Thomas v. Mohawk Valley Health System

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

CAROL THOMAS and GINA ANTONELLI, as the health

care proxies on behalf of patient Sharon Lucy Frederick,

6:20-cv-01347 (BKS/ML)

Plaintiffs,

v.

MOHAWK VALLEY HEALTH SYSTEM, ST.

ELIZABETH HOSPITAL, and DOES 1 through 10,

inclusive,

Defendants.

Appearances:

For Plaintiffs:

Raymond J. Dague

Dague & Martin, P.C.

4874 Onondaga Road

Syracuse, NY 13215

For Defendants:

Ryan M. Poplawski

Hancock Estabrook, LLP

1800 AXA Tower I

100 Madison Street

Syracuse, NY 13202

Hon. Brenda K. Sannes, United States District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On October 30, 2020, Plaintiffs Carol Thomas and Gina Antonelli, in their capacity as

health care proxies for Sharon Lucy Frederick, a patient at Defendant St. Elizabeth Hospital,

filed a complaint and motion for a Temporary Restraining Order (“TRO”), in which they seek an

order enjoining Defendants from removing ventilation from Ms. Frederick, requiring Defendants

to provide Ms. Frederick with a tracheostomy for proper ventilation and a gastric tube for

nutrition, and requiring Defendant St. Elizabeth Hospital to continue to provide cardiopulmonary

support, medications, nutrition and hydration to Ms. Frederick, at least until she can be

transferred to another health care facility. (Dkt. Nos. 1, 2). Plaintiffs assert claims under the First,

Fourth and Fourteenth Amendments of the United States Constitution; section 504 of the

Rehabilitation Act of 1973, 29 U.S.C. § 794 (the “Rehabilitation Act”); and the Americans with

Disabilities Act, 42 U.S.C. § 12101, et seq. (the “ADA”). (Dkt. No. 1, at 10-19). For the reasons

that follow, Plaintiffs’ motion for a TRO is denied.

II. BACKGROUND1

On September 17, 2020, Ms. Frederick suffered a severe stroke that caused her to become

mentally and physically incapacitated, and was admitted to St. Elizabeth Hospital2 (“St.

Elizabeth”) as a patient. (Dkt. No. 1, at 4). Since her admission to St. Elizabeth, Ms. Frederick

has been incapacitated and unable to communicate her wishes for medical treatment. (Id.). Her

wishes with respect to her medical care were set forth in her Advanced Written Directive, in

which she named Plaintiffs as her health care proxies, expressed her devout Roman Catholic

religious beliefs, and stated that she “believe[s] in life support” and that she wished to “follow

the moral teachings of the Catholic Church and to receive all the obligatory care that my faith

1 The facts set forth herein are drawn from Plaintiffs’ complaint, as well as the exhibits submitted by both parties in

connection with Plaintiffs’ motion for a TRO. (Dkt. Nos. 1, 2, 7-10).

2 Plaintiffs’ Complaint does not explain the relationship between Defendant Mohawk Valley Health System and

Defendant St. Elizabeth Hospital or distinguish between the two named Defendants with respect to the alleged

conduct, other than noting that the Mohawk Valley Health System receives state and federal funding that is used to

care for patients like Ms. Frederick. (Dkt. No. 1, at 3). The Court takes judicial notice of the fact that Defendant

Mohawk Valley Health System is an integrated non-profit healthcare system consisting of several associated

“campuses,” one of which is Defendant St. Elizabeth Hospital. See https://www.mvhealthsystem.org/about; see also

Wells Fargo Bank, N.A. v. Wrights Mill Holdings, LLC, 127 F.Supp.3d 156, 167 (noting that, for the purposes of a

motion to dismiss under Fed. R. Civ. P. 12(b)(6), “a court may take judicial notice of information publicly available

on a party’s website, as long as the website’s authenticity is not in dispute and ‘it is capable of accurate and ready

determination.’”)

teaches me we have a duty to accept,” but also acknowledged that “death need not be resisted by

any and every means” and that she had “the right to refuse medical treatment that is excessively

burdensome or would only prolong [her] death and delay [her] being taken to God.” (Dkt. No. 7-

3, at 1-2). Plaintiffs allege that Ms. Frederick has “time and time again expressed her wishes to

Plaintiffs, family, and friends that in the event she was unable to make her own health care

decisions, she wanted all possible care to be provided to her to sustain her life.” (Dkt. No. 1, at

5).

