Appendix — Applewhitewhite v. Briber (No. 07-989)

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 06-1923-cv

MONICA J. APPLEWHITE,

Plaintiff-Appellant,

Vv.

ROBERT BRIBER, et ai.,

Defendant-Appellee.

October 29, 2007

Before: FEINBERG, WINTER and STRAUB, Circuit

Judges.

Per Curiam:

Plaintiff-Appellant Monica J. Applewhite appeals

from a judgment of the Western District of New

York (John T. Curtin, Judge), dismissing her action

on motions to dismiss of all Defendants-Appellees.

Applewhite claims that Defendants-Appellees de-

prived her of property in the form of her medical

license without due process in violation of 42 U.S.C.

§§ 1981, 1983.

In addition, Applewhite claims that Defendants-

Appellees engaged in race discrimination against

her in violation of § 1983. The District Court granted

Defendants-Appellees’ motions to dismiss on the

grounds of absolute judicial immunity, statute of

limitations and failure to state a claim.

2a

For substantially the reasons stated by the District

Court, we hereby affirm the District Court’s opinion.

We write only to note that absolute judicial immunity

attaches to a state medical review board’s disci-

plinary proceeding where, as here, the individual

charged has the right to be represented by counsel, to

present evidence and to cross-examine witnesses,

and where the board articulates its findings and

conclusions in a binding order—as opposed to a mere

recommendation—under a preponderance of the

evidence standard. See N.Y. Public Health Law

§§ 230(10Xc), (e), (, (g). Our sister circuits that have

considered claims of judicial immunity in similar con-

texts have reached the same conclusion. See, e.g.,

Guttman v. Khalsa, 446 F.3d 1027, 1032-34 (10th

Cir. 2006); Olsen v. Idaho State Bd. of Med., 363 F.3d

916, 923-26 (9th Cir. 2004); Wang v. N.H. Bd. of

Registration in Med., 55 F.3d 698, 701 (1st Cir. 1995).

Applewhite relies on our decision in DiBlasio v.

Novello, 344 F.3d 292, 296-302 (2d Cir. 2003), cert.

denied, 541 U.S. 988, 124 S. Ct. 2018, 158 L. Ed. 2d

492 (2004), to argue that the disciplinary proceeding

at issue in this case should not receive absolute judi-

cial immunity. However, DiBlasio did not involve the

revocation of a medical license. Instead, the plaintiff

in DiBlasio challenged the decision by the New York

State Department of Health to suspend his license.

344 F.3d at 295. In concluding that officials involved

in such a proceeding do not deserve absolute judicial

immunity, we stated that the procedures governing

such summary suspensions “lackled] the hallmarks

and safeguards of a judicial proceeding that would

render absolute immunity for those officials involved

appropriate.” Jd. at 299 (examining the factors rele-

vant to applying judicial immunity discussed in Butz

3a

v. Economou, 438 U.S. 478, 98 S. Ct. 2894, 57 L. Ed.

2d 895 (1978)).’

We conclude that DiBlasio does not control here

because summary suspensions and revocations of

medical licenses in New York involve altogether sepa-

rate and distinguishable proceedings. Compare N.Y.

Public Health Law § 230(10) (providing procedures

for revocations of medical licenses) with § 230(12)

(summary suspensions). While a board independent

of the Commissioner of the Department of Health

(the “commissioner”) decides whether to revoke a

medical license, the commissioner exercises her “vir-

tually unfettered authority” to accept the recom-

mendation of the suspension hearing committee—

a panel appointed predominantly by the commis-

sioner. DiBlasio, 344 F.3d at 299 (discussing the

“absence of meaningful safeguards against arbitrary

executive action in a summary suspension proceed-

ing’). Furthermore, in contrast to the administrative

review available after a license revocation, see N.Y.

Public Health Law § 230(10)(G), there is no “mean-

ingful review of the summary suspension because

. . the commissioner is free to ignore” any later

recommendation by the same committee to terminate

the suspension. DiBlasio, 344 F.3d at 299. Therefore,

our conclusion here that absolute judicial immunity

attaches to medical license revocation proceedings

pursuant to New York Public Health Law § 230(10)

does not affect our earlier conclusion that such im-

' Our decision in DiBlasio is apposite only as far as Defen-

dant-Appellee Novello’s decision to suspend Applewhite’s license

is concerned. However, Defendants-Appellees do not argue that

Defendant Novello is entitled to absolute judicial immunity. In

any case, the claims against Novello were properly dismissed by

the District Court on statute of limitations grounds.

4a

munity does not attach to summary suspension pro-

ceedings under § 230(12).

For the foregoing reasons, we AFFIRM the judg-

ment of the District Court.

5a

APPENDIX B

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

03-CV-0954C(SC)

MONICA J. APPLEWHITE,

Plaintiff,

-VS-

ROBERT BRIBER, et ail.,

Defendants.

INTRODUCTION

In this action, brought pursuant to Title 28 U.S.C.

§§ 1981 and 1983, plaintiff seeks compensatory dam-

ages for the revocation of her license to practice

medicine. The defendants are individuals sued in

both their personal and official capacities who, while

employed by the New York State Department of

Health and/or the Office of Professional Medical

Conduct (“OPMC”), were involved in the revocation of

plaintiffs medical license. This matter is now before

the court on the defendants’ motions to dismiss the

complaint and/or for summary judgment.’

' The court notes that despite plaintiffs failure to challenge

the revocation of her license to practice medicine in a proceeding

pursuant to N.Y.C.P.L.R. Article 78, this court has jurisdiction

over her claims. See Patsy v. Board of Regents, 457 U.S. 496,

500-01 (1982); Monroe v. Pape, 365 U.S. 167, 183 (1961); Krae-

bel v. NYC Dep’t of Housing, 959 F.2d 395, 404 (2d Cir. 1992).

6a

BACKGROUND

Plaintiff commenced this action with the filing of a

complaint on December 24, 2903 (Item 1). On April

15, 2004, in lieu of an answer, defendants Briber,

Lynch, Nichols, Novello, and Wear filed a motion to

dismiss on the grounds of judicial immunity and

statute of limitations (Item 6). Defendants Croll and

Horan filed a motion to dismiss (Item 9), and defen-

dant Ciccarella filed a motion for summary judgment

for plaintiffs failure to state a claim (Item 10). Defen-

dant Trost filed a motion to dismiss and/or for sum-

mary judgment on the basis of judicial immunity

(Item 18), and defendants Grossman, Pellman, Price,

and Rogers filed a motion to dismiss on the basis of

judicial immunity (Item 20). Defendant Kohn filed a

motion for summary judgment on statute of limita-

tions grounds and for plaintiffs failure to state a

claim (Item 22). Plaintiff filed a memorandum in

opposition to the various motions to dismiss and for

summary judgment (Item 30). All defendants filed

replies (Items 32, 33, 37).

On December 14, 2004, plaintiff filed an amended

complaint, in which she discontinued her claims

against defendants Fein and Pellman for lack of ser-

vice, withdrew her claims under New York State law,

and added a claim pursuant to 28 U.S.C. § 1981 for

race discrimination. Defendant Trost filed a motion

to dismiss the amended complaint (Item 43), and the

remaining defendants filed a motion to dismiss and

for summary judgment (Item 44). Plaintiff filed a

response to the motions on January 24, 2005 (Item

48). On February 7, 2005, the defendants, with the

exception of defendant Trost, filed a reply memoran-

dum of law (Item 49). Oral argument was heard on

June 29, 2005. Thereafter, the parties accepted the

7a

court’s invitation to file a further submission (Items

55, 59). For the reasons that follow, the motions are

GRANTED, and the complaint is dismissed.

FACTS

Plaintiff was a physician licensed by the State of

New York in the field of obstetrics and gynecology

(Item 39, 99 18-20). In the fall of 1998, plaintiff

learned that she was the subject of an investigation

by the OPMC. TId., {9 21-25. Plaintiff provided

patient medical records and other information, and

appeared for interviews with investigative staff of the

OPMC, including defendants Ciccarella and Kohn.

Id., 19 27, 30, 38, 42. On or about June 27, 2000,

plaintiff received a statement accusing her of 23

charges of misconduct, her medical license was sum-

marily suspended by defendant Novello, and she was

directed to appear at a hearing. Id., {J 53-56.

The hearing commenced on August 25, 2000 and

continued on fifteen additional dates until November

9, 2001. Item 39, J 61. Defendants Rogers, Nichols,

and Wear were members of the hearing committee,

and defendant Trost was the Administrative Officer.

Id., § 60. On or about March 27, 2002, plaintiff was

advised that the committee had voted toe sustain 1i

of the 23 charges of professional misconduct and

determined that her license should be revoked. Jd.,

q 69. On April 10, 2002, plaintiff appealed this de-

termination to the Administrative Review Board

(“ARB”) of the OPMC. Id., J 70. On July 29, 2002, the

ARB, of which defendants Grossman, Briber, Lynch,

and Price were members, affirmed the hearing com-

mittee’s decision. Jd., J 71. Defendant Horan pre-

pared the ARB decision. Jd., { 72. Plaintiff alleges

that she was targeted for investigation by the OPMC

8a

in part because she was a sole practitioner and a

member of a racial minority. Id., | 73.

DISCUSSION

1. Standards of Review

Under Federal Rule of Civil Procedure 12(b)(6), a

court may dismiss a complaint only if it is clear that

no relief could be granted under any set of facts

that could be proved consistent with the allegations.

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514

(2002). “This rule applies with particular force where

the plaintiff alleges civil rights violations : . .

Chance ov. Armstrong, 143 F.3d 698, 701 (2d Cir.

1998). When reviewing a motion to dismiss under

Rule 12(b)(6), a district court must accept the alle-

gations contained in the complaint as true and draw

all reasonable inferences in favor of the nonmoving

party. Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir.

1999), cert. denied, 531 U.S. 1052 (2000). “However,

conclusory allegations or legal conclusions masque-

-rading as factual conclusions will not suffice to

prevent a motion to dismiss.” Smith v. Local 819 I.B.

T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002)

(citation and quotation omitted); see also Wynder

v. McMahon, 360 F.3d 73, 80 (2d Cir. 2004) (Rule

12(b)(6) motions permit each particular defendant to

eliminate causes of action for which no set of facts

has been identified that support the claim(s) against

him).

The task of the court in addressing the Rule 12(b)(6)

motion is not to determine the weight of the evidence,

but only to assess the legal feasibility of the com-

plaint. Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000).

In reaching its determination, a court’s review must

be limited to the complaint and documents attached

9a

or incorporated by reference thereto. See Kramer uv.

Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991).

Federal Rule of Civil Procedure 56(c) provides that

summary judgment is warranted where the “plead-

ings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to

a judgment as a matter of law.” A “genuine issue”

exists “if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A fact is “material” if it “might affect the

outcome of the suit under the governing law... .” Jd.

In deciding a motion for summary judgment, the

evidence and the inferences drawn from the evidence

must be “viewed in the light most favorable to the

party opposing the motion .. . .” Adickes v. S.H. Kress

& Co., 398 U.S. 144, 158-59 (1970). “Only when

reasonable minds could not differ as to the import of

evidence is summary judgment proper.” Bryant v.

Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied,

502 U.S. 849 (1991). The function of the court is not

“to weigh the evidence and determine the truth of the

matter but to determine whether there is a genuine

issue for trial.” Anderson, 477 U.S. at 249. Moreover,

a pre-discovery motion, as in this case, should be

viewed with significant caution. See Serendip LLC

v. Franchise Pictures LLC, 2000 WL 1277370, at *8

(S.D.N.Y. September 7, 2000).

2. Judicial Immunity

Defendants Briber, Lynch, Nichols, Wear, Gross-

man, Price, Rogers, Horan, and Trost argue that the

complaint against them should be dismissed pur-

suant to Fed. R. Civ. P. 12(b)(6) because they are

10a

shielded by absolute judicial immunity. Defendants

Briber, Lynch, Nichols, Wear, Grossman, Price, and

Rogers are all employees of the OPMC, either as

members of the hearing committee that heard the

charges against plaintiff and determined that her

medical license should be revoked, or the ARB that

upheld the committee’s determination. Defendant

Trost contends that he is protected by judicial im-

munity in his role as the Administrative Officer at

plaintiffs hearing. Defendant Horan claims im-

munity for his actions in aiding the ARB in drafting

its decision.

“(I]t is a general principle of the highest impor-

tance to the proper administration of justice that a

judicial officer, in exercising the authority vested in

him, shall be free to act upon his own convictions,

without apprehension of personal consequences to

himself.” Mireles v. Waco, 502 U.S. 9, 10 (1991) (quot-

ing Bradley v. Fisher, 80 U.S. 335 (1871)). Judicial

immunity, like other forms of official immunity, is

immunity from suit, not just from the ultimate as-

sessment of damages. Mitchell v. Forsythe, 472 US.

511, 526 (1985). Thus, “[judicial] immunity applies

even when the judge is accused of acting maliciously

and corruptly.” Imbler v. Pachtman, 424 U.S. 409,

418 n.12 (1976); see also Stump v. Sparkman, 435

U.S. 349, 356-57 (1978) (immunity is not lost where

judge acted in error, maliciously, or in excess of his

authority).

Absolute immunity has also been extended to

agency officials who perform functions analogous to

those of a prosecutor or a judge. Butz v. Economou,

438 U.S. 478, 515 (1978). As the defendants acknow]l-

edge, the Second Circuit has held that the summary

suspension of a medical license pursuant to N.Y.

lla

Public Health Law § 230(12)(a) is not sufficiently

similar to a judicial proceeding to warrant granting

absolute immunity to defendant Novello, the Com-

missioner of the Department of Health, for her role

in the summary suspension of plaintiffs medical

license. See DiBlasio v. Novello, 344 F.3d 292, 296-

302 (2d Cir. 2003), cert. denied, 541 U.S. 988 (2004).

However, medical professional misconduct proceed-

ings pursuant to Public Health Law § 230(10) that

can result in license revocation are sufficiently analo-

gous to judicial proceedings, and the role of board

members sufficiently comparable to that of a judge, to

afford members of the OPMC absolute immunity. See

Yoonessi v. New York State Bd. for Professional

Medical Conduct, 2005 WL 645223 (W.D.N.Y. March

25, 2005), affd, 2006 WL 93089 (2d Cir. January 12,

2006).

In Yoonessi, in order to. determine whether the

OPMC defendants were entitled to absolute immu-

nity, the District Court assessed the OPMC discipli-

nary process in light of the six factors identified in

Butz: (a) the need to assure that the individual can

perform his functions without harassment or intim-

idation; (b) the presence of safeguards that reduce

the need for private damages actions as a means

of controlling unconstitutional conduct; (c) insulation

from political influence; (d) the importance of pre-

cedent; (e) the adversary nature of the process; and

(f) the correctability of error on appeal. Cleavinger v.

Saxner, 474 U.S. 193, 202 (1985) (citing Butz, 438

U.S. at 512). The court found that in contrast to

the summary suspension procedures examined in

DiBlasio, the procedures attendant to disciplinary

hearings weigh in favor of absolute immunity.

Yoonessi, 2005 WL 645228, at *12. Specifically, the

court found that a disciplinary proceeding that can

Ri

12a

result in the revocation of a medical license is “likely

to stimulate “harassment and intimidation” in the

form of a litigious reaction from [a] disappointed

physician.” Jd., (quoting DiBlasio, 344 F.3d at 298).

Additionally, the adversarial nature of a OPMC dis-

ciplinary hearing is akin to that of a judicial pro-

ceeding, while a number of safeguards diminish the

chance of constitutional errors. These safeguards

include legal rulings made by an administrative offi-

cer licensed to practice law in the state of New York,

the right of the individual charged to be represented

by counsel, produce witnesses and evidence, cross-

examine witnesses, and have subpoenas issued, ad-

herence to a preponderance of the evidence standard,

and the production of a stenographic record of the

hearing. See N.Y. Public Health Law §§ 230(10)(c),

(e), (f). Additionally, the committee prepares findings,

conclusions, determinations, and an order, as op-

posed to summary proceedings wherein the commit-

tee simply makes a recommendation which the Com-

missioner of the Department of Health may reject.

See N.Y. Public Health Law §§ 230(10)(g), (I); Yoonessi,

2005 WL 645223, *13. Finally, the court considered

the hearing committee’s ability to remain independ-

ent of the influence of the Commissioner. The court

found that as remuneration for OPMC work is lim-

ited by statute on both a per diem and annual basis,

OPMC members are unlikely to act out of dependence

upon the Commissioner’s “goodwill.” Id.; see also N.Y.

Public Health Law § 230(3). Additionally,

{t]he hearing committee in a disciplinary pro-

ceeding makes a determination rather than a

recommendation and is thus assured at the

outset of its ability to render an independent

decision. Moreover, a hearing committee’s deter-

mination can be reviewed, at the charged physi-

13a

cian’s request, by the administrative review board

for professional medical conduct. The review

board is appointed by the governor, not the

Commissioner, and has the authority to review

and remand cases for reconsideration or further

proceedings. A physician may also seek annul-.

ment of an adverse determination through the

state courts .... Thus, there is a meaningful

opportunity to correct a biased determination or

unconstitutional conduct.

Id. (internal cites omitted).

Accordingly, this court concludes that the proce-

dures governing disciplinary hearings are sufficiently

analogous to judicial proceedings, and the role of

board members sufficiently comparable to that of a

judge, to afford the OPMC defendants absolute im-

munity. See Butz, 438 U.S. 478 (Department of Agri-

culture administrative hearing); Mishler v. Clift, 191

F.3d 998, 1008 (9th Cir. 1999) (members of Nevada

Board of Medical Examiners absolutely immune from

suit relative to their participation in disciplinary

charges and proceedings); Osirzenski v. Seigel, 177

F.3d 245, 249 (4th Cir. 1999) (“Every court of appeals

that has addressed the issue has concluded that

members of a stute medical disciplinary board are

entitled to absolute quasi-judicial immunity for per-

forming judicial or prosecutorial functions.”) (cita-

tions omitted).

Likewise, defendant Horan, who is sued for having

drafted the ARB decision, is also entitled to absolute

quasi-judicial immunity as a staff assistant to the

ARB. Horan’s duties are best compared to those of a

law clerk, in that he drafted the decision and order

for the decision-making body. The Second Circuit

affords judicial immunity to court support staff, as

l4a

court staff members undertake their actions at the

direction of a judicial officer. See Rodriguez v. Weprin,

116 F.3d 62, 66 (2d Cir. 1997) (docket clerks immune

from suit); Oliva v. Heller, 839 F.2d 37, 40 (2d Cir.

1988) (law clerks immune from suit). Additionally,

other district and circuit courts have held that a

state’s medical board, its disciplinary subsidiary, and

its members, professional staff, and counsel are enti-

tled to absolute immunity for acts which are directly

related to their adjudicatory function and the ulti-

mate resolution of the disciplinary dispute at issue.

Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916,

925-26 (9th Cir. 2004) (staff members associated with

state health professional boards also receive absolute

immunity for their actions connected to a board’s

disciplinary proceedings); see also O’Neal v. Missis-

sippi Bd. of Nursing, 113 F.3d 62, 66 (5th Cir. 1997)

(nursing board members and executive director

absolutely immune); Wang v. New Hampshire Bd. of

Registration in Med., 55 F.3d 698, 702 (1st Cir. 1995)

(medical board’s counsel and professional staff enti-

tled to absolute immunity for investigation surround-

ing disciplinary complaint); Betten-court v. Bd. of

Registration in Med., 904 F.2d 772, 782-83 (1st Cir.

1990) (board officials and staff members are abso-

lutely immune from suit by physician whose license

was revoked); Howard v. Miller, 870 F. Supp. 340

(N.D.Ga. 1994) (executive director and secretary im-

mune from liability). Thus, defendant Horan, who

served as a staff assistant to the ARB in drafting

its decision, is entitled to absolute quasi-judicial

immunity.

Finally, defendant Trost, who served as the Admin-

istrative Officer at plaintiffs disciplinary hearing, is

entitled to absolute judicial immunity for the same

reasons as the OPMC defendants. New York Public

15a

Health Law § 230(10)e) provides that the Commis-

sioner shall designate an administrative officer,

admitted to practice law in the state of New York, to

rule on all motions, procedures, and legal objections

and draft the conclusions of the hearing committee.

The administrative officer is not entitled to vote on

the charges. Thus, Trost’s actions for the hearing

committee were “functionally comparable” to that of

a judge. Butz, 438 U.S. at 513; see also Imbler v.

Pachtman, 424 U.S. at 423 n.20; Young v. Selsky, 41

F.3d 47, 51 (2d Cir. 1994), cert. denied, 514 U.S. 1102

(1995).

Accordingly, the defendants’ motion to dismiss on

the basis of judicial immunity is granted, and the

complaint is dismissed with prejudice as to defen-

dants Briber, Lynch, Nichols, Wear, Grossman, Price,

Rogers, Horan, and Trost.

3. Statute of Limitations

Defendants Novello, Croll, Ciccarella, and Kohn

argue that the claims against them are untimely and

must be dismissed. They contend that the actions

they are alleged to have taken occurred more than

three years prior to the commencement of this law-

suit. Defendant Novello was the Commissioner of the

New York State Department of Health. Defendants

Ciccarella and Croll were investigators with the

Department’s Office of Professional Medical Conduct

(“OPMC”), and defendant Kohn was the Medical

Coordinator of the OPMC.’

* The court notes that the defendants have been sued in both

their official and personal capacities. As plaintiff seeks only

money damages, the claims against the defendants in their

official capacities are essentially claims against the State and

are barred by the Eleventh Amendment. See K & A Radiologic

16a

Plaintiff has alleged violations of the United States

Constitution, which are pursued through Title 42

U.S.C. § 1983, and a claim of race discrimination

pursuant to § 1981. The statute of limitations ap-

plicable to claims brought pursuant to §§ 1981 and

1983 in New York is three years. See Patterson v.

County of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir.

2004); see also Tadros v. Coleman, 898 F.2d 10, 12

(2d Cir.), cert. denied, 498 U.S. 869 (1990) (§ 1981);

Wynder v. McMahon, 360 F.3d 73, 76°(2d Cir. 2004)

(§ 1983).

In order to state a claim for individual liability

under § 1981, “a plaintiff must demonstrate some

affirmative link to causally connect the actor with the

discriminatory action. . . . [PJersonal liability under

section 1981 must be predicated on the actor’s per-

sonal involvement.” Whidbee v. Garzarelli Food

Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000) (in-

ternal quotation marks omitted). Likewise, a plaintiff

must establish a given defendant’s personal involve-

ment in the claimed violation in order to hold that

defendant liable in his individual capacity under

§ 1983. See, e.g., Back v. Hastings on Hudson Union

Free School Dist., 365 F.3d 107, 122 (2d Cir. 2004).

Personal involvement, within the meaning of this

concept, includes direct participation in the alleged

violation, gross negligence in the supervision of

subordinates who committed the wrongful acts, and

failure to take action upon receiving information that

constitutional violations are occurring. See, e.g.,

Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). “It

Technology Services, Inc. v. Comm. of Dept. of Health on New

York, 189 F.3d 273, 278 (2d Cir. 1999) (citing Will v. Michigan

Dep't of State Police, 491 U.S. 58, 70-71 & n. 10 (1989); Edelman

v. Jordan, 415 U.S. 651, 664-68 (1974)).

17a

is well settled in this Circuit that ‘personal involve-

ment of defendants in alleged constitutional depriva-

tions is a prerequisite to an award of damages under

§ 1983’ and that a complaint must allege such per-

sonal involvement.” Johnson v. Coombe, 156 F. Supp.

2d 273, 278 (S.D.N.Y. 2001) (quoting Wright v. Smith,

21 F.3d 496, 501 (2d Cir. 1994) (footnote omitted). As

the complaint was filed on December 24; 2003, the

individual defendants’ conduct, to be actionable, must

be alleged to have occurred after December 24, 2000.

A. Defendant Novello

Plaintiff alleges that defendant Novello issued an

order of summary suspension of her medical license

on June 29, 2000 (Item 39, J 56). She also contends

that the members of the hearing committee, the ARB,

and the administrative law judge assigned to her

case “were subject to undue influence by Defendant

Novello, who was the charging party and her agents

within the OPMC.” Item 39, 9 75(g)(iii). Plaintiff ar-

gues that defendant Novello, as Commissioner of the

Department of Health, was charged with the execu-

tion of Public Health Law § 230, and that plaintiffs

claims against defendant Novello did not accrue until

plaintiffs medical license was finally revoked on July

29, 2002.

The only action alleged to have been directly taken

by Commissioner Novello is the summary suspension

of plaintiffs medical license.’ Plaintiff has not alleged

* Plaintiff also alleges that the OPMC members “were sub-

ject to undue influence by Defendant Novello . . .” (Item 339,

q 75(g)Giii)). However, plaintiff.alleges no specific conduct on the

part of defendant Novello in this regard. Such a conclusory alle-

gation is not sufficient to survive the motion to dismiss. Smith v.

Local 8191 B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002).

18a

that defendant Novello had any personal involvement

in the revocation of plaintiffs medical license after

the summary suspension in June 2000. The decision

of the OPMC to revoke plaintiffs license in 2002 was

self-executing, and did not require the approval of

the. Commissioner. See N.Y. Public Health Law

§ 230(10)(g). Defendant Novello cannot be held liable

merely for her position as the ©ommissioner of the

Department of Health. The Second Circuit has held

that an allegation seeking to impose liability on a

defendant based on supervisory situs, without more,

will not subject the official to § 1983 liability. See

Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985) (a

mere “linkage in the prison chain of command” is not

sufficient to demonstrate personal involvement for

purposes of § 1983). It is well established that per-

sonal liability under § 1983 cannot be imposed upon a

state official based on a theory of respondeat superior.

See, e.g., Black v. Coughlin, 76 F.3d 72, 74 (2d Cir.

1996).

Plaintiff also seems to argue that the denial of her

due process rights was a continuing violation that

commenced with the investigation and continued

through the revocation of her license and the denial

of her appeal (Item 48, p. 14). The governing three-

year statute of limitations may be tolled where a

party has alleged a “continuing violation” of consti-

tutional rights, the last act of which occurred within

the filing period. See, e.g., Cornwell v. Robinson, 23

F.3d 694, 703 (2d Cir. 1994). In this case, however,

plaintiff has pleaded no facts, in either the original

or amended complaint, to suggest that Novello con-

tinued to have any involvement with plaintiffs dis-

ciplinary proceeding during. the limitations period.

The mere fact that a defendant’s act may have had a

continuing impact is not sufficient to find a continu-

19a

ing violation. See Yip v. Board of Trustees of State

University of New York, 2004 WL 2202594, *5

(W.D.N.Y. September 29, 2004), affd, 150 Fed. Appx.

21 (2d Cir. 2005); Blankman v. County of Nassau, 819

F. Supp. 198, 207 (E.D.N.Y.) (citing Delaware State

College v. Ricks, 449 U.S. 250, 257 (1980) (continuing

violation cannot be based on the continuing effects of

earlier unlawful conduct), affd, 14 F.3d 592 (2d Cir.

1993); United Air Lines, Inc. v. Evans, 431 U.S. 558,

558 (1977) (same)). Because Novello’s involvement

consisted of an isolated act, occurring over three

years before the complaint was filed, the doctrine of a

“continuing violation” cannot be applied to toll the

statute of limitations as to plaintiffs claims against

defendant Novello. See, e.g, Pino v. Ryan, 49 F.3d

51, 54 (2d Cir.1995) (to constitute a continuous or

ongoing violation, plaintiff must allege that defen-

dants were part of a violation of constitutional rights

that continued into the filing period); Verley v. Goord,

2004 WL 526740, *8 (S.D.N.Y. January 23, 2004)

(continuous violation doctrine does not apply to de-

fendants who are only implicated in isolated acts

which occurred prior to the limitations period).

Following oral argument, the court granted plain-

tiff an opportunity to review records relative to

plaintiffs license revocation. The court has reviewed

the declaration of plaintiffs counsel filed August 8,

2005 (Item 55).* Plaintiff has failed to assert any

* The court notes that in Item 55 and the attached exhibits,

plaintiff argues that the New York Public Health Law proce-

dures for medical disciplinary proceedings are flawed and un-

constitutional. Specifically, plaintiff complains that she was

denied an impartial adjudicator, was not allowed to confront

adverse witnesses, was denied the right to present evidence in

her defense and to address constitutional issues, her potential

witnesses were intimidated, and her resources were exhausted

20a

allegation of direct conduct by defendant Novello

within the limitations period. As the only allegation

against Novello is the summary suspension of plain-

tiffs medical license, which occurred more than three

years prior to the commencement of this suit, the

claims against defendant Novello must be dismissed

as time-barred.

B. Defendant Croll

The only allegation in the complaint against de- »

fendant Croll is that she sent plaintiff a letter on

September 22, 1998 seeking medical records (Item

39, J 21). Accepting the truth of this allegation, plain-

tiff cannot show that her claim against defendant

Croll is timely. This discrete act, even if it could be

considered a violation of plaintiffs rights, is separate

and distinct from the revocation of plaintiff's medical

license and occurred more than three years: prior to

the commencement of this action. Plaintiff has failed

to allege any other action by defendant Croll that re-

sulted in the deprivation of her constitutional rights

within the limitations period. Accordingly, the claims

against defendant Croll must be dismissed as time-

barred.

C. Defendants Ciccarella and Kohn

Defendants Ciccarella and Kohn, who interviewed

plaintiff during the investigative phase of the dis-

ciplinary proceeding, also allege that the claims

such that she had to appeal pro se. She also argues that two of

the members of the panel, defendants Nichols and Rogers, are

African-American, and “were deliberately placed on Dr. Apple-

white’s panel to create the appearance of trials by a jury of

her ‘peers.” Item 55, p. 14. Significantly, plaintiff does not

allege any direct conduct by defendant Novello in these alleged

violations.

2la

against them are untimely, but have moved for sum-

mary judgment because the complaint does not

specify the dates of their interviews with plaintiff.

Thus, they rely on evidence outside the four corners

of the complaint, specifically an affidavit (Item 12)

and declaration (Item 25) to establish that the first

three interviews with plaintiff occurred more than

three years prior to the commencement of the action,

and that the fourth interview, which took place with-

in the limitations period, did not result in any

charges against plaintiff.

In support of the motion for summary judgment,

defendant Ciccarella avers that the first three inter-

views with plaintiff occurred on April 27, 2000,

May 11, 2000, and June 8, 2000 (Item 12, 7 2).

Ciccarella has further stated that she interviewed

plaintiff on October 17, 2001, but that defendant

Kohn was not present at the fourth interview (Item

12, |] 6; Item 25, | 7). That interview took place dur-

ing the pendency of the hearing and involved an

allegation that plaintiff had not forwarded a patient’s

medical records to that patient’s new physician (Item.

12, I 7). Ciccarella stated that no charges arose from

this interview. Id., ] 9. With regard to the first three

interviews, Ciccarella stated that she prepared a

summary of the interviews and an investigative re-

port, which was forwarded to the investigative com-

mittee of the OPMC which then made a decision

to file charges against plaintiff. Jd., 4. Ciccarella

stated that she investigated the allegations against

plaintiff, but played no role in the determination to

pursue charges or suspend plaintiffs medical license.

Id., J 5. The reports of the first three interviews are

attached to the Ciccarella Declaration (Item 25), and

indicate that defendant Kohn was present at those

interviews. The report of the fourth interview is

22a

attached to the Ciccarella Affidavit (Item 12), and

indicates that only defendant Ciccarella and Lewis

Fein, Deputy Program Director of the OPMC, were

present at the interview. The reports do not indicate

the date of their preparation.

Plaintiff has argued that this motion is premature

because she has not conducted any discovery. Pursu-

ant to Fed. R. Civ. P. 56(f), if a party cannot present

facts essential to justify her opposition to a motion for

summary judgment, the court may order a continu-

ance to permit discovery. Following oral argument,

defendants agreed to allow plaintiff to review the

transcript of the hearing. However, defense counsel

later advised plaintiff that she would not be allowed

access to investigative records. Item 55, Exh. A.

On this record, the court is unable to conclude that

plaintiffs claims against defendants Ciccarella and

Kohn are untimely. While three of the interviews

occurred prior to December 24, 2000 and the fourth

resulted in no charges, it is unclear from the record

when the interview reports were prepared or when

the summary reports were forwarded to the inves-

tigative body of the OPMC. Assuming, for purposes of

the motion, that Ciccarella and Kohn committed acts

that were violative of plaintiffs right to due process,

the court cannot conclude that none of these acts

occurred within the limitations period. Accordingly,

the motion to dismiss and/or for summary judgment

on the grounds of statute of limitations as to de-

fendants Ciccarella and Kohn is denied.

23a

4. Failure to State a Claim

Finally, defendants Kohn and Ciccarella’ argue

that plaintiff has failed to state a claim against them.

Plaintiff alleges that she received letters from defen-

dant Ciccarella on June 1, 1999, June 16, 1999, and

April 4, 2000 seeking medical records of several of

her patients (Item 39, %% 29, 31, 37). Additionally,

plaintiff alleges that defendant Ciccarella, with de-

fendant Kohn, interviewed plaintiff on four occa-

sions. Id., %% 42-43. Plaintiff alleges that defendants

Ciccarella and Kohn questioned her during the

interviews (Item 39, % 43), prepared reports of those

interviews (/d., % 47), and that a summary report of

the interviews was admitted into evidence against

her at the hearing. Jd., % 51. Plaintiff alleges that

she was denied due process in that she was denied a

verbatim record of the interviews, denied a copy of

the investigative reports, and that the hearsay re-

ports were admitted into evidence against her at the

hearing without affording plaintiff an opportunity

to cross-examine the interviewers. Id., % 75(a)(i), (ii),

(b). Defendants contend that their actions were taken

pursuant to Public Health Law § 230, and. that they

provided plaintiff with due process rather than de-

prived her of due process. |

None of the actions of defendants Ciccarella and

Kohn deprived plaintiff of due process, and the claims

against them must be dismissed. It is well settled

under federal and state law that due process con-

siderations do not require the full array of procedural

tools available to civil litigants be afforded to a plain-

* Defendant Croll also moved on this basis, but as her motion

was granted on the grounds of statute of limitations, it is unnec-

essary to analyze this argument with respect to her.

24a

tiff in an administrative hearing. See e.g., Cleveland

Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985);

Sinha v. Ambach, 457 N.Y.S.2d 603 (App. Div. 3d

Dep’t 1982). There is no requirement in Public Health

Law § 230 that a verbatim transcript of pre-hearing

interviews be provided to a charged physician, and

plaintiff has pointed to no case law supporting her

argument. Likewise, the technical rules of evidence

do not apply in an administrative hearing. Richardson

v. Perales, 402 U.S. 389, 407-08 (1971); see also St.

Lucia v. Novello, 726 N.Y.S.2d 488, 490 (App. Div. 3d

Dep’t 2001) (admission of hearsay evidence at hear-

ing on medical license not violative of due process);

N.Y. Public Health Law § 230(10)(f). Moreover, the

decision to admit the reports into evidence was made

by the administrative officer of the hearing, not

defendants Ciccarella or Kohn. Finally, plaintiff was

not required to be interviewed prior to the imposition

of charges, but was given the opportunity to be

interviewed “in order to provide an explanation of the

issues under investigation.” N.Y. Public Health Law §

230(10)(a)Gii). She was allowed to, and in fact did,

appear with counsel. The actions of these defendants

in requesting patient records and providing plaintiff

the opportunity to be heard prior to the imposition of

charges provided plaintiff with the process afforded

to her by Public Health Law § 230. Accordingly,

plaintiff has failed to state a claim that defendants

Ciccarella and Kohn deprived her of due process, and

the complaint against these defendants is dismissed. .

CONCLUSION

The motion to dismiss of defendants Briber, Lynch,

Nichols, Wear, Grossman, Price, Rogers, Horan, and

Trost on the basis of judicial immunity is GRANTED,

and the complaint against these defendants is dis-

25a

missed. The motion to dismiss the complaint of de-

fendants Novello and Croll on the grounds of statute

of limitations is GRANTED. The motion for sum-

mary judgment of defendants Ciccarella and Kohn is

DENIED, but the motion to dismiss of Ciccarella and

Kohn for failure to state a claim is GRANTED, and

the complaint is dismissed.

So ordered.

/s/ John T. Curtin

JOHN T. CURTIN

United States District Judge

Dated: March 14, 2006

- 26a

APPENDIX C

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

03-CV-0954C

MONICA J. APPLEWHITE, M.D.,

Plaintiff,

-VS-

ROBERT BRIBER, DOROTHY CICCARELLA, MARY T.

CROLL, STANLEY J. GROSSMAN, M.D. M.P.H., JAMES F.

HORAN, ROBERT KOHN, PH.D., THERESE G. LYNCH,

M.D., RUFUS NICHOLS, M.D., ANTONIA C. NOVELLO,

M.D., M.P.H., WINSTON S. PRICE, M.D., LEMUEL

ROGERS, JR., M.D., TIMOTHY J. TROST, ESQ., AND

STEPHEN E. WEAR, PH.D.,

Defendants.

AMENDED COMPLAINT

INTRODUCTION

1. This is an action pursuant to 42 U.S.C. §§ 1981

and 1983 for violation of Plaintiffs right to due proc-

ess, and unlawful deprivation of property in violation

of the Constitution and laws of the United States, by

persons acting under color of state law.

JURISDICTION AND VENUE

2. Jurisdiction over Plaintiffs federal law claims

is conferred upon this Court pursuant to 28 U.S.C.

§§ 1331 and 1343.

27a

3. Venue is properly laid within the Western Dis-

trict of New York pursuant to 28 U.S.C. § 1391(b) in

that the Plaintiff lives in the Western District of New

York, and a substantial part of the acts or omissions

giving rise to the claim occurred in the Western

District of New York.

PARTIES

4. Plaintiff, MONICA J. APPLEWHITE, M.D. was,

at all times relevant to this action, a resident of Erie

County, who, at all times relevant to this action was

a trained physician. She is an African American

woman of Trinidadian origin.

5. Defendant ROBERT BRIBER was, at all times

relevant to this action, a member of the New York

State Department of Health’s Board for Professional

Misconduct, and served as a member of Dr. APPLE-

WHITE’s Administrative Review Board (“ARB”). He

is sued in his personal and official capacities.

6. Defendant DOROTHY CICCARELLA was, at all

times relevant to this action, an Investigator employed

by the New York State Department of Health’s Office

of Professional Misconduct. She is sued in her per-

sonal and official capacities.

7. MARY T. CROLL was, at all times relevant to

this action, an Investigator employed by the New

York State Department of Health’s Office of Profes-

sional Misconduct. She is sued in her personal and

official capacities.

8. STANLEY J. GROSSMAN, M.D. M.P.H. was, at

all times relevant to this action, a member of the New

York State Department of Health’s Board for Profes-

sional Misconduct, and served as a member of Dr.

28a

APPLEWHITE’s Administrative Review Board (“ARB”).

He is sued in his personal and official capacities.

9. JAMES F. HORAN was, at all times relevant to

this action, an Administrative Law Judge who

drafted the determination and order of Dr. APPLE-

WHITE’s Administrative Review Board (“ARB”). He

is sued in his personal and official capacities, and

nonjudicial capacity.

10. ROBERT KOHN, M.D., was, on iniormation and

belief, and employee of the New York State Depart-

ment of Health, and served as a member of Dr.

APPLEWHITE’s interview panel. He is sued in his

personal and official capacities.

11. THERESE. G. LYNCH. M.D. was, at all times

relevant to this action, a member of the New York

State Department of Health’s Board for Professional

Misconduct, and served as a member of Dr. APPLE-

WHITE’s Administrative Review Board (“ARB”). She

is sued in her personal and official capacities.

12. RUFUS NICHOLS, M.D. was, at all times rele-

vant to this action, a member of the New York State

Department of Health’s Board for Professional Mis-

conduct, and served as a member of Dr. APPLE-

WHITE’s Hearing Committee. He is sued in his per-

sonal and official capacities.

13. ANTONIA C. NOVELLO, M.D., M.P.H., was, at

all times relevant to this action, the Commissioner of

the New York State Department of Health. She is

sued in her personal and official capacities.

14. WINSTON S. PRICE, M.D. was, at all times rele-

vant to this action, a member of the New York State

Department of Health’s Board for Professional Mis-

conduct, and served as a member of Dr. APPLE-

29a

WHITE’s Administrative Review Board (“ARB”). He

is sued in his personal and official capacities.

15. LEMUEL ROGERS, Jr., M.D. was, at all times

relevant to this action, a member of the New York

State Department of Health’s Board for Professional

Misconduct, and served as a member of Dr. APPLE-

WHITE’s Hearing Committee. He is sued in his per-

sonal and official capacities.

16. TIMOTHY J. TROST, ESQ. was, at all times

relevant to this action, a member of the New York

State Department of Health’s Board for Professional

Misconduct, and served as a member of Dr. APPLE-

WHITE’s Hearing Committee. He is sued in his per-

sonal and official capacities. |

17. STEPHEN FE. WEAR, Ph.D. was, at all times

relevant to this action, a member of the New York

State Department of Health’s Board for Professional

Misconduct, and served as a member of Dr. APPLE-

WHITE’s Hearing Committee. He is sued in his per-

sonal and official capacities.

FACTUAL ALLEGATIONS

18. Plaintiff APPLEWHITE was licensed to practice

medicine in the State of New York on October 14,

1986 (License No. 168151).

19. Dr. APPLEWHITE practiced medicine, specializ-

ing in the field of Obstetrics and Gynecology, in the

Buffalo area from October 1986 until June 29. 2000,

and was, until the revocation of her license, the only

Black female Obstetrician/Gynecologist practicing in

the Buffalo area.

20. Dr. APPLEWHITE was Board certified in Ob-

stetrics and Gynecology in December 1992; and certi-

fied in High-Risk Obstetrics in September 1999.

36a

21. On September 22, 1998, Defendant CROLL, act-

ing on behalf of the New York State Office of Profes-

sional Misconduct (““OPMC”) sent Dr. APPLEWHITE

a letter seeking certified copies of medical records for

two of Dr. APPLEWHITP’s patients.

22. On October 1 and 2, 1998, Dr. APPLEWHITE

received letters from the President of the Medical

Staff and Associate Director of Professional Affairs of

CGF Health System (which, at the time included

Millard Fillmore Hospital and Children’s Hospital of

Buffalo).

23. The two letters advised her that CGF Health

System had received inquiries from the New York

State Dept. of Health concerning Dr. APPLE-

WHITE’s credentials and certain medical records.

24. The October 1, 1998 letter included a copy of a

September 18, 1998, letter from Lewis Fein to the

Chief Executive Officer of Children’s Hospital of

Buffalo, seeking copies of Dr. APPLEWHITDP’s cre-

dentials, personnel file, quality assurance/peer re-

view file and all incident reports and records of

complaints from 1997 through the present.

25. Dr. APPLEWHITE also learned that on August

24, 1998, Lewis Fein had sent a letter to the Chief

Executive Officer of Millard Fillmore Hospital, seek-

ing similar records to those described in the Septem-

ber 18, 1998 letter, covering the period from January

1997 through the date of the letter.

26. The three letters sent by the Department of

Health’s OPMC in August and September 1998 re-

ferred to PMC # BU-97-04-1636A.

3la

27. Dr. APPLEWHITE provided the requested re-

cords to the OPMC; on information and belief, CGF

Health Systems also provided the requested records.

28. Dr. APPLEWHITE was not advised of the nature

of the complaint(s) against her, the details of the

allegation(s), nor the identity of the complainant(s).

29. On June 1, 1999, Dr. APPLEWHITE received a

letter from Defendant CICCARELLA on behalf of the

OPMC, referring to Case # 33B-BU-99-02-6050A,

seeking the complete medical records of one of Dr.

APPLEWHITE’s patients (different from the two

patients identified in September 1998, whose records

were discussed in J 23, above).

30. Dr. APPLEWHITE provided the requested re-

cords to the OPMC.

31. On June 16, 1999, Dr. APPLEWHITE received a

letter from Defendant CICCARELLA referring to

Case # 33B-BU-99-02-6050A, seeking signed certi-

fication for the records previously submitted by Dr.

APPLEWHITE.

32. Dr. APPLEWHITE was not advised of the nature

of the complaint(s) against her, the details of the

allegation(s), nor the identity of the complainant(s).

33. Qn or about February 21, 2000, Dr. APPLE-

WHITE received notification from the Senior Vice

President for Medical Affairs of Sisters of Charity

Hospital that Lewis Fein had, on February 17, 2000,

sent a letter to the Chief Executive Officer of Sisters

of Charity Hospital seeking copies of Dr. APPLE-

WHITE’s credentials, personnel file, quality assur-

ance/peer review file and all incident reports and re-

cords of complaints from September 1998 through the

present.

32a

34. The February 17 letter from Lewis Fein refer-

enced PMC # 33B-BU-99-02-6050A.

35. On information and belief, Sisters of Charity

Hospital provided the requested records.

36. Dr. APPLEWHITE was not advised of the nature

of the complaint(s) against her, the details of the

allegation(s), nor the identity of the complainant(s).

37. On or about April 4, 2000, Defendant CIC-

CARELLA on behalf of the OPMC, sent Dr. APPLE-

WHITE a letter seeking a complete certified copy of

the medical records of a fourth patient, different from

the three patients whose records were the subjects of

the letters described in {J 23 and 31, above.

38. Dr. APPLEWHITE provided the requested re-

cords to the OPMC.

‘39. Dr. