Milton v. McClintic

UNITED STATES DISTRICT COURT WESTERN

DISTRICT OF NEW YORK

___________________________________________

CRAIG R. MILTON,

DECISION AND ORDER

Plaintiff,

22-CV-6077L

v.

ELYSA McCLINTIC and WILLIAM McCLINTIC,

Defendants.

___________________________________________

Plaintiff Craig R. Milton, through counsel, brings this action against Elysa and William

McClintic, pursuant to 42 U.S.C. § 1983. Plaintiff alleges that both defendants are physicians

and that they violated his constitutional rights in connection with certain events that occurred

when he was receiving medical treatment in February 2019, as explained below.

Service of process has been effected on both defendants, but William McClintic has not

yet appeared in this action. Elysa McClintic (“Dr. McClintic”) has filed a motion to dismiss the

complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

BACKGROUND

The complaint alleges the following facts, which for purposes of the pending motion are

accepted as true. Plaintiff is a United States Navy veteran who resides in Elmira, New York. In

the past, he has received medical treatment at a health clinic in Elmira that is administered by the

Department of Veterans Affairs (“VA”).

On or about February 8, 2019, at the recommendation of an optometrist at the Elmira VA

Clinic, plaintiff underwent surgery to correct a medical problem around his eyes. The surgery

was performed by Dr. McClintic at Guthrie Robert Packer Hospital (“Packer”) in Sayre,

Pennsylvania, where Dr. McClintic was employed. Neither Packer nor Dr. McClintic have any

direct association with the VA.

On February 13, 2019, plaintiff saw Dr. McClintic at Packer for a followup visit. During

their conversation, he told her that although he was supposed to have been completely

anesthetized during the operation, he was awake during part of it, and that he was unable to speak

but he tried, unsuccessfully, to alert her to that fact by moving his arms and legs. He alleges that

although he was in “tremendous pain” during the procedure, and that at the followup visit he

thanked Dr. McClintic for working quickly so as not to “drag it out and make the surgery more

painful.” Complaint ¶¶ 14, 16.

At some point in the conversation, Dr. McClintic mentioned that she knew that plaintiff

carried a pistol in his pocket. Plaintiff, who at the time possessed both New York and

Pennsylvania “concealed carry” permits, said that he did, and removed what he describes as a

“miniature palm pistol” from his pocket. He alleges that he held it flat against his chest with one

hand, and with the other hand pointed out the various parts of the pistol. He explained that he

carried it for self-defense and that although he kept a spent round in the chamber, there were four

more live bullets in the gun. Dr. McClintic made no response other than to raise one eyebrow.

Shortly thereafter, the session came to an end, and plaintiff left.

A week later, plaintiff received a letter from the Bradford County (Pa.) Sheriff, which

“labeled [him] a ‘Danger to the General Public’” and directed him to turn over his Pennsylvania

-2-

pistol permit within five days. He called the sheriff, who told him that someone from the VA

had reported plaintiff for showing his pistol to Dr. McClintic. Id. ¶ 27.

Plaintiff states that based on reports that he has obtained from the Sayre Police

Department and the VA, he believes that the source of this report was William McClintic, who is

Dr. McClintic’s father-in-law. According to plaintiff, William McClintic, who is also a

physician, had previously worked at Packer, and at the time of these events was employed by the

VA. Plaintiff alleges that William McClintic, with the “encourage[ment]” of Dr. McClintic,

falsely reported that plaintiff had brandished a firearm on federal property, and threatened a

federal employee, i.e., Dr. McClintic, by pointing his pistol at her face. Plaintiff states that these

accusations were false not only because he did not point his gun at Dr. McClintic, but because

Packer is a private hospital not affiliated with the VA or any other federal agency, and because

Dr. McClintic is not a federal employee.

Plaintiff alleges that William McClintic’s report led to the issuance of a

disruptive-behavior report by the VA Health System, which repeated William McClintic’s

allegations and also falsely characterized plaintiff as having been “very upset, angry, shaking,

and unstable appearing” during the February 13 followup visit. The report also stated that Dr.

McClintic reported that plaintiff had been talking about his pistol and about knives while he was

sedated, during the surgery.