Plaintiffs allege that, despite Defendants’ awareness of Ms. Frederick’s wishes to receive

“all possible” life-sustaining care, as expressed through her Advanced Written Directive and

instructions from Plaintiffs as her health care proxies, they failed to provide Ms. Frederick with

basic nutrition from September 17 through September 22. (Id.). On September 21, an “apnea

test” was performed to evaluate whether Ms. Frederick was “brain dead” as defined in New York

law,3 despite a nurse’s observation on September 18 that Ms. Frederick did “not meet criteria for

brain death examination post-operatively,” and despite the fact that Plaintiffs had “vigorously

objected to this procedure” because of Ms. Frederick’s religious beliefs and the potential risks

the procedure posed to her health. (Id. at 5-6; Dkt. No. 9-1, at 237). Plaintiffs allege that,

throughout this period, Defendants “failed to keep Plaintiffs informed in a timely manner

regarding Sharon’s medical condition, failed to return phone calls made by Plaintiffs seeking

information, and failed to obtain Plaintiffs’ consent to treatment and procedures—and even lied

and violated Plaintiffs’ and Sharon’s express wishes.” (Dkt. No. 1, at 6).

3 A New York State Department of Health regulation, 10 N.Y.C.R.R. § 400.16, governs determinations of death.

Under § 400.16(a)(2), an individual who has sustained “irreversible cessation of all functions of the entire brain,

including the brain stem,” is dead. 10 N.Y.C.R.R. § 400.16(a)(2).

Following the apnea test, a representative from St. Elizabeth informed Plaintiffs that Ms.

Frederick had been determined to be “brain dead.” (Id.). On September 23, Plaintiffs met with

Dr. Stephan Hudyncia, a member of St. Elizabeth’s ethics committee, who informed them that

Plaintiff had been officially pronounced dead by hospital doctors. (Id.).4 Between September 23

and October 1, Defendants continued to provide Ms. Frederick with hydration and nutrition,

indicated that they would provide Ms. Frederick with a gastric tube and tracheostomy, and

expressed willingness to work with Plaintiffs to transfer Ms. Frederick to another facility of

Plaintiffs’ choosing. (Id. at 7). However, on October 1, Defendants’ counsel informed Plaintiffs

that, if Plaintiffs did not file an Order to Show Cause within 24 hours, Defendants would subject

Ms. Frederick to the “NYS Guidelines,” which would allow them to cease providing treatment,

nutrition, hydration and other care. (Id.).

On October 2, Plaintiffs filed a Petition and Order to Show Cause in New York State

Supreme Court for the County of Oneida (the “State Court”), in which they asked the Court to

declare Ms. Frederick’s death certificate null and void, and to require St. Elizabeth to continue to

provide treatment and care to her. (Dkt. No. 9-1, at 2-14). On October 9, Oneida County

Supreme Court Justice Patrick F. MacRae held an evidentiary hearing on the merits of Plaintiffs’

petition. (Dkt. No. 9-1, at 16-275). The State Court considered evidence submitted by the parties,

including Ms. Frederick’s complete set of medical records, as well as testimony from both

Plaintiffs, the doctor who had performed Ms. Frederick’s apnea test and determined that she was

brain dead, and Ms. Frederick’s attending physician at St. Elizabeth. (Id.). The State Court

4 Plaintiffs’ complaint alleges that, despite repeated requests, Defendants “have never produced a certificate of death

specifying a date and time of death.” (Dkt. No. 1, at 6-7). However, this is apparently incorrect, as Plaintiffs

themselves submitted Ms. Frederick’s death certificate, which lists her date and time of death as September 21, 2020

at 6:20 PM, into evidence during the October 9, 2020 evidentiary hearing discussed below. (Dkt. No. 9-1, at 31).

Defendants attached Ms. Frederick’s death certificate as an exhibit to their briefing on the present motion. (Dkt. No.

