s

opposition regarding her First Cause of Action is that it “is

premised on her detainment for transport and not confinement.”

(Opp’n at 23 (citing Radomisli Decl., Ex P-H, ¶ 72).) She relies

upon Glass v. Mayas in furtherance of her claim that one “who has

been detained for transport to, and further evaluation at, a

psychiatric [hospital for] evaluation without probable cause”

suffers a violation of her Fourth Amendment rights. (Id. (citing

Glass v. Mayas, 984 F.2d 55, 57 (2d Cir. 1993).)

Regarding Fifth Cause of Action: Plaintiff generally

argues that if she is able to establish the doctors--including

Mustafa--engaged in medical malpractice, then defendant doctors

cannot claim her confinement was “otherwise privileged”. (See

Opp’n at 26.) Under such a scenario, Plaintiff’s confinement not

only subjects the defendant doctors to false imprisonment

liability under state law, but also subjects them to Section 1983

liability. (See Opp’n at 26.) Then, relying upon her medical

expert, Stastny, Plaintiff asserts “[q]uestions of fact exist as

to whether the defendants acted with an insufficient basis and

engaged in medical malpractice when they certified [Plaintiff] for

involuntary detainment, transport and confinement,” as well as to

whether Plaintiff suffered from a mental illness and posed a

substantial threat of harm to herself. (Id. at 27 (citing Stastny

Decl., ¶¶ 19-34, 35-48, 49-63).) Plaintiff does not develop these

cursory arguments.

In a similarly skeletal manner, Plaintiff asserts the

arguable probable cause standard which governs false arrest and

imprisonment claims pursuant to Section 1983 equally applies to

Mustafa’s claim of qualified immunity to Plaintiff’s Fifth Cause

of Action, i.e., her Fourth Amendment-based cause of action. (See

Opp’n at 32.)

Regarding Plaintiff’s State Law Claims: First, as to

Mustafa’s claims of immunity, Plaintiff maintains “the government

immunity doctrine ‘has no application in cases where the State

engages in a proprietary function . . . such as providing medical

and psychiatric care.’” (Opp’n at 35 (quoting Applewhite by

Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 433 (2013) (further

citation omitted); internal quotation marks omitted).) Therefore,

Mustafa’s claim of immunity based upon her exercise of discretion

and judgment is without merit. (Id.) Second, as to Plaintiff’s

request this Court maintain her state law false imprisonment and

medical malpractice claims, Plaintiff does not mention Mustafa.

(See Opp’n at 35-36.) Finally, Plaintiff simply contends the Court

should retain supplemental jurisdiction over her state law claims

because “[t]he defendants[15] have been supported by deep-pocketed

malpractice insurance carriers.” (See id. at 36.)

c. Mustafa’s Reply

Mustafa takes issue with Plaintiff’s trying to create

disputed issues of fact by relying upon her affidavit and the

affidavits of others, i.e., Husband, friend, and boss, as a means

15 It is unclear whether this argument also encompasses Mustafa.

of contesting the accuracy of the Stony Brooks records. (See Reply

at 2.) Mustafa contends:

[P]laintiff’s counsel devised a simple

strategy to oppose [D]efendants’ motions for

summary judgment based upon qualified

immunity: submit an Affidavit from the

[P]laintiff refuting almost all the statements

attributed to her by healthcare professionals

in the medical records that were

contemporaneously written while the

[P]laintiff was in the hospital.

(Id.) She contends Plaintiff’s counsel used this same tactic to

defeat summary judgment decades earlier in Rodriguez v. City of

New York, but that this case is distinguishable from Rodriguez

since, here, four doctors, a nurse, and a social worker all made

entries to Plaintiff’s chart, as compared to two medical personnel

doing the same in Rodriguez. (See id.) Therefore, this Court

should reject Plaintiff’s reliance upon a simple “deny, deny, deny”

strategy to create disputed issues of fact, which, if adopted

“would essentially vitiate the doctrine of qualified immunity at

the summary judgment stage.” (Id.)

Mustafa also highlights Plaintiff’s counsel retaining

the same medical expert here, i.e., Stastny, as in Rodriguez to

challenge whether the defendant doctors’ actions were objectively

reasonable or were a departure from generally accepted medical

standards. (See id. at 2, 5-6.) Mustafa argues Stastny’s

assessment should not be afforded weight since “his explanation as

to why the [P]laintiff did not meet the criteria [for a mental

illness] is based upon information that was not available to Dr.

Mustafa.” (Id. 5-6.)

2. The Court’s Analysis

Regarding First Cause of Action: While Plaintiff’s

First Cause of Action was based upon her alleged unreasonable

seizure, which she contends violated her Fourth and Fourteenth

Amendment rights (see TAC ¶ 72), in her Opposition, Plaintiff

explains it was her detention-for-transport to Brunswick that is

the impetus for this Cause of Action. (See Opp’n at 23.) In so

stating, Plaintiff implicitly concedes her First Cause of Action

states only a violation of the Fourth Amendment. (See id.

(asserting one who has been detained for transport to another

facility for a psychiatric evaluation without probable cause

suffers a Fourth Amendment violation and stating “[r]eference to

the Fourteenth Amendment was technically required because the

Fourth Amendment becomes applicable to the states through the

Fourteenth Amendment”).) What remains, therefore, is Plaintiff’s

Section 1983 claim of a Fourth Amendment violation premised upon

Mustafa’s decision to have Plaintiff transported to Brunswick.

See, e.g., Eze v. City Univ. of N.Y. at Brooklyn Coll., No.

11-CV-2454, 2011 WL 6780652, at *3 (E.D.N.Y. Dec. 27, 2011) (“The

act of transporting someone to a hospital against her will to be

committed, as distinct from the commitment itself, is properly

analyzed only as a Fourth Amendment violation.” (citations

omitted)).

It is well-established:

Section 1983 provides for an action at law

against a “person who, under color of any

statute, ordinance, regulation, custom, or

usage of any State . . . subjects or causes to

be subjected, any citizen of the Unite[d]

States . . . to the deprivation of any rights,

privileges, or immunities secured by the

Constitution and law.” 42 U.S.C. § 1983; see

also, e.g., Herring v. Suffolk County Police

Dep’t, No. 17-cv-5904, 2018 WL 7150387, at *4

(E.D.N.Y. Oct. 19, 2018) (“[T]o prevail on any

claim brought pursuant to Section 1983, a

plaintiff must demonstrate that he has been

denied a constitutional right or federal

statutory right and that the deprivation

occurred under color of state law.”) (further

citation and internal quotations omitted)

(report and recommendation), adopted by 2019

WL 402859 (E.D.N.Y. Jan. 31, 2019). It “is

not itself a source of substantive rights”;

rather, it “merely provides a method for

vindicating federal rights elsewhere

conferred . . . .” Patterson v. County of

Oneida, 375 F.3d 206, 225 (2d Cir.

2004)(quoting Baker v. McCollan, 443 U.S. 137,

144 n.3 (1979)); see also Lockwood v. Town of

Hempstead, No. 16-cv-3756, 2017 WL 3769253, at

*2 (E.D.N.Y. Aug. 28, 2017) (stating § 1983

provides only a procedure for redress for the

deprivation of rights established elsewhere)

(adopting report & recommendation).

“Therefore, to prevail on a claim arising

under Section 1983, a plaintiff must

establish: ‘(1) the deprivation of any rights,

privileges, or immunities secured by the

Constitution and its laws; (2) by a person

acting under the color of state law.’”