Apparently some report was made to officials in New York as well. On March 6, 2019,

Chemung County (N.Y.) Court Judge Christopher P. Baker issued an order suspending plaintiff’s

New York pistol permit and ordering him to surrender his registered pistols. The order was

-3-

carried out on March 15, 2019, by two Chemung County sheriff’s deputies who seized four

pistols registered to plaintiff.

Plaintiff had one more followup visit with Dr. McClintic on March 13, 2019, which

apparently went off without incident. From March 11, 2019 to January 30, 2020, he was barred

(apparently by the VA) from returning to the Elmira VA clinic for any reason. During that time,

he had to travel over forty miles to the Bath, New York VA Medical Center for medical care, and

he was required to notify local law enforcement prior to any visit there.

Based on these allegations, plaintiff asserts six claims for relief under § 1983, all of

which are asserted against both defendants: (1) malicious prosecution; (2) violation of his rights

to procedural and substantive due process; (3) conspiracy to violate plaintiff’s civil rights; (4)

denial of the “right to a fair proceeding,” in violation of the Fifth, Sixth and Fourteenth

Amendments; (5) violation of plaintiff’s Second Amendment right to keep and bear arms; and (6)

unlawful retaliation for plaintiff’s exercise of his right to free speech under the First Amendment.

DISCUSSION

I. State Actor Requirement

To plead a claim under § 1983, a plaintiff must allege that he was injured by a state actor

or a private party acting under the color of state law. Ciambriello v. Nassau, 292 F.3d 307, 323

(2d Cir. 2002). A private party acts under color of state law when there is such a close nexus

between her conduct and the state that the defendant’s conduct may fairly be treated as that of the

state itself. Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003). In support of her

motion to dismiss, Dr. McClintic asserts that plaintiff has not alleged facts sufficient to satisfy

-4-

this requirement. The Court agrees. Dr. McClintic clearly is not a state actor and her acts were

not such as to be tantamount to acts of a state employee.

Plaintiff, remarkably, concedes much in the complaint. Plaintiff expressly alleges that at

all relevant times, Dr. McClintic was a “private doctor,” not employed by the government, and

that the hospital where she worked, Packer, “was a private hospital not affiliated in any way with

the VA or any other Federal department in any way, shape, or form ... .” Complaint ¶ 30.

Accepting the truth of plaintiff’s allegations, it could hardly be any clearer that Dr. McClintic

could in no way be deemed a state actor. See Mir v. Kirchmeyer, No. 20-1659, 2021 WL

4484916, at *5 (2d Cir. Oct. 1, 2021) (“The Hospital defendants [employees of the hospital

where plaintiff worked, who allegedly conspired to deprive plaintiff of his right to practice

medicine] are private parties who are not liable under section 1983”).

In his response to the motion to dismiss, plaintiff states that Dr. McClintic can be

considered a state actor because she is alleged to have conspired with her father-in-law,

codefendant William McClintic, who at the time was a VA physician. Plaintiff also notes that

defendants did not simply accuse plaintiff of a crime; they reported that plaintiff had threatened a

federal employee with a firearm on federal property.

That argument is flawed in so many ways, it is difficult to know where to begin. For one

thing, even assuming that William McClintic was in fact employed by the VA and that his report

led the VA to take some action, he is not a state actor for purposes of § 1983. The word “state”

in “state actor” literally refers to the states of the Union and their political subdivisions, not to the

United States of America, i.e. the federal government. See Nghiem v. U.S. Dep’t of Veterans

Affairs, 323 F.App’x 16, 18 (2d Cir. 2009) (district court properly dismissed § 1983 claims

-5-

against VA employees because that statute applies only to state actors, not to federal officials);

Bozgoz v. James, No. 19-239, 2020 4732085, at *9 (D.D.C. Aug. 14, 2020) (“there are no state

actors named as defendants in the complaint–all defendants are federal employees. Thus, section

1983 does not apply”) (footnote omitted).

Perhaps unaware of this distinction, plaintiff has not argued that the Court should

construe the complaint as asserting a claim under Bivens v. Six Unknown Fed. Narcotics Agents,

403 U.S. 388 (1971), which is an analog to a § 1983 claim for claims against federal employees.

Even if the Court were to treat the complaint as asserting a Bivens claim, it would be subject to

dismissal. In Bivens, the Supreme Court “recognized an implied cause of action to recover

damages from federal officers who violate constitutional rights in only three narrow

circumstances,” none of which apply here. Elhady v. Unidentified CBP Agents, 18 F.4th 880,

883 (6th Cir. 2021).