9-2, at 42),

declined to hear testimony from an expert witness proffered by Plaintiffs, Dr. Paul Byrne, on the

issues of whether Ms. Frederick met the criteria for “brain death” and whether Defendants’

provision of care to Ms. Frederick was proper, finding that he did not meet the relevant legal

standards to be qualified as an expert on those issues. (Id. at 148-51). The State Court also

declined to consider an affidavit from Plaintiffs’ second expert, Dr. Cicero Coimbra, on the

grounds that Dr. Coimbra was located in Brazil and could not be subjected to cross-examination,

and that the facts set forth in the affidavit were insufficient to qualify him as an expert on the

issue of whether Ms. Frederick met the criteria for “brain death” under New York law. (Id. at

151-53).5

Following the hearing, the State Court denied Plaintiffs’ petition. The State Court

observed that the language in Ms. Frederick’s Advanced Written Directive did not clearly state

what her wishes would be in the event that she was determined to be brain dead, and that

therefore, even giving full credit to Plaintiffs’ testimony regarding this issue,6 the State Court

“wasn’t able to reach a specific conclusion as to what [Ms. Frederick’s] intentions were.” (Id. at

234-36). The State Court further found that the medical records and testimony of the doctor who

conducted Ms. Frederick’s brain certification established that Ms. Frederick “was in a coma, that

she had no brain stem functions, and she was unable to respirate on her own, and the

combination of those, according to the New York State Guidelines, warrant the determination of

brain death, which is what the hospital was required to conclude.” (Id. at 238). Based on this

analysis, the State Court found that, under New York state law, it was “compelled to dismiss

5 Plaintiffs attach affidavits from both Dr. Byrne and Dr. Coimbra to their motion for a TRO. (Dkt. Nos. 2-1, 2-2).

6 While both Plaintiffs testified as to Ms. Frederick’s devout Roman Catholic beliefs and her general wishes to

receive all life-sustaining care possible, both acknowledged that they never specifically discussed with her what her

wishes would be in the event she was determined to be brain dead. (Dkt. No. 9-1, at 53-54, 90).

[Plaintiffs’] petition,” and that the decision about what to do next with respect to Ms. Frederick’s

care was “a decision to be made by the hospital.” (Id. at 238-39).

Plaintiffs filed a notice of appeal with the New York Appellate Division, Fourth

Department, and sought a discretionary stay pending appeal. On October 13, the Hon. Brian F.

DeJoseph issued an Order to Show Cause, temporarily staying enforcement of the State Court’s

order to allow the parties to fully brief the matter. (Dkt. No. 9-2, at 129). On October 29, after

the parties had briefed the issues, the Appellate Division issued an order denying Plaintiffs’

motion for a stay pending appeal, and providing that the Order to Show Cause would expire on

October 30, 2020 at 4:00 p.m. (Id.).

On October 30, before the expiration of the Order to Show Cause at 4:00 p.m., Plaintiffs

filed the complaint and motion for a TRO presently before the Court. (Dkt. Nos. 1, 2). Shortly

thereafter, the Court convened a teleconference among the parties, in which the Court questioned

whether Plaintiffs could show either a likelihood of success or serious questions on the merits of

their claims, as required for the entry of a TRO. The Court ordered expedited briefing on

Plaintiffs’ motion, with briefs from both parties due on November 2 by 10:00 a.m., and

Defendants agreed not to withdraw care for Ms. Frederick pending the outcome of that briefing.

The parties submitted briefing on November 2 as directed, (Dkt. Nos. 7-10), and the Court heard

oral argument that same afternoon. The Court denied the motion for a TRO at that hearing, and

indicated that a written decision would follow.

III. STANDARD OF REVIEW

Rule 65 of the Federal Rules of Civil Procedure governs temporary restraining orders and

preliminary injunctions. In the Second Circuit, the standard for issuance of a temporary

restraining order is the same as the standard for a preliminary injunction. Fairfield Cty. Med.

Ass’n v. United Healthcare of New Eng., 985 F. Supp. 2d 262, 270 (D. Conn. 2013), aff’d, 557 F.

App’x 53 (2d Cir. 2014); AFA Dispensing Grp. B.V. v. Anheuser-Busch, Inc., 740 F. Supp. 2d

465, 471 (S.D.N.Y. 2010) (“It is well established that the standard for an entry of a temporary

restraining order is the same as for a preliminary injunction.”). “A party seeking a preliminary

injunction must show (1) irreparable harm; (2) either a likelihood of success on the merits or

both serious questions on the merits and a balance of hardships decidedly favoring the moving

party; and (3) that a preliminary injunction is in the public interest.” N. Am. Soccer League, LLC

v. U.S. Soccer Fed’n, Inc., 883 F.3d 32, 37 (2d Cir. 2018).

Generally, preliminary injunctions are prohibitory or mandatory. Id. at 36. “Prohibitory

injunctions maintain the status quo pending resolution of the case; mandatory injunctions alter

it.” Id. The “status quo . . . is, ‘the last actual, peaceable uncontested status which preceded the

pending controversy.’” Id. at 37 (quoting Mastrio v. Sebelius, 768 F.3d 116, 120 (2d Cir. 2014)

(per curiam)). A party seeking a mandatory injunction “must meet a heightened legal standard by

showing ‘a clear or substantial likelihood of success on the merits.’” Id. (quoting N.Y. Civil

Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286, 294 (2d Cir. 2012).

Here, the injunctive relief Plaintiffs seek has both prohibitory and mandatory

components. The TRO Plaintiffs request would not only require Defendants to keep Ms.

Frederick on her ventilator and maintain her current level of care, but would also require them to

take affirmative, status-quo-altering actions such as providing her with a tracheostomy and

gastric tube. (Dkt. No. 2-4). However, regardless of which legal standard applies, Plaintiffs’

request for a TRO must be denied in its entirety because, as explained below, they have not

shown a serious question on the merits—the most permissive possible standard for granting

injunctive relief—with respect to any of their claims.

IV. ANALYSIS

A. Serious Questions on the Merits

At the initial teleconference on October 30, the Court expressed its questions about

whether Plaintiffs could demonstrate a likelihood of success or serious questions on the merits as

to any of their claims, and directed the parties to focus on this issue in their briefing. The Court

specifically asked the parties to focus on the questions of whether Defendants were acting under

color of state law (for purposes of Plaintiffs’ constitutional claims) and whether Defendants’

alleged misconduct (and the injunctive relief Plaintiffs sought) fell within the scope of the ADA

or the Rehabilitation Act.

In their brief, Defendants argue that Plaintiffs cannot succeed on the merits of their

constitutional claims because they have failed to show state action, and that they have also failed

to state a viable claim under the ADA and the Rehabilitation Act. (Dkt. No. 9, at 11-13).

Defendants also argue that Plaintiffs’ claims are barred under the Rooker-Feldman doctrine and,

alternatively, that the Court should follow the doctrine of Younger abstention and refrain from

resolving Plaintiffs’ claims. (Id. at 13-14). In their brief, Plaintiffs raise arguments that

Defendants failed to properly accommodate Plaintiffs’ religious beliefs as required by New York

law, and that Defendants’ conduct violated the First and Fourteenth Amendment.7 (Dkt. No. 7-1).

Plaintiffs also submit an affirmation from Dr. Matthew C. Lynch—an expert who did not testify

in the State Court proceedings—which analyzes Ms. Frederick’s medical records and concludes

that Defendants erred in declaring her “brain dead” as defined in New York law. (Dkt. No. 7-2).

However, neither in Plaintiffs’ briefing nor upon questioning at oral argument did Plaintiffs point

7 Plaintiffs’ brief does not address their ADA, Rehabilitation Act or Fourth Amendment claims.

to any authority addressing the specific questions raised by the Court, or the foregoing arguments

raised by Defendants.8

i. Rooker-Feldman Doctrine

“Rooker-Feldman bars the federal courts from exercising jurisdiction over claims

‘brought by state-court losers complaining of injuries caused by state-court judgments rendered

before the district court proceedings commenced and inviting district court review and rejection

of those judgments.’” Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70, 94 (2d Cir. 2015)

(quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)). The

Rooker-Feldman doctrine holds that lower federal courts lack “subject matter jurisdiction ‘over

cases that effectively seek review of judgments of state courts.’” Phifer v. City of New York, 289

F.3d 49, 55 (2d Cir. 2002) (quoting Moccio v. N.Y. State Office of Court Admin., 95 F.3d 195,

197 (2d Cir. 1996)). District courts “do not have jurisdiction . . . over challenges to state-court

decisions in particular cases arising out of judicial proceedings even if those challenges allege

that the state court's action was unconstitutional,” and “[r]eview of those decisions may be had

only” in the Supreme Court of the United States. D.C. Court of Appeals v. Feldman, 460 U.S.

462, 486 (1983); cf. 28 U.S.C. § 1257.

In Hoblock v. Albany County Board of Elections, the Second Circuit outlined the “four

requirements for the application of Rooker-Feldman”: “First, the federal-court plaintiff must

have lost in state court. Second, the plaintiff must complain[] of injuries caused by [a] state-court

judgment[.] Third, the plaintiff must invite district court review and rejection of [that] judgment[

]. Fourth, the state-court judgment must have been rendered before the district court proceeding

8 At oral argument, Plaintiffs referred the Court to Hensel v. City of Utica, No. 15-cv-0374, 2020 WL 1451579, 2020

U.S. Dist. LEXIS 51398 (N.D.N.Y. Mar. 25, 2020). However, the ADA claims at issue in Hensel are employment

discrimination claims that are inapposite to this case.

commenced.” 422 F.3d 77, 85 (2d Cir. 2005) (alterations in original) (internal quotation marks

omitted). A federal suit is “barred by Rooker-Feldman only if it complains of injury from the

state-court judgment and seeks review and rejection of that judgment, but not if it raises ‘some

independent claim.’” Id. at 86. “Just presenting in federal court a legal theory not raised in state

court, however, cannot insulate a federal plaintiff’s suit from Rooker-Feldman if the federal suit

nonetheless complains of injury from a state-court judgment and seeks to have that state-court

judgment reversed.” Id. “The following formula guides our inquiry: a federal suit complains of

injury from a state-court judgment, even if it appears to complain only of a third party’s actions,

when the third party’s actions are produced by a state-court judgment and not simply ratified,

acquiesced in, or left unpunished by it. Where a state-court judgment causes the challenged third-

party action, any challenge to that third-party action is necessarily the kind of challenge to the

state judgment that only the Supreme Court can hear.” Id. at 88.

Here, there is at least a question as to whether some of Plaintiffs’ claims are barred by the

Rooker-Feldman doctrine. Many of Plaintiffs’ core arguments—including their reliance on

affidavits from two experts who were rejected by the State Court, and one that never appeared in

State Court—seek to relitigate the issue of whether Defendants were correct to conclude that Ms.

Frederick met the criteria for “brain death” under New York law and issue a death certificate, an

issue that the State Court already considered and definitively resolved in Defendants’ favor.

(Dkt. No. 9-1, at 238). For purposes of their federal court complaint, Plaintiffs recast their claims

as claims alleging, essentially, that Defendants’ application of New York’s “determination of

death” statute, 10 N.Y.C.R.R. § 400.16, in Ms. Frederick’s case infringes on her constitutional

rights and violates federal statutes. But to the extent that, in substance, these claims seek reversal

of the State Court’s judgment that Ms. Frederick’s death certificate was properly issued and need

not be revoked (and that, as a result, St. Elizabeth may take whatever action it deems appropriate

with respect to Ms. Frederick’s care), arguably these claims constitute the type of de facto appeal

of the State Court judgment that is barred by Rooker-Feldman. Cf., e.g., McMath v. California,

No. 15-cv-06042, 2016 WL 7188019, at *5, 2016 U.S. Dist. LEXIS 171534, at *13-16 (N.D.

Cal. Dec. 12, 2016) (finding that the plaintiffs’ request for declaratory relief that patient was

never “brain dead” under California law was barred by Rooker-Feldman doctrine, but that claims

alleging the defendants’ failure to withdraw the patient’s death certificate based on new evidence

that was never before the State Court could proceed); Fonseca v. Kaiser Permanente Medical

Center Roseville, 222 F. Supp. 3d 850, 859 (E.D. Cal. 2016) (finding that the plaintiff’s claims

were not barred by Rooker-Feldman because they consisted primarily of facial, rather than as-

applied, challenges to the constitutionality of California’s brain death statute, and her claims

were “not presented to the state superior court and . . . the relief she now seeks does not

undermine the factual or legal conclusions the state court reached”).

Crucially, however, despite finding that Defendants’ declaration of death was proper

under New York law, the State Court did not order Defendants to remove Ms. Frederick from

life support, cease treating her, or take any other specific action—rather, the State Court made

clear that the decision about what further actions to take with respect to Ms. Frederick was up to

St. Elizabeth. (Dkt. No. 9-2, at 238-39). Therefore, Defendants’ decision to remove Ms.

Frederick from her ventilator and cease her treatment and care was not “produced” or “caused”

by the State Court’s judgment, but was “simply ratified, acquiesced in, or left unpunished by it.”

Hoblock, 422 F.3d at 88. Under the law of the Second Circuit, then, Plaintiffs’ claims—which,

on their face, claim that Defendants’ behavior, not the State Court judgment itself, violated the

constitution and federal statutes—do not appear to fall within the “narrow ground occupied by

Rooker-Feldman.” Exxon, 544 U.S. at 284.

In any event, even assuming Plaintiffs’ claims are not barred by the Rooker-Feldman

doctrine, and that this Court has subject matter jurisdiction over all of Plaintiffs’ claims, as

discussed below, Plaintiffs’ request for a TRO must be denied because they have not shown any

likelihood of success, or even a serious question, on the merits of any of their claims.9

ii. Constitutional Claims

Plaintiffs have not demonstrated a serious question on the merits of their First, Fourth and

Fourteenth Amendment claims because they have failed to produce any evidence or allegations

suggesting that Defendants’ alleged misconduct was done under color of state law. 42 U.S.C. §

1983 provides the statutory basis for Plaintiffs’ private causes of action for constitutional

violations. “To state a claim under § 1983, a plaintiff must allege that defendants violated

plaintiff’s federal rights while acting under color of state law.” McGugan v. Aldana-Bernier, 752

F.3d 224, 229 (2d Cir. 2014); see also Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d

Cir. 2002) (“In order to state a claim under § 1983, a plaintiff must allege that [s]he was injured

by either a state actor or a private party acting under color of state law.”); Am. Mfrs. Mut. Ins.

Co. v. Sullivan, 526 U.S. 40, 50 (1999) (noting that § 1983 “excludes from its reach merely

private conduct, no matter how discriminatory or wrongful”) (internal quotations marks omitted);

Carrillos v. Incorporated Vill. of Hempstead, 87 F. Supp. 3d 357, 371 (E.D.N.Y. 2015) (“A

private actor may be considered to be acting under the color of state law for purposes of Section

9 Defendants also argue that abstention under Younger v. Harris, 401 U.S. 37 (1971), is appropriate here given that

Plaintiffs’ appeal of the State Court’s dismissal of their Petition is ongoing and the case involves “important state

interests” regarding the application of a state determination of death statute. (Dkt. No. 9, at 14). The Court need not

decide whether Younger abstention is appropriate in this case because, as discussed below, Plaintiffs are not entitled

to a TRO even assuming it is proper for the Court to consider their claims.

1983 if she was ‘a willful participant in joint activity with the State or its agents.’ This potential

liability under Section 1983 also applies to a private party who conspires with a state official to

violate the plaintiff’s constitutional rights.” (quoting Ciambriello, 292 F.3d at 324)).

Plaintiffs’ only allegation with respect to state action is that at least one Defendant,

Mohawk Valley Health System, receives funding from the state and federal governments, which

is used to provide healthcare to patients like Ms. Frederick. (Dkt. No. 1, at 3). However, both

Defendants are private institutions, and the law in this Circuit is clear that “the mere fact that an

otherwise private institution receives public funding does not make it a state actor” for purposes

of constitutional claims. Corrente v. St. Joseph’s Hosp. & Health Ctr., 730 F. Supp. 493, 500

(N.D.N.Y. 1990); see also Law v. Camp, 15 F. App’x 24, 26 (2d Cir. 2001) (finding claim that

private hospital violated the Fourteenth Amendment by removing life support “meritless”

because the plaintiff “has failed to offer evidence sufficient to demonstrate state action”); Kia P.

v. McIntyre, 235 F.3d 749, 756 (2d Cir. 2000) (holding private hospital is not a state actor with

respect to its provision of medical care and, therefore, “[w]hatever misdeeds the Hospital

defendants may have committed in providing that care—if any there were—they are not

redressable under § 1983”). Because Plaintiffs put forth no additional facts suggesting that, at

any point, these private institutions acted under color of state law with respect to Ms. Frederick’s

medical care, Plaintiffs have presented no serious question as to whether they may be able to

assert successful constitutional claims against Defendants.

iii. Rehabilitation Act Claim

Plaintiffs’ Rehabilitation Act claim similarly fails to present any serious questions as to

the merits. “In order to establish a violation of § 504 [of the Rehabilitation Act], a plaintiff must

show (1) that he has a disability for purposes of the Rehabilitation Act, (2) that he is ‘otherwise

qualified’ for the benefit that has been denied, (3) that he has been ‘denied the benefits’ solely by

reason of his disability, and (4) that the benefit is part of a ‘program or activity receiving Federal

financial assistance.’” Flight v. Gloeckler, 68 F.3d 61, 63 (2d Cir. 1995) (citations omitted); see

also C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840-41 (2d Cir. 2014). “The

Rehabilitation Act, like the ADA, was never intended to apply to decisions involving the

termination of life support or medical treatment.” Schiavo ex rel Schindler v. Schiavo, 403 F.3d

1289, 1294 (11th Cir. 2005) (per curiam) (citing, inter alia, United States v. Univ. Hosp., State

Univ. of N.Y., 729 F.2d 144, 156 (2d Cir. 1984)); see also McGugan v. Aldana-Bernier, 752 F.3d

224, 234 (2d Cir. 2014) (holding that, in the medical treatment context, a plaintiff pleads an

actionable claim under the Rehabilitation Act only “if she alleges that the defendants made

treatment decisions based on factors that are ‘unrelated to, and thus improper to consideration

of’” proper medical decision-making about the patient’s case).

Here, even assuming the other elements of a Rehabilitation Act claim are met, Ms.

Frederick is not “otherwise qualified” within the meaning of the Rehabilitation Act for the life

support, care and treatment Defendants seek to deny her, because but for her alleged disability

(i.e. her coma and resulting brain death), she would not have needed or been eligible for these

services in the first place. See Schiavo, 403 F.3d at 1294. Furthermore, the allegations in the

Complaint do not suggest that Defendants’ decision to withdraw treatment from Ms. Frederick

was based on any improper or discriminatory factors. Rather, Defendants’ decision was based on

their medical determination that she is brain dead as defined in New York law, and their

application of New York State’s guidelines regarding the treatment of brain dead patients. Even

assuming Plaintiffs are correct that Defendants’ decisions were not medically sound and may

even constitute malpractice, they do not constitute the type of discrimination that gives rise to a

Rehabilitation Act claim. See McGugan, 752 F.3d at 232 (“Section 504 does not authorize a

claim for malpractice.”). Plaintiffs have pointed to contrary no authority that would support a

Rehabilitation Act claim in these circumstances. Therefore, no serious question exists as to the

merits of Plaintiffs’ Rehabilitation Act claim either.

iv. ADA Claim

Finally, Plaintiffs have not presented any serious question as to the merits of their ADA

claim. Plaintiffs bring their claim under Title III of the ADA, which provides that “[n]o

individual shall be discriminated against on the basis of disability in the full and equal enjoyment

of the goods, services, facilities, privileges, advantages, or accommodation of any place of public

accommodations by any person who owns, leases (or leases to), or operates a place of public

accommodation.” 42 U.S.C. § 12182(a).10 “The requirements for stating a claim under the ADA

are virtually identical to those under § 504 of the Rehabilitation Act.” Clarkson v. Coughlin, 898

F. Supp. 1019, 1037-38 (S.D.N.Y. 1995).

Here, as with Plaintiffs’ Rehabilitation Act claim, Plaintiffs’ ADA claim fails because

their Complaint does not allege discrimination on the basis of disability, as contemplated by the

ADA. As discussed above, based on Plaintiffs’ Complaint, Defendants did not decide to

withdraw life-sustaining care from Ms. Frederick because of discriminatory animus toward Ms.