Lockwood, 2017 WL 3769253, at *2 (quoting

Hawkins v. Nassau County Corr. Facility, 781

F. Supp.2d 107, 111 (E.D.N.Y. 2011)).

Estate of Keenan v. Hoffman-Rosenfeld, No. 16-CV-0149, 2019 WL

3410006, at *13 (E.D.N.Y. July 29, 2019), aff’d 833 F. App’x 489

(2d Cir. Nov. 5, 2020).

To begin, there is no dispute Mustafa, who is a doctor-

employee of Stony Brook, which, as part of the SUNY system is a

public institution and, therefore, a state actor, is also deemed

a state actor. See generally, NCAA v. Tarkanian, 488 U.S. 179,

183, 192 (1988) (“A state university without question is a state

actor” and its executives “unquestionably act under color of state

law” when “performing their official functions.”); see also, e.g.,

Jones v. Nickens, 961 F. Supp. 2d 475, 485-86 (E.D.N.Y. 2013)

(finding no dispute that Stony Brook is a public institution);

Capellupo v. Nassau Health Care Corp., No. 06-CV-4922, 2009 WL

1705749, at *6 (E.D.N.Y. June 16, 2009) (finding doctor employees

of a public benefit corporation were state actors for purposes of

a Section 1983 claim). The issue, then, is whether Plaintiff has

established a deprivation of her constitutional right to be free

of an unreasonable seizure guaranteed by the Fourth Amendment.

See, e.g., Aouatif, 2019 WL 2410450, at *9 (“Involuntary transport

to a hospital may also constitute a seizure for purposes of the

Fourth Amendment.”).

The Second Circuit has “held that in order to

constitutionally seize a person to transport him to a hospital,

the person must be dangerous, presumably to himself or others.”

Green, 465 F.3d at 83 (citing Glass v. Mayas, 984 F.2d 55, 58 (2d

Cir. 1993)). The crux of Plaintiff’s position is her detention-

for-transport to Brunswick was unconstitutional since Mustafa’s

examination was insufficient to conclude Plaintiff was a danger to

herself, i.e., Mustafa’s determination regarding Plaintiff’s

danger to herself fell below acceptable levels of medical

competence, making it unreasonable.

A seizure for transportation

does not violate the Fourth Amendment . . . if

there is probable cause for it, meaning that

there existed “‘reasonable grounds for

believing that the person seized’ is dangerous

to herself or to others.” Anthony v. City of

New York (“Anthony II”), 339 F.3d 129, 137

(quoting Glass, 984 F.2d at 58). “For a mental

health seizure,” the law requires only “a

probability or substantial chance of dangerous

behavior, not an actual showing of such

behavior.” Heller[ v. Bedford Cent. Sch.

Dist.], 144 F. Supp. 3d [596,] 622 [(S.D.N.Y.

2015)] (internal quotation marks omitted)

(citation omitted). To determine whether

probable cause existed to justify a mental

health seizure, courts must look to “the

specific observations and information

available” at the time of the seizure. Myers

[v. Patterson], 819 F.3d [625,] 633 [(2d Cir.

2016)]; see also Mizrahi [v. City of N.Y., No.

15-CV-6084], 2018 WL 3848917, at *20

[(E.D.N.Y. Aug. 13, 2018)].

Aouatif, 2019 WL 2410450, at *9 (emphasis added). Moreover, the

“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.” Id. at *8 (quoting Kraft v. City of N.Y., 696 F. Supp.

2d 403, 413 (S.D.N.Y. 2010); internal quotation marks and further

citation omitted).

Plaintiff has failed to establish a constitutional

violation of the Fourth Amendment. There is ample undisputed

evidence that at the time she presented to the Stony Brook CPEP,

the specific observations and information available established a

probability that Plaintiff was a danger to herself. In addition

to Plaintiff’s evaluation by Stony Brook ED personnel, which

evaluation notes Mustafa reviewed, by the time Mustafa first met

Plaintiff, Plaintiff had been evaluated by several Stony Brook

CPEP personnel, i.e., a psychiatric nurse, a social work intern

under the supervision of a social worker, and a resident doctor.

(See supra BACKGROUND, Part I(A), at 5-8.) From those

interactions, there were multiple, consistent notations regarding

Plaintiff reporting, inter alia, she was: feeling depressed;

suffering episodes of crying; feeling badly about past events;

having protracted trouble sleeping and not being able to sleep;

not enjoying life as exemplified by not wanting to socialize with

friends and isolating herself and by no longer engaging in

activities which she had previously enjoyed; and, wanting to jump

off a bridge and leave this earth. (See id.) Despite these

preliminary observations recorded in Plaintiff’s Stony Brook

chart, which Mustafa also reviewed, as well as Mustafa’s

consultation with the resident, Mustafa further engaged in at least

three face-to-face interactions with Plaintiff ranging from

upwards of 45 minutes to a 10-minute evaluation. (See id. at 8-9.)

Based upon Mustafa’s multiple personal evaluations of Plaintiff,

in conjunction with her consideration of the information from

collateral sources, it was reasonable for Mustafa to conclude

Plaintiff exhibited a probability or substantial chance of danger

to herself. Indeed, Mustafa recorded her impression that

Plaintiff’s ongoing medical issues led to poor sleep, poor

appetite, weight loss, hopelessness, worthlessness and recent

suicidal ideation, which supported her medical judgment that

Plaintiff was a possible danger to herself, thereby warranting her

transport to Brunswick for further assessment. (See P-M Counter.

¶¶ 109-11.) Thus, during the time of Plaintiff’s presentation at

Stony Brook, when Mustafa was addressing Plaintiff’s emergent

situation, in light of the substantial contemporary collateral

information available to Mustafa, including the multiple,

consistent observations of the Stony Brook ED personnel and the

Stony Brook CPEP personnel, which Mustafa confirmed by way of at

least three face-to-face evaluations of Plaintiff, there was

sufficient evidence for Mustafa to conclude Plaintiff posed a

danger to herself; in turn, detention-for-transport was justified

and there was no violation of Plaintiff’s Fourth Amendment rights.

See Bryant, 462 F. Supp. 3d at 260 (“For a mental health seizure,

the law requires only ‘a probability or substantial chance of

dangerous behavior, not an actual showing of such behavior.’”

(quoting Heller v. Bedford Cent. Sch. Dist., 144 F. Supp. 3d 596,

622 (S.D.N.Y. 2015)); see also Aouatif, 2019 WL 2410450, at *9-10.

Even if that were not so, given the facts of this case,

Mustafa would be entitled to qualified immunity. As the Aouatif

Court stated:

The doctrine of qualified immunity

protects public officials from liability for

violating clearly established constitutional

rights, so long as it was objectively

reasonable for the official to believe that

his conduct did not violate such rights. See

Katzman [v. Khan], 67 F. Supp. 2d [103,] 109

[(E.D.N.Y. 1999)]; Brown [v. Catania, No.

3:06-CV-0073,] 2007 WL 879081, at *6 [(D.

Conn. Mar. 21, 2007)] (citing Anderson v.

Creighton, 483 U.S. 635, 638–39 (1987)).

Qualified immunity is a two-step inquiry:

first, the Court examines whether the

official’s conduct violated a clearly

established constitutional right; second,

even if the official did violate such a right,

he “is still entitled to qualified immunity if

it was objectively reasonable for him to

believe that his conduct did not violate [that

right].” Brown, 2007 WL 879081, at *6 (citing

Saucier v. Katz, 533 U.S. 194, 201 (2001);

Anderson, 483 U.S. at 638–39). “To be deprived

of the defense of qualified immunity, a public

official must not simply violate plaintiff’s

rights; rather, the violation of plaintiff’s

rights must be so clear that no reasonable

public official could have believed that his

actions did not violate such rights.” Stanley

v. Cooper, 996 F. Supp. 316, 320–21 (S.D.N.Y.

