# Rene v. Mustafa

> District Court, E.D. New York · March 28, 2024

URL: https://www.frixlaw.com/law-library/cases/10311604

## Case

- **Court:** District Court, E.D. New York
- **Decided:** March 28, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10311604

## How later opinions describe it (automated extraction)

- finding no dispute that Stony Brook is a public institution
- 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

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------x
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.
----------------------------------x
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10311604. Public record. Not legal advice.