Frederick’s disability, but because they had determined her to be brain dead pursuant to the

procedures set forth in New York state law and St. Elizabeth’s internal policies—a determination

the State Court has already sanctioned as legally permissible. Cf. Schiavo, 403 F.3d at 1294

10 Plaintiffs do not appear to assert a claim under Title II of the ADA, which governs discrimination by public

entities, but even if they did, such a claim would fail since Plaintiffs have failed to show that either Defendant

constitutes a “public entity” within the meaning of the ADA. See Green v. City of New York, 465 F.3d 65, 78-79 (2d

Cir. 2006) (finding that a private hospital is not a “public entity” for purposes of Title II of the ADA, despite

contracting with a municipality to provide services); Schiavo, 403 F.3d at 1293 (affirming District Court’s holding

that a hospice in receipt of federal funds was not a “public entity” for purposes of Title II of the ADA).

(finding hospice did not discriminate “on the basis of disability” by terminating a patient’s life-

sustaining care pursuant to a valid court order, rather than out of any discriminatory animus

toward the patient). At most, Plaintiffs’ Complaint alleges that Defendants’ actions constitute

medical malpractice in the course of Ms. Frederick’s treatment. These malpractice allegations do

not support an ADA claim. See Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (concluding

that the ADA “would not be violated by a prison’s simply failing to attend to the medical needs

of its disabled prisoners” and that the statute “does not create a remedy for medical

malpractice”); McGugan, 752 F.3d at 232 (relying on Bryant’s holding to reach a similar result

in analyzing the Rehabilitation Act). As with their Rehabilitation Act claim, Plaintiffs have

pointed to no contrary authority that would support an ADA claim in these circumstances.

Therefore, as with their other claims, Plaintiffs’ ADA claim fails to present a serious question

justifying injunctive relief.

B. Remaining Requirements for Injunctive Relief

Defendants also argue that Plaintiffs have failed to meet the irreparable harm, balancing

of the equities, or public interest prongs of the standard for granting a TRO. (Dkt. No. 9, at 11,

15). The Court recognizes that, notwithstanding Defendants’ argument that there can be no

irreparable harm where Ms. Frederick is brain dead and has no reasonable chance of recovery,

(Dkt. No. 9, at 11), the irreparable harm from denying Plaintiffs’ requested TRO appears extreme

and obvious. Without that TRO, Defendants will be free to withdraw the life support services

keeping Ms. Frederick’s body functioning, causing her body to permanently expire. At that

point, Plaintiffs’ death will be final and beyond all hope of being undone through subsequent

decisions by this or any other Court.

As such, the Court recognizes the gravity of its decision, and sympathizes with Plaintiffs’

desire to seek relief in a heartbreaking situation. However, even in these tragic circumstances,

the Court is bound to act within the limits of its authority, and as such, may only grant a TRO if

Plaintiffs have raised a serious, genuine question as to the merits of one or more of their claims.

Because, for the reasons discussed above, Plaintiffs have not done so here, this Court is

compelled to deny their request for a TRO."!

V. CONCLUSION

For these reasons, it is

ORDERED that Plaintiffs’ motion for a TRO (Dkt. No. 2) is DENIED.

IT IS SO ORDERED.

Time: 2:01PM

Dated: November 5, 2020

Syracuse, New York

Brenda K. Sannes

U.S. District Judge

Following oral argument, after stating its intention to deny Plaintiffs’ motion for a TRO, the Court indicated that it

would be willing to consider granting a brief injunction in order to give Plaintiffs time to pursue an emergency

appeal in the Second Circuit, upon the posting of a security bond. See Fed. R. Civ. P. 62(d) (‘While an appeal is

pending from an interlocutory order or final judgment that grants, continues, modifies, refuses, dissolves, or refuses

to dissolve or modify an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond

or other terms that secure the opposing party’s rights.”); Canadian St. Regis Band of Mohawk Indians ex rel. Francis

v. Town of Bombay, NY, 484 F. App’x. 586, 588 (2d Cir. 2012) (explaining that, while the “denial of a TRO is

‘ordinarily not appealable,’” “[a] narrow exception has been established where the district court’s order effectively

disposes of the litigation and ‘might have a serious, perhaps irreparable, consequence, [that] .. . can be effectually

challenged only by immediate appeal[.]’” (alterations in original) (citations omitted)). However, Plaintiffs informed

the Court that they do not intend to appeal the Court’s decision.

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