1998) (citing Anderson, 483 U.S. at 640); see

also Birmingham v. Ogden, 70 F. Supp. 2d 353,

375 (S.D.N.Y. 1999) (“[W]here the law is

clearly settled, summary judgment may be

granted on qualified immunity grounds if the

only conclusion a rational jury could reach is

that reasonable officials would disagree about

the legality of the defendants[’] conduct

under the circumstances.” (internal brackets

omitted) (internal quotation marks omitted)

(citation omitted)).

In the context of involuntary transport

to the hospital, the availability of qualified

immunity turns on whether, at the time [the

doctor authorized the transport] and in light

of the information he then possessed, it was

objectively reasonable for him to believe that

[the plaintiff] posed a risk of serious harm

to herself or others. See Rodriguez, 72 F.3d

at 1065; Sumay v. City of New York Health &

Hosp. Corp., No. 97-CV-3606 (SS), 1998 WL

205345, at *6 (S.D.N.Y. Apr. 28, 1998). Even

assuming that his determination was incorrect,

qualified immunity shields him from liability

unless his determination was “plainly

incompetent” or amounted to a knowing

violation of the law. See Hunter [v. Bryant],

502 U.S. [224,] 229 [(1991)] (“The qualified

immunity standard ‘gives ample room for

mistaken judgments’ . . . .” (quoting Malley

v. Briggs, 475 U.S. 335, 341 (1986))).

2019 WL 2410450, at *11 (emphasis added). Indeed, the Second

Circuit instructs that “qualified immunity provides a broad

shield,” thereby giving officials “‘breathing room to make

reasonable but mistaken judgments’ without fear of potentially

disabling liability.” Zalaski v. City of Hartford, 723 F.3d 382,

389 (2d Cir. 2013) (quoting Messerschmidt v. Millender, 565 U.S.

535, 546 (2012)). It employs a deliberately “forgiving” standard

of review that “provides ample protection to all but the plainly

incompetent or those who knowingly violate the law.” Id.

(citations omitted).

Assuming, arguendo, a Fourth Amendment violation was

committed by Mustafa, a contention which the Court has rejected,

it was objectively reasonable for Mustafa to determine Plaintiff

posed a probable or substantial chance of danger to herself based

upon the facts Mustafa knew at the time of her evaluations of

Plaintiff. Moreover, there is no record evidence that Mustafa was

plainly incompetent or knowingly violated the law. In that vein,

the Court finds Plaintiff’s “blanket denial of the accuracy of

medical records [to establish Mustafa’s] incompetency is

untenable; as stated in Kulak, ‘bare denials of statements

allegedly made by patients under such circumstances [are not]

enough to defeat summary judgment.’” Aouatif, 2019 WL 2410450, at

*8 (quoting Kulak v. City of N.Y., 88 F.3d 63, 76 (2d Cir. 1996)).

Rather, the Stony Brook CPEP “records, created contemporaneously

by trained medical professionals, bely [Plaintiff’s] bald claims

that she was” detained-for-transport without probable cause. Id.

Further, Plaintiff’s reliance on her medical expert’s

Declaration fares no better; the Court finds the Stastny

Declaration inadequate to establish a disputed issue of fact as to

whether Mustafa’s diagnosis fell substantially below accepted

professional judgment. Of note, in making his Declaration, Stastny

stated “when there was a factual dispute in the testimony, I have

assumed as true the factual version that was more favorable to

[Plaintiff].” (Stastny Decl. ¶ 6.) Thereafter, Stastny baldly

relied upon Plaintiff’s blanket denials that, when she presented

on July 24, 2015, she was not depressed (see id. ¶¶ 23, 24, 26-31)

in support of his contention that “the conclusion that [Plaintiff]

suffered from a primary depressive or major depressive disorder

amounted to a substantial departure from clinical standards.” (Id.

¶ 34.) Stastny also relied upon non-contemporaneous information

to support his conclusion. (Id. ¶ 40 (relying upon: Plaintiff’s

2018 deposition; Plaintiff’s 2018 office visit and follow-up phone

call with Stastny; Plaintiff’s 2020 post-deposition affidavit

(which the Court has declined to consider); and, the 2020

affidavits of Plaintiff’s Husband, friend, and employer).) Yet,

it is well-settled that “courts must look to ‘the specific

observations and information available’ at the time of the seizure”

when determining whether probable cause existed to justify the

detention-for-transport. Aouatif, 2019 WL 2410450, at *9

(emphasis added; citations omitted). To the extent Stastny implies

there was a pre-determination to detain Plaintiff (see Stastny

Decl. ¶¶ 39, 64), the Court finds Stastny’s assertion to be bald,

conclusory, and speculative and, therefore, insufficient to

preclude summary judgment. See Bryant, 462 F. Supp. 3d at 258

(instructing a party may not rely upon conclusory allegations or

unsubstantiated speculation to defeat a summary judgment motion).

Additionally, the Court finds Stastny’s Declaration

fails to establish disputed issues of fact regarding whether

Mustafa’s determination to detain-for-transport Plaintiff fell

below acceptable standards of medical care thereby warranting a

denial of qualified immunity. Stastny baldly premises his opinion

upon Plaintiff’s unfounded position that Mustafa engaged in only

one, 10-minute in-person evaluation of Plaintiff. (See, e.g.,

Stastny Decl. ¶¶ 49, 62.) First, there is no per se rule that a

10-minute evaluation is insufficient for a doctor to make a medical

determination such as Mustafa’s. But, cf., Bryant, 462 F. Supp.

3d at 264 (finding defendant-doctor lacked reasonable basis to

conclude patient-plaintiff posed a substantial threat to others

where, inter alia, defendants were unable to substantiate doctor

“could reach an informed decision based on an interview that lasted

only between three and five minutes”). Second and more important,

Plaintiff has failed to present competent evidence disputing

Mustafa’s deposition testimony that she met with Plaintiff at least

three times, with only one of those meetings lasting approximately

10 minutes. Because Stastny’s 10-minute contention derives from

his misplaced reliance upon Plaintiff’s Affidavit, which the Court

has declined to consider having found it to be a “sham” affidavit,

his opinion regarding Mustafa’s determination is unavailing.

(Compare, e.g., Pl. Aff. ¶57, with Mustafa Dep. Tr., Ex. M-L, at

pp. 46-48 (testifying to having met with Plaintiff four times with

meetings ranging from upwards of 45 minutes to 10 minutes).)

Indeed, given the ample undisputed evidence that, in addition to

considering collateral sources of information, Mustafa spent

appropriate time with Plaintiff to sufficiently evaluate her

before determining Plaintiff was a probable danger to herself

warranting her transport to Brunswick for further evaluation, at

the very least, a rational jury would be compelled to find

reasonable doctors could disagree about the legality of Mustafa’s

conduct given the circumstances presented. Hence, under such a

scenario, Mustafa is entitled to qualified immunity. In sum, “[i]n

light of the delicate circumstances” presented by Plaintiff on

July 24, 2015, “and the decision that [Mustafa] was compelled to

make between ensuring [Plaintiff’s] safety and ignoring possible

warning signs of a dangerous psychotic episode, [Mustafa] should

not be held liable for making the decision [s]he did.” Aouatif,

2019 WL 2410450, at *11. Rather, granting “[q]ualified immunity

under these circumstances seems particularly appropriate when

considering how we would judge the legality of a contrary decision

by [Mustafa].” Id. (quoting Anthony v. City of N.Y., No.

00-CV-4688, 2001 WL 741743, at *6 (S.D.N.Y. July 2, 2001)).

Regarding Fifth Cause of Action: The Court agrees with

Mustafa that it is not readily apparent Plaintiff is putting forth

a Fourth Amendment claim via his Fifth Cause of Action, but rather,

that this cause of action reads as being based upon a violation of

MHL § 9.37. Thus, presented with a Section 1983 claim based upon

a violation of a state statute, this cause of action is not

sustainable. See Aouatif, 2019 WL 2410450, at *6 (identifying the

deprivation of “a right, privilege or immunity secured by the

Constitution and laws of the United States” as a necessary

component of a Section 1983 claim); cf. Keenan, 2019 WL 3410006,

at *13 (articulating necessary components of a Section 1983 cause

of action). Hence, having failed to identify a deprivation of a

right pursuant to the Constitution and its laws in her Fifth Cause

of Action, Plaintiff cannot succeed on this claim.

To the extent Plaintiff seeks to clarify her Fifth Cause

of Action, explaining it should be read as raising a Fourth

Amendment false imprisonment claim (see Opp’n at 26), the Court

rejects that attempt. It is settled law that one may not amend

one’s complaint via an opposition to a summary judgment motion.

See, e.g., Smith v. City of N.Y., 385 F. Supp. 3d 323, 338 (S.D.N.Y.

2019) (“Because ‘a party may not use his or her opposition to a

dispositive motion as a means to amend the complaint, it is

inappropriate to raise new claims for the first time in submissions

in opposition to summary judgment.’” (first quoting Shah v. Helen

Hayes Hosp., 252 F. App’x 364, 366 (2d Cir. 2007); then quoting

Beckman v. U.S. Postal Serv., 79 F. Supp. 2d 394, 407 (S.D.N.Y.

2000)) (collecting cases) (cleaned up)). However, even if the

Court were to construe Plaintiff’s Fifth Cause of Action as raising

a Fourth Amendment claim, the Court agrees with Mustafa that there

would then be no discernable difference between Plaintiff’s First

and Fifth Causes of Action. Thus, the Court’s finding of no

violation of Plaintiff’s Fourth Amendment rights by Mustafa would

apply equally to Plaintiff’s Fifth Cause of Action, as would the

Court’s alternative finding that Mustafa would be entitled to

qualified immunity based upon the record presented. Hence, even

if deemed to be a Fourth Amendment-based cause of action,

Plaintiff’s Fifth Cause of Action against Mustafa fails.

Regarding Plaintiff’s State Law Claims: The reader is

referred to Part II(B)(2) of the Court’s DISCUSSION (see infra at

71-73) for the Court’s ruling regarding Plaintiff’s state law

claims against all Defendants.

B. The Hospital Defendants’ Summary Judgment Motion

Plaintiff raises four Section 1983 claims against Onuogu

and Sial (together, the “Hospital Doctors”), to wit, her: (1)

Fourth Cause of Action, alleging the Hospital Doctors violated the

Fourth and Fourteenth Amendments by involuntarily hospitalizing

Plaintiff without probable cause, in violation of MHL § 9.37; (2)

Fifth Cause of Action, alleging her confinement was not otherwise

privileged since she did not meet the criteria for hospitalization

under MHL § 9.37; (3) Sixth Cause of Action, alleging a violation

of her Fourteenth Amendment substantive due process rights

resulting from her involuntary confinement which was not justified

since she did not pose a danger to herself due to mental illness;

(4) Seventh Cause of Action, alleging a violation of her Fourteenth

Amendment substantive due process rights since the Hospital

Doctors failed to spend the necessary amount of time to accurately

assess Plaintiff’s level of harm to herself. As to Onuogu only,

Plaintiff brings another federal claim, i.e., the Eighth Cause of

Action, in which she alleges, due to the Hospital’s policy of

accepting transferred patients for admission without a psychiatric

evaluation, Onuogu violated Plaintiff’s Fourteenth Amendment

procedural due process rights.

Plaintiff also brings state law claims against the

Hospital Doctors, i.e., her: (1) Tenth Cause of action, alleging

false imprisonment; (2) Twelfth Cause of Action, alleging medical

malpractice; and (3) Thirteenth Cause of Action, also alleging

medical malpractice. Plaintiff also raises another false

imprisonment claim against Onuogu only in her Eleventh Cause of

Action.

Plaintiff’s claims against Brunswick are all based upon

state law; they are her: (1) Tenth Cause of Action, alleging false

imprisonment as a result of a departure from accepted clinical

standards; (2) Eleventh Cause of Action, alleging false

imprisonment as a result of violating MHL § 9.37; (3) Twelfth Cause

of Action, alleging medical malpractice as a result of a departure

from accepted clinical standards since the Hospital Doctors failed

to spend adequate time in assessing Plaintiff; and (4) Thirteenth

Cause of Action, alleging medical malpractice as a result of a

departure from accepted clinical standards when the Hospital

doctors ignored Plaintiff’s statements that she did not have

suicidal thoughts or intents.

The Hospital Defendants request the entry of summary

judgment in their favor dismissing all claims and causes of action

asserted against them by Plaintiff.

1. The Parties’ Positions

a. The Hospital Defendants’ Position

Regarding Fifth Cause of Action: Similar to Mustafa,

the Hospital Defendants argue this claim should be dismissed

because Plaintiff “does not identify a constitutional or federal

statutory right that is separate and apart from the violation of

the Fourth and Fourteenth Amendments alleged in the other causes

of action.” (H-Support Memo at 4.) Thus, since Section 1983 is

not an independent source of substantive rights, this cause of

action should be dismissed. (See id.)

Regarding Fourth, Sixth, and Seventh Causes of Action:

Asserting they are not state actors since Brunswick is a private

hospital and the Hospital Doctors are private psychiatrists on the

Hospital’s staff,16 the Hospital Defendants argue Plaintiff’s

Section 1983 claims against them are not sustainable. (H-Support

16 Indeed, the Hospital Defendants contend Plaintiff’s failing to

have alleged they are state actors in her TAC is a fatal pleading

defect. (See id. at 6 n.1 (citing Gomez v. Toledo, 446 U.S. 635,

640 (1980); further citation omitted).)

Memo at 6 (further articulating Plaintiff cannot satisfy any of

the three tests for determining state action); see also id. at 7

(asserting case law “makes clear that a private hospital and

private psychiatrists cannot be deemed state actors simply because

they confine patients pursuant to [MHL], as this does not satisfy

any of the three tests for state action under § 1983” (citations

omitted).) The Hospital Defendants proceed to focus on the third

state action test, i.e., the “public function” test. (See id. at

5 (defining the three state action tests); see also id. 7-8 (re:

Onuogu), 8-9 (re: Sial).) They contend the record evidence

demonstrates the Hospital Doctors each acted independently,

personally conducting face-to-face evaluations of Plaintiff, in

addition to relying upon other collateral sources of input as to

Plaintiff’s then-presenting condition. (See id. at 7-9.) Indeed,

“the documented history [the Hospital Doctors] obtained directly

from the Plaintiff--through her statements and their mental status

examination findings--demonstrates that [the Hospital Doctors]

primarily utilized independent judgment, thereby separating

themselves from the preceding state action on the part of Dr.

Mustafa.” (Id. at 9 (citing Jackson, 2018 WL 340014, *17).)

Hence, similar to Judge Spatt in Bryant v. Steele, here, the Court

should find that “[h]aving examined the Plaintiff, the Brunswick

Defendants are not state actors, thus eliminating a necessary

condition to being sued under § 1983.” (Id. at 10 (quoting Bryant

v. Steele, 462 F. Supp. 3d 249, 268 (E.D.N.Y. 2020)).) And,

similar to Bryant, this Court should reject Plaintiff’s

self-serving claims of truncated examinations by the Hospital

Doctors, in an attempt to create disputed issues of fact to defeat

summary judgment, especially when the summary judgment record

shows otherwise. (See id. at 10-11.)

Further Regarding Fourth Cause of Action: Recognizing

an involuntary emergency commitment is entitled to due process

that comports with a reasonable degree of medical accuracy as

defined, for example by MHL § 9.37, the Hospital Doctors also

assert “MHL § 9.37 implicitly defers to medical judgment[, which]

requires a physician to make a medical decision guided by standards

that are generally accepted within the medical community.”

(H-Support Memo at 14 (citing Rodriguez, 72 F.3d at 1062-63).) In

accordance therewith, the Hospital Doctors argue “[d]ue process

does not ‘require a guarantee that a physician’s assessment of the

likelihood of serious harm be correct.’” (Id. (quoting Rodriguez,

72 F.3d at 1062).) Rather, as they maintain they have done here,

a doctor need only comport with accepted judgment, practice or

standards. (See id. at 14 -15 (“In their respective determinations

pursuant to MHL § 9.37, Dr. Onuogu and Dr. Sial exercised their

independent medical judgment after considering the history they

obtained from Plaintiff, her presentation, and their mental status

exam findings, as well as the CPEP records that accompanied

[Plaintiff] to Brunswick Hospital.”).) The Hospital Doctors would

have this Court reject Plaintiff’s assertion that it was improper

for them to consider the collateral information from Mustafa

arguing “[t]here is no authority supporting Plaintiff’s contention

that a physician must corroborate collateral information when

there is no indication that it is unreliable.” (Id. at 15

(citations omitted).) In any event, the Hospital Doctors lay out

their respective evaluations of Plaintiff evincing their having

reasonably exercised their medical judgment well within the range

of competent care. (See id. at 16-17 (re: Onuogu); see also id.

at 17-19 (re: Sial).) And, said evaluations substantiate that, at

the time of her presentation, there were reasonable grounds for

believing Plaintiff had a mental illness for which immediate

hospitalization was appropriate since Plaintiff was a danger to

herself. (See id. at 19-20 (further relying upon an expert opinion

to support Hospital Doctors’ position they “acted within the

standard of care in diagnosing Plaintiff with major depressive

order and in determining that she presented a substantial risk of

harm due to her suicidality during her involuntary admission”

(citing Bardey Decl., Ex. H-A)).) Hence, because the Hospital

Doctors acted reasonably in making their then-present assessments

of Plaintiff, as a matter of law, they are entitled to judgment in

their favor as to Plaintiff’s Fourth Cause of Action. (See id. at

20.)

Regarding Eighth Cause of Action: The Hospital

Defendants remind the Court that Plaintiff currently maintains

this cause of action against Onuogu only. (H-Support Memo at 12.)

They characterize this claim as a “Monell-type claim” whereby

Plaintiff asserts her Fourteenth Amendment rights have been

violated due to the Hospital’s purported policy of accepting

transferred patients for admission without the benefit of an

independent psychiatric evaluation. (See id.) However, since a

Monell claim requires action taken under color of law and Onuogu

is not a state actor, this cause of action is untenable. (See id.

(stating the requirements of a Monell claim (quoting Roe v. City

of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008))).) Moreover,

according to the Hospital Defendants, Plaintiff has failed to

assert any facts supporting her contention the Hospital has a

policy or custom of admitting psychiatric patients without

performing independent evaluations of such patients. (See id. at

12-13.) Relatedly, they argue it is not enough to infer the

Hospital has a policy or custom simply because Brunswick

psychiatrists agree with assessments made by referring CPEP

psychiatrists determining patients require involuntary

hospitalization, especially given the lack of evidence supporting

such a contention. (See id. at 13.) Hence, the Hospital

Defendants contend Plaintiff’s Eighth Cause of Action must fail.

Regarding Alternative Claim of Qualified Immunity:

While not conceding Plaintiff is able to establish any Section

1983 claims against them, the Hospital Doctors alternatively argue

that upon the assumption of same, they would be entitled to

qualified immunity since they “had more than sufficient

information from their personal interactions with Plaintiff and

their review of her CPEP records to reasonably determine that she

was depressed and suicidal . . . .” (H-Support Memo at 20, 22.)

Likewise, there is no summary judgment evidence showing the

Hospital Doctors “were plainly incompetent or knowingly violated

the law.” (Id. at 22.) Accordingly, neither Hospital Doctor

violated Plaintiff’s Fourth or Fourteenth Amendment rights. (See

id.) “[A]nd, in any event, any alleged violation was not so clear

that no reasonable psychiatrist could have believed that their

actions did not violate such right. On the contrary, at most,

reasonable officials would disagree on whether [the Hospital

Doctors] violated Plaintiff’s rights, which is sufficient for

qualified purposes.” (Id.) Accordingly, the Hospital Doctors

would be entitled to qualified immunity. (See id.)

Regarding Plaintiff’s State Law Claims: As to

Plaintiff’s medical malpractice claims, the Hospital Doctors

contend the record evidence demonstrates they each “performed

sufficient examinations and met the accepted standards for

reasonable care.” (See H-Support Memo at 23.) Moreover, the

Hospital Doctors’ medical expert’s opinion confirmed same. (See

id.) Hence, the Hospital “Defendants are entitled to summary

judgment with respect to Plaintiff’s Twelfth and Thirteenth Causes

of Action.” (Id.)

As to Plaintiff’s false imprisonment claims, the

Hospital Defendants contend Plaintiff has not pled a cause of

action pursuant to Section 1983. (See H-Support Memo at 23.) More

particularly, they argue that because the record evidence

demonstrates the Hospital Doctors complied with the statutory

requirements of the applicable MHL, thereby establishing a lack of

medical malpractice, their involuntary confinement of Plaintiff is

privileged; hence, false imprisonment is not had. (See id.)

For completeness, the Hospital Defendants also contend

that, if the Court determines they are state actors entitled to

qualified immunity as to Plaintiff’s federal and constitutional

law claims, then the Court should also afford them qualified

immunity as to Plaintiff’s state law claims. (See id. at 24

(collecting cases).) Based upon such immunity, Plaintiff’s

medical malpractice and false imprisonment causes of action should

be dismissed.

Regarding Alternative Request to Decline Supplemental

Jurisdiction: If the Court dismisses Plaintiff’s federal

constitutional claims against them, the Hospital Defendants ask

the Court, in its discretion, to decline supplemental jurisdiction

over Plaintiff’s state law claims. (See H-Support Memo at 24-25.)

They assert the relevant factor, i.e., judicial economy,

convenience, fairness, and comity, weigh in favor of such

declination. (See id.) Moreover, “[g]iven that discovery has

already been completed, refiling in state court would present

little inconvenience and no prejudice to the parties.” (Id.

(citing Jackson, 2018 WL 340014, at *21).) Therefore, the Hospital

Defendants request Plaintiff’s pendent state law claims be

dismissed. (See id.)

b. Plaintiff’s Counter-Position

Regarding Hospital Doctors’ State Actors Status:

Plaintiff argues the Hospital Doctors engaged in state action

because they relied upon state-actor-Mustafa’s evaluation of

Plaintiff made in deciding to have Plaintiff transported to

Brunswick. (See Opp’n at 21.) In other words, Plaintiff contends

“the civil commitment scheme set forth in Mental Hygiene Law § 9.37

created ‘an ongoing relationship . . . for the case of . . .

patients in need of hospitalization,’ which warrants a finding of

state action.” (Id. at 21-22 (quoting Rodriguez v. Plymouth

Ambulance Serv., 577 Ff.3d 816, 831 (7th Cir. 2009)).) Plaintiff

also maintains “[q]uestions of fact exist as to whether Drs. Onuogu

and Sial exercised independent medical judgment” since no doctor

can make a mental illness and dangerousness assessment in five

minutes, as Onuogu purportedly did, or reach a conclusion about a

patient’s clinical state upon initial introduction, as Sial

purportedly did. (Id. at 22.)

Regarding Presence of Probable Cause: Relying upon

Stastny’s opinion, Plaintiff advances the argument that the

Hospital Doctors lacked any reasonable basis for concluding she

posed a substantial threat of harm. (See Opp’n at 24.) Stastny

generally testified: a psychiatrist requires an adequate

face-to-face evaluation of a patient to determine the patient’s

mental status and level of risk (see id. at 24 (citing Stastny

Decl. ¶¶ 9, 39)); and, while permitted to rely upon information

from collateral sources, a psychiatrist is still required to verify

such information from the patient (see id. at 24-25 (citing Stastny

Decl. ¶ 10)). Then, relying upon her post-deposition Affidavit,

Plaintiff contends “she never felt depressed, never had a

suicide[al] thought in her life, and never felt unsafe” and that

“[a]ll of this information was available to Drs. Onuogu and Sial

if they simply took the time to evaluate her in a way that comported

with professional standards,” but “[t]hey did not.” (Id. at 25.)

Thus, the implication is that, since Plaintiff’s recollection of

what transpired during the Hospital Doctors’ evaluations of her

differs from the Hospital Doctors’ recollections, disputed issues

of fact are present precluding summary judgment.

Regarding Fifth Cause of Action: The reader is referred

to Part II(B)(1)(b) of the Court’s DISCUSSION (see supra at 33-34),

for Plaintiff’s counter-position regarding her Fifth Cause of

Action.

Regarding Sixth and Seventh Causes of Action: Beginning

with the well-established axiom that “[a]s a substantive matter,

due process does not permit the involuntary hospitalization of a

person who is not a danger to either herself or others” (Opp’n at

28 (quoting Rodriguez, 72 F.3d at 1061)), Plaintiff maintains

“[q]uestions of fact exist as to whether [she] posed a danger to

herself or others.” (Id. at 29.) Again, she makes this claim

based upon her post-deposition Affidavit and the Stastny

Declaration, which Declaration substantially relies upon

Plaintiff’s post-deposition Affidavit (especially regarding the

amount of time the Hospital Doctors spent evaluating Plaintiff).

(See id.) Plaintiff further argues Stastny’s Declaration

sufficiently contradicts the Hospital Doctors’ claims that they

made their decision to involuntarily commit Plaintiff pursuant to

MHL § 9.37 in accordance with appropriate medical standards. (See

id. at 29-30.) Hence, according to Plaintiff, factual disputes

remain which cannot be decided upon summary judgment. (See id.)

Regarding Hospital Defendants’ Claimed Qualified

Immunity: Without citation to the record, Plaintiff generally

contends questions of fact exist regarding the Hospital Doctors’

assessments of Plaintiff. (See Opp’n at 32.) Relying upon the

Stastny Declaration, Plaintiff argues “[i]t is well-settled that

conflicting expert testimony on medical issues creates an issue of

fact that requires resolution by a jury.” (Id. at 34 (citing

Rodriguez, 72 F.3d at 1063); see also id. (“The plaintiff has

submitted expert testimony explaining why the determination by

Drs. Onuogu and Sial substantially departed from professional

standards.” (citing Stastny Decl., ¶¶ 34; 49-64)).) Hence, the

implied conclusion is the Hospital Doctors are not entitled to

qualified immunity. (See id. (“[I]t was not reasonable for [the

Hospital Doctors] to believe that their cursory assessments of the

plaintiff could produce accurate assessments.” (citing Stastny

Decl., ¶¶ 66-68)).)

Regarding Retention of Supplemental Jurisdiction: The

reader is referred to Part II(B)(1)(b) of this Memorandum’s

DISCUSSION section (see supra at 34), for a summary of Plaintiff’s

position regarding retention of supplemental jurisdiction.

c. The Hospital Defendants’ Reply

As to Plaintiff’s federal law claims, the Hospital

Defendants initially reiterate their position that Plaintiff’s

bare denials regarding the accuracy of the Hospital’s charts

documenting Plaintiff’s depression and suicidal ideation, which

she supports with reliance upon the Second Circuit’s Rodriguez

case, is untenable given the Circuit Court’s subsequent Kulak

decision. (See H-Reply at 1.) They proceed to re-state their

position that they are not state actors; as such, Plaintiff cannot

maintain Section 1983 causes of action against them. (See id. at

2-3.) Moreover, to the extent Plaintiff contends the Hospital

Defendants are state actors, her state action position rests upon

whether or not the Hospital Doctors examined Plaintiff. (See id.

at 4.) Because there is ample evidence the Hospital Doctors,

indeed, performed their own assessments of Plaintiff, “Plaintiff’s

flat denials and self-serving assertions that the examinations

lasted no more than ten minutes and no psychiatrist could possibly

gather sufficient information in the duration of their meeting[s]

are not only insufficient in law, but also inconsistent,

self-serving, and implausible.” (Id.; see also id. at 4-7

(highlighting record evidence demonstrating sufficient

examinations of Plaintiff by Hospital Doctors, thereby debunking

Plaintiff’s bare denials of same).) Further, the Hospital

Defendants push for alternative relief of qualified immunity if

they are found to be state actors. (See id. at 7-8.) They assert

the summary judgment record supports a finding they acted

reasonably in their examinations of Plaintiff and Plaintiff has

not presented evidence the Hospital Doctors knowingly violated the

MHL. (See id. (“As documented in the copious and contemporaneous

medical records, [the Hospital Doctors’] opinions were objectively

reasonable and in accordance with accepted medical []practice.”

(citing Jackson, 2018 WL 340014, at *21)).)

As to Plaintiff’s state law claims, the Hospital

Defendants first contend those claims should be dismissed since

they, too, are based upon Plaintiff’s contention the Hospital

Doctors did not spend sufficient time evaluating her, which the

summary judgment record debunks. (See id. at 9.) Moreover,

“because the [Hospital] Defendants’ determinations were

indisputably discretionary in nature, they are entitled to

dismissal of the[] state law claims on qualified immunity grounds.”

(Id. (citing Torcivia, 409 F. Supp. 3d at 49).) Alternatively and

finally, the Hospital Defendants continue to press for the Court’s

declining to exercise supplemental jurisdiction over Plaintiff’s

state law claims, contending both that Plaintiff’s “deep pockets”

argument is inappropriate and “re-filing in state court would

present only minor inconvenience to the parties.” (Id. at 10.)

2. The Court’s Decision

Regarding Plaintiff’s Federal Claims: The Court first

examines Plaintiff’s federal claims, which are all premised upon

Section 1983. See, e.g., Bryant v. Steele, 462 F. Supp. 3d 249,

265 (E.D.N.Y. 2020).

Section 1983 allows for injured parties

to take action against people acting under

color of state law. Fabrikant v. French, 691

F.3d 193, 206 (2d Cir. 2012) (citing 42 U.S.C.

§ 1983). “‘Because the United States

Constitution regulates only the Government,

not private parties, a litigant claiming that

his constitutional rights have been violated

must first establish that the challenged

conduct constitutes state action.’” Id.

(citing Flagg v. Yonkers Sav. & Loan Ass’n,

396 F.3d 178, 196 (2d Cir. 2005) (internal

quotation marks omitted)). Thus, the § 1983

plaintiff bears the burden of showing state

action on the part of the defendant. Tancredi

v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d

Cir. 2003); see Brentwood Acad. v. Tenn.

Secondary Sch. Athletic Ass’n, 531 U.S. 288,

295 n.2, 121 S. Ct. 924, 148 L. Ed. 2d 807

(2001) (“If a defendant’s conduct satisfies

the state-action requirement of the Fourteenth

Amendment, the conduct also constitutes an

action ‘under color of state law’ for § 1983

purposes.”).

Id. at 266.

For the purposes of [S]ection 1983, the

actions of a nominally private entity are

attributable to the state when: (1) the entity

acts pursuant to the ‘coercive power’ of the

state or is ‘controlled’ by the state (‘the

compulsion test’); (2) when the state provides

‘significant encouragement’ to the entity, the

entity is a ‘willful participant in joint

activity with the [s]tate,’ or the entity’s

functions are ‘entwined’ with state policies

(‘the joint action test’ or ‘close nexus

test’); or (3) when the entity ‘has been

delegated a public function by the [s]tate’

(‘the public function test’).

Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255,

257 (2d Cir. 2008) (quoting Brentwood Acad., 531 U.S. at 296); see

also Caballero v. Shayna, No. 18-CV-1627, 2019 WL 2491717, *3

(E.D.N.Y. June 14, 2019) (quoting Sybalski); Herring v. Suffolk

County Police Dep’t, No. 17-CV-5904, 2018 WL 7150357, *4 (E.D.N.Y.

Oct. 19, 2018) (same). “The fundamental question under each test

is whether the private entity’s challenged actions are ‘fairly

attributable’ to the state.” Fabrikant, 691 F.3d at 207 (quoting

Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982)); Caballero, 2019

WL 2491717, at *3 (quoting Fabrikant).

“Private medical facilities are generally not state

actors for purposes of Section 1983.” Jones v. Nickens, 961 F.

Supp. 2d 475, 484 (E.D.N.Y. 2013) (omitting citations); see also

Jackson, 2018 WL 340014, at *14 (finding private hospital and its

doctors are not state actors); see also generally Garramone v.

SUNY, No. 23-CV-0066, 2023 WL 4471957, at *7 (E.D.N.Y. July 11,

2023) (“[P]rivate parties are not generally liable under Section

1983.” (collecting cases)). There is no dispute Brunswick is a

private psychiatric hospital and the Hospital Doctors were private

psychiatrists on staff at the Hospital. (See P-H 56.1 Counter. ¶¶

117 (re: Hospital), 135 (re: Onuogu), 166 (re: Sial).)

In advancing their position that they are not state

actors, the Hospital Defendants press for a state actor analysis

under the “public function test”, which Plaintiff does not

contest.17 “To satisfy the state action requirement under the

17 The Court finds that by having acquiesced to the Court focusing

only upon the state actor public function test, as evidenced by

Plaintiff having failed to advance arguments in support of the

Court analyzing whether the Hospital Defendants are state actor

pursuant to either the compulsion test or the joint-action test,

Plaintiff is deemed to have abandoned the application of those

tests. See, e.g., Butler, 2023 WL 5096218, at *29 n.34 (finding,

where non-movant did not meaningfully respond to an argument raised

in support of summary judgment, court may deem claim abandoned)

(collecting cases). Yet, given the summary judgment record, it is

‘public function’ test, the private entity must ‘perform a function

that is traditionally the exclusive prerogative of the state.’”

Archer v. Econ. Opportunity Comm’n, 30 F. Supp. 2d 600, 606

(E.D.N.Y. 1998) (quoting Rendell-Baker, 457 U.S. at 842); see also

Caballero, 2019 WL 2491717, at *3 (“Under the public function test,

‘[s]tate action may be found in situations where an activity that

traditionally has been the exclusive, or near exclusive, function

of the State has been contracted out to a private entity.’”

(quoting Grogan v. Blooming Grove Volunteer Ambulance Corps, 768

F.3d 259, 264–65 (2d Cir. 2014) (internal quotations and citation

omitted)); Herring, 2018 WL 7150387, at *5 (quoting Archer). Upon

the summary judgment record presented, Plaintiff cannot establish

state action under the public function test since “the

hospitalization authority that the MHL bestows on hospitals and

physicians is not the sort of power traditionally reserved for the

State because ‘[t]he responsibility for invalid commitment lies

with the physician as a private individual,’ and thus fails to

satisfy the public-function test.” Jackson, 2018 WL 340014, at

unlikely Plaintiff could have established the Hospital Defendants

were state actors pursuant any of the state actor tests. See,

e.g., Bryant v. Steele, 93 F. Supp. 3d 80, 90 (E.D.N.Y. 2015)

(ruling upon dismissal motion, collecting cases where district

courts in this Circuit “have found that none of the three tests

for state action—‘state compulsion,’ ‘public function,’ and ‘close

nexus’—were satisfied”); cf., e.g., Jackson, 2018 WL 340014, at

*14-15 (discussing compulsion test), and at *15-17 (discussing

joint-action test); Keenan, 2019 WL 3410006, at *20 (discussing

compulsion test), and at *19 (discussing joint-action test).

*14 (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 353

(1974)). Moreover, “[t]he Second Circuit has recognized that

private hospitals, though ‘clearly affected with a public

interest, have not been traditionally associated with sovereignty,

and have long been relegated to the private domain, rather than

treated as traditionally the exclusive prerogative of the State.’”

Id. at *17 (quoting Schlein v. Milford Hosp., Inc., 561 F.2d 427,

429 (2d Cir. 1997); further citation omitted; further internal

quotation marks omitted); see also, e.g., Keenan, 2019 WL 3410006,

at *20 (“As an initial matter, ‘care of patients by doctors is not

a function that is ‘exclusively reserved by the state’’” (quoting

Herring, 2018 WL 7150387, at *5 (further citations omitted)).

Plaintiff offers no evidence to rebut this presumption. “Thus, in

the absence of any evidence to the contrary, the Court shall assume

the same in the more specific context of involuntary

hospitalizations.” Id. (citing Turturro v. Cont’l Airlines, 334

F. Supp. 2d 383, 396-97 (S.D.N.Y. 2004)). Given this dearth of

evidence, “Plaintiff has failed to establish [the Hospital

Defendants] acted at the behest of the State in a sense that would

render them subject to constitutional scrutiny.” Id. at *18.

Therefore, as a matter of law, no Section 1983 liability may be

claimed against the Hospital Defendants; accordingly, summary

judgment is awarded in the Hospital Defendants’ favor as to all of

Plaintiff’s federally based Causes of Action.

Furthermore, even if the Hospital Defendants were found

to be state actors, upon the summary judgment record presented,

qualified immunity would shield them from Section 1983 liability.

There is no dispute “Plaintiff did enjoy a clearly-established

right not to be hospitalized absent a showing of dangerousness.”

Jackson, 2018 WL 340014, at *20 (emphasis in original); see also

MHL § 9.37. However, in making their determination to commit

Plaintiff to Brunswick, the Hospital Doctors acted reasonably in

determining Plaintiff was a danger to herself. A state actor’s

decisions “must be viewed as objectively reasonable unless ‘no

[state actor] of reasonable competence could have made the same

choice in similar circumstances.’” Id. (quoting Green, 465 F.3d

at 92; further citation omitted).

Here, as to Onuogu, the undisputed facts establish he

acted reasonably in applying for Plaintiff’s commitment to

Brunswick pursuant to MHL § 9.37. There is ample competent,

undisputed evidence that Onuogu consulted collateral sources

regarding Plaintiff, as well as conducted his own face-to-face

evaluation of Plaintiff. (See supra BACKGROUND, Part I(B), at

10-11.) The record evidence further establishes that from both,

Onuogu determined Plaintiff as having major depressive disorder

and, after weighing Plaintiff’s risk and mitigating factors,

posing a substantial risk of danger to herself, thereby warranting

commitment. (See id. at 11-12.) Thus, Onuogu’s determination

regarding Plaintiff fell within acceptable clinical standards.

Indeed, at the very least, even applying the applicable medical

standards articulated by Stastny (see Stastny Decl. ¶¶ 9-18),

reasonable psychiatrists could disagree as to whether Plaintiff

was dangerous. (Cf. id. at ¶ 18 (“Professional standards further

require that psychiatrists make a reasoned assessment about the

magnitude of risk that a person poses. There are some instances

in which the level of risk is not so high or so low that reasonable

psychiatrists can, and will, disagree as to whether the patient is

dangerous.”).) To the extent Stastny contends Onuogu acted in a

manner falling below acceptable clinical standards, asserting

Onuogu failed to spend sufficient time with Plaintiff before making

his commitment determination, the Court rejects same. Stastny’s

position is flawed because he bases it upon Plaintiff’s

unsubstantiated claim that Onuogu spend no more than 10 minutes

with her in conducting a face-to-face evaluation. The undisputed

summary judgement record establishes otherwise. (See supra

BACKGROUND, Part I(B), at 10-12.) Hence, as a matter of law,

Onuogu would be entitled to qualified immunity from Plaintiff’s

Section 1983 claims. See Aouatif, 2019 WL 2410450, at *11; (see

also supra at 44-47 (articulating Court’s rationale for finding

Mustafa entitled to qualified immunity, which rationale the Court

finds equally applies here to Onuogu).

Similarly, as to Sial, the undisputed facts establish

she acted reasonably in continuing Plaintiff’s hospitalization at

Brunswick pursuant to MHL § 9.37. Again, the Court finds ample

competent, undisputed evidence as to Sial both consulting

collateral sources regarding Plaintiff, as well as conducting

several face-to-face evaluations of Plaintiff. (See supra

BACKGROUND, Part I(B), at 12-16.) Said evidence demonstrates Sial

determined Plaintiff to have major depressive disorder and, after

weighing Plaintiff’s risk and mitigating factors, posed a

substantial risk of danger to herself, thereby warranting

commitment. (See id. at 13-14.) Nothing in the record evidence

shows Sial’s determination regarding Plaintiff fell below

acceptable clinical standards; at most it evinces, reasonable

psychiatrists could disagree as to whether Plaintiff was

dangerous. This is so even, again, applying the applicable medical

standards articulated by Stastny. (See Stastny Decl. ¶¶ 9-18.)

And, for the same reason the Court rejected Stastny’s contention

that Onuogu acted in a manner falling below acceptable clinical

standards, i.e., not having spent sufficient time personally

evaluating Plaintiff, which the Court rejected as a flawed

assumption, it likewise rejects Stastny same claim of Sial spending

insufficient time with Plaintiff to properly evaluate Plaintiff.

(See supra at 44-47.) Thus, upon the record presented, Sial would

be entitled to qualified immunity from Plaintiff’s Section 1983

claims. See Aouatif, 2019 WL 2410450, at *11; (see also supra at

43 (articulating Court’s rationale for finding Mustafa entitled to

qualified immunity, which rationale the Court finds equally

applies here to Sial).

Regarding Plaintiff’s State Law Claims: While “the

district court[] shall have supplemental jurisdiction over all

other claims that are related to claims in the action within such

original jurisdiction that they form part of the same case or

controversy under Article III of the United States Constitution,”

in its discretion, the it “may decline to exercise supplemental

jurisdiction over a claim” where it “has dismissed all claims over

which it has original jurisdiction.” 28 U.S.C. § 1367(a), (c)(3);

see also Pension Benefit Guar. Corp. v. Morgan Stanley Inv. Mgmt.

Inc., 712 F.3d 705, 727 (2d Cir. 2013) (“It is well to recall that

‘in the usual case in which all federal-law claims are eliminated

before trial, the balance of factors to be considered under the

pendent jurisdiction doctrine—judicial economy, convenience,

fairness, and comity—will point toward declining to exercise

jurisdiction over the remaining state-law claims.’”); see also One

Communications Corp. v. J.P. Morgan SBIC LLC, 381 F. App’x 75, 82

(2d Cir. 2010) (“If all of a plaintiff’s federal claims are

dismissed, a district court is well within its discretion to

decline to assert supplemental jurisdiction over any state law

claims”). Here, having granted summary judgment in the Defendants’

favor dismissing all of Plaintiff’s Section 1983-based claims, the

Court finds the interest of judicial economy, convenience,

fairness, and comity weigh in favor of not exercising supplemental

jurisdiction over Plaintiff’s remaining state law claims against

all Defendants. See Keenan, 2019 WL 3410006, at *22 ( “[H]aving

determined that the [defendants] are entitled to summary judgment

on all of [plaintiff’s] § 1983 claims, the Court declines to

exercise supplemental jurisdiction over [plaintiff’s] remaining

state law claims.” (citations omitted)).

Finally, even if the Court did not decline supplemental

jurisdiction over Plaintiff’s state law claims, the Court would

find all Defendants are entitled to qualified immunity against

Plaintiff’s state law claims because the record evidence

established the Defendants acted reasonably, i.e., within accepted

clinical standard, in making their respective MHL § 9.37

determinations.18 See, e.g., Mesa, 2013 WL 31002, at *12 (finding,

where the state law “reasonableness standard is the same standard

18 The Court rejects Plaintiff’s reliance on the Applewhite case

for the proposition that “the government immunity doctrine ‘has no

application in cases where the State engages in a proprietary

function . . . such as providing medical and psychiatric care.’”

(Opp’n at 35 (quoting Applewhite, 21 N.Y.3d at 433).) The quoted

language from Applewhite comes from a concurrence opinion in which

the concurring judge stated: “I concur in the result, but not the

reasoning of the majority opinion.” Applewhite, 21 N.Y.3d at 432.

The Applewhite majority found the state actors, who were EMTs,

were performing a governmental function and therefore, were

entitled to immunity.

as that applied in federal qualified immunity analysis”, “where an

officer’s actions are deemed objectively reasonable, that officer

will be immune under both federal and state law”); see also Triolo

v. Nassau County, N.Y., No. 16-CV-2085, 2019 WL 5742623, *7

(E.D.N.Y. Nov. 4, 2019) (same; quoting Mesa), aff’d in part, 24

F.4th 98, 109-10 (2d Cir. 2022).

CONCLUSION

Accordingly, IT IS HEREBY ORDERED that:

I. As to Mustafa’s Summary Judgment Motion (ECF No. 116), it is

GRANTED; as a result:

(a) Plaintiff’s federal claims, i.e., her First and Fifth

Causes of Action, are dismissed with prejudice; and

(b) having declined to exercise supplemental jurisdiction

over Plaintiff’s state law claims, i.e., her Ninth,

Tenth, Twelfth, and Thirteenth Causes of Action, they

are dismissed without prejudice; and

II. As the Hospital Defendants’ Summary Judgment Motion (ECF No.

120), it is GRANTED; as a result:

(a) Plaintiff’s federal claims, i.e., her Fourth, Fifth,

Sixth, and Seventh Causes of Action, are dismissed with

prejudice; and

(b) having declined to exercise supplemental jurisdiction

over Plaintiff’s state law claims, i.e., her Eighth,

Tenth, Eleventh, Twelfth, and Thirteenth Causes of

Action, they are dismissed without prejudice; and

III. Once Judgment has entered, the Clerk of Court is directed to

CLOSE this case.

SO ORDERED.

/s/ JOANNA SEYBERT

JOANNA SEYBERT, U.S.D.J

Dated: March 28, 2024

Central Islip, New York