Second, that defendants allegedly accused plaintiff of threatening a federal employee, or

possessing a firearm on federal property, is wholly irrelevant. Aside from the federal/state issue

explained above, the substance of an accusation does not determine whether the accuser is or is

not a state actor. Plaintiff must still allege some facts indicating that the party who made the

accusation “may fairly be said to be a state actor.” Grogan v. Blooming Grove Vol. Ambulance

Corps, 768 F.3d 259, 264 (2d Cir. 2014) (internal quotation omitted).

In addition, the mere fact that Elysa and William McClintic are alleged to have acted

jointly is not enough to hold Elysa McClintic liable under § 1983. Again, William is not a state

actor, but even if he were, or if the Court were to treat the complaint as asserting a Bivens claim,

see n.1 supra, plaintiff has not alleged sufficient facts to state a claim against Elysa. His

-6-

allegations that she misrepresented the facts and that she “encouraged” William McClintic to file

a report fall far short of what is required to state a § 1983 or Bivens claim against a private

citizen. See Akande v. Philips, 386 F.Supp.3d 281, 291 (W.D.N.Y. 2019) (conclusory allegations

of conspiracy between private parties and federal agents were insufficient to state a Bivens

claim); see also Andresen v. Diorio, 349 F.3d 8, 13 (1st Cir. 2003) (“[I]t is settled that the fact

that private parties give the police information on which official action is then taken does not by

itself convert the private parties into state actors”).

II. Other Matters

The absence of state action provides grounds enough to dismiss plaintiff’s claims against

Dr. McClintic, but the Court notes that the individual claims suffer from a host of other defects

as well. They do not merit a lengthy discussion, but the Court will briefly address them.

The malicious-prosecution claim fails because plaintiff has not alleged that any criminal

proceeding occurred as a result of defendants’ acts, much less that any such proceeding

terminated in his favor. See Frost v. N.Y.C. Police Dep’t, 980 F.3d 231, 242 (2d Cir. 2020);

Manganiello v. City of New York, 612 F.3d 149, 160-61 (2d Cir. 2010).

Plaintiff’s due process claim and his Second Amendment claim both arise out of the

suspension of plaintiff’s pistol permit and the confiscation of his handguns. Like his other

claims, these suffer from a number of defects. First, with respect to due process, plaintiff has no

constitutionally protected interest in possessing a permit to carry a handgun. See Weinstein v.

Krumpter, 386 F.Supp.3d 220, 234 (E.D.N.Y. 2019) (stating the plaintiff's “due process claim

-7-

regarding his handgun license and handguns do not state a claim” based on settled law that “there

is no protectible interest in a New York State-issued handgun license”).1

Second, even if plaintiff had a protected interest in the permit or in the guns themselves,

adequate process was available to him. Plaintiff has not even responded to defendant’s argument

that he could have challenged the suspension of his New York permit by means of an Article 78

proceeding. See Oquendo v. City of New York, 492 F.Supp.3d 20, 29 (E.D.N.Y. 2020) (“It is

well settled that an Article 78 proceeding ‘is an adequate remedy to challenge decisions with

respect to firearms licenses’”) (citing Johnson v. DeProspo, No. 19-cv-8426, 2019 WL 6311882,

at *4 (S.D.N.Y. Nov. 22, 2019) (collecting cases)).

Nor can a claim of a substantive due process violation be based on the facts alleged here.

To establish a deprivation of substantive due process, a plaintiff must allege governmental action

so egregious or outrageous that it can be said to “shock the contemporary conscience.” Pena v.

DePrisco, 432 F.3d 98, 112 (2d Cir. 2005). No such action has been alleged.

Plaintiff’s reliance on the Second Amendment fares no better. As the United States

Supreme Court has noted, “the right secured by the Second Amendment is not unlimited,” and is

“not a right to keep and carry any weapon whatsoever in any manner whatsoever and for

whatever purpose.” District of Columbia v. Heller, 554 U.S. 570, 626 (2008). From the

allegations of the complaint, it appears that plaintiff’s pistol permit was suspended based on

certain factual findings by the state court, made pursuant to state law. Plaintiff has alleged no

1 The complaint alleges that the Chemung County Court’s March 6, 2019 order “suspend[ed]” his New

York pistol permit. Complaint ¶ 36. Plaintiff has also submitted a copy of an order of that court dated October 21,

2021, denying plaintiff’s letter motion seeking “reconsideration of the suspension.” (Dkt. #8 at 4.) It is not apparent

how long the suspension was to last, but presumably it is not a permanent revocation.

-8-

facts indicating that the underlying laws and regulations are unconstitutional or that they were

applied in an unconstitutional manner. See Kachalsky v. County of Westchester, 701 F.3d 81 (2d

Cir. 2012) (upholding New York statute restricting individuals’ ability to carry handguns in

public).

In any event, Dr. McClintic did not make the decision to suspend plaintiff’s permit. She

reported an incident in which plaintiff allegedly brandished his pistol, and though plaintiff

disagrees with her account of what happened, by no stretch of the imagination could she be said

to have violated his rights under the Second Amendment. The connection between Dr.

McClintic’s report and the eventual suspension of plaintiff’s pistol permit, which was ordered by

a court, is far too attenuated to support a claim Second Amendment claim against her.

As indicated in the discussion of the state-actor requirement, there is no basis for a civil

rights conspiracy claim. A complaint alleging a § 1983 conspiracy must allege more than

“conclusory, vague, or general allegations that the defendants have engaged in a conspiracy to

deprive the plaintiff of his constitutional rights.” Ciambriello v. Cnty. of Nassau, 292 F.3d 307,

325 (2d Cir. 2002). Plaintiff’s allegation that Dr. McClintic “encouraged” William McClintic to

file a report falls far short of that standard.

Plaintiff’s fourth claim for relief is so poorly articulated that the Court is unsure what the

nature of the claim is supposed to be. It is essentially a hodgepodge of amorphous rights to

“justice” and “fair dealing.” To the extent that these fall under the rubric of due process, they are

subsumed in plaintiff’s due process claim, which has been addressed. To the extent that plaintiff

seeks to assert some ill-defined rights under the Sixth Amendment, that amendment only applies

to criminal proceedings, and there is no allegation that criminal proceedings were ever brought

-9-

against plaintiff in connection with these events. See Lopez v. City of New York, No.

05-CV-3624, 2007 WL 2228150, at *10 (E.D.N.Y. July 31, 2007) (the Sixth Amendment, by its

terms, “applies only to criminal proceedings”).

Plaintiff’s sixth claim for relief, alleging First Amendment retaliation, is patently

meritless. To establish such a claim, the plaintiff must show, inter alia, that he engaged in

protected speech. He has not done so. Plaintiff alleges that defendants took action against him,

in the form of a false allegation that he had threatened Dr. McClintic with a pistol, in retaliation

for certain statements that he made to her that defendants took to mean that he was dissatisfied

with how she performed the surgery. Even if that is exactly what happened, this was a

conversation between a private physician and her patient about his particular case. These events

in no way implicate the First Amendment’s guarantee of the right to free speech, free from

government interference.

In his response to the motion to dismiss, plaintiff contends that he has “sufficiently pled

an abuse of process claim,” even though by his own admission the phrase “abuse of process”

never appears in the complaint. Borrowing a principle more typically applied in the context of

pro se pleadings, plaintiff apparently thinks that the Court should read the complaint so

generously as to determine whether the basis for such a claim might be lurking among the facts

alleged, even though not expressly pleaded.

No such basis exists. An abuse of process claim brought under § 1983 is analyzed under

New York tort law, and requires that the defendant “(1) employs regularly issued legal process to

compel performance or forbearance of some act (2) with intent to do harm without excuse or

-10-

justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of

the process.” Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994).2

In order to state a § 1983 claim for abuse of process, the plaintiff must establish that the

defendants had an improper purpose in instigating the action and that they aimed to achieve a

collateral purpose beyond or in addition to the underlying proceeding. Morales v. City of New

York, 752 F.3d 234, 238 (2d Cir. 2014) (quoting Savino v. City of New York, 331 F.3d 63, 77 (2d

Cir. 2003)). An abuse of process cause of action therefore requires an ulterior purpose such as

“infliction of economic harm, extortion, blackmail and retribution.” Brandon v. City of New

York, 705 F.Supp.2d 261, 275 (S.D.N.Y. 2010). In addition, “[t]he pursuit of a collateral

objective must occur after the process is issued; the mere act of issuing process does not give rise

to a claim.” Lopez v. City of New York, 901 F.Supp. 684, 91 (S.D.N.Y. 1995).

In his memorandum of law–not in the complaint–plaintiff asserts that “Dr. McClintic

instigated legal process against Mr. Milton – i.e., the pistol permit revocation proceeding – by

falsely reporting to defendant William McClintic that Mr. Milton threatened her with a firearm.”

(Dkt. #8-1 at 18.) In other words, Dr. McClintic falsely told her father-in-law that plaintiff had

threatened her with a gun, he in turn filed a report with the VA and the local sheriff’s department,

and that eventually led to the pistol permit revocation proceeding. Plaintiff claims that

defendants’ motive in doing so was to discredit him, because they were afraid that he might bring

a malpractice action against Dr. McClintic. Id.

2 The New York Court of Appeals has described the tort of abuse of process as “seldom considered,”

“obscure,” and as “one which is rarely brought to the attention of the courts.” Board of Educ. of Farmingdale Union

Free Sch. Dist. v. Farmingdale Classroom Teachers Ass’n, Inc., 38 N.Y.2d 397, 399, 400 (1975).

-11-

That is not enough to make out a § 1983 claim for abuse of process. For one thing,

§ 1983 liability “may not be predicated on a claim of malicious abuse of civil process.” Wagner

v. Hyra, 518 F.Supp.3d 613, 627 (N.D.N.Y. 2021) (quoting Alroy v. City of N.Y. Law Dep’t, 69

F.Supp.3d 393, 402 (S.D.N.Y. 2014)). The pistol permit revocation proceedings were civil, not

criminal in nature. See Waltier v. NYPD, 856 F.Supp. 196, 200 (S.D.N.Y. 1994).

In addition, under New York law, the “[p]rocess” referred to in tort law is a “direction or

demand that the person to whom it is directed shall perform or refrain from the doing of some

prescribed act.” Williams v. Williams, 23 N.Y.2d 592, 596 (1969) (internal citation omitted).

Examples include “writs of attachment, execution, garnishment,” sequestration proceedings,

arrest or criminal prosecution, or “even such infrequent cases as the use of a subpoena for the

collection of a debt.” Id. at 610, n.1 (quotation marks and citation omitted); see also Greco v.

Christoffersen, 70 A.D.3d 769 (2d Dep’t 2010) (holding that “the mere commencement of a

lawsuit cannot serve as the basis for a cause of action alleging abuse of process” and that

interference with person or property comes from “resort to a provisional remedy, such as arrest,

attachment, injunction, receivership, or notice of pendency”).

Nothing of the kind has been alleged here. Even if Dr. McClintic misrepresented the

facts concerning plaintiff’s February 13 visit, she did not employ legal process at all, much less

to achieve some improper collateral end. See Tojek v. Harris, No. 19-CV-1470, 2021 WL

7904019, at *8 (W.D.N.Y. Sept. 23, 2021) (allegation that town supervisor’s submission of an

affidavit to a state official raising concerns about a town justice’s carrying of a firearm in the

town hall “did not constitute regularly issued legal process” sufficient to support an

abuse-of-process claim), R&R adopted in part, rejected on other grounds in part, 2022 WL

-12-

976941 (W.D.N.Y. Mar. 31, 2022). Plaintiff's request that he be allowed to amend the

complaint to add the words “abuse of process” is therefore denied, as such an amendment would

be futile.’

CONCLUSION

The motion to dismiss the complaint by defendant Elysa McClintic (Dkt. #4) is granted,

and the complaint is dismissed as to Elysa McClintic.

IT ISSO ORDERED.

DAVID G. LARIMER

United States District Judge

Dated: Rochester, New York

May 5, 2022.

> Although plaintiff does not assert a medical malpractice claim, I note his allegation that the surgery

performed by Dr. McClintic was “botched” and that as a result he has been forced to undergo further procedures,

including “electrocution” [sic]. Complaint § 40. To the extent that these allegations comprise part of plaintiff’ s

request for compensatory damages, they are not cognizable in this federal lawsuit, regardless of the merits of

plaintiff's claims.

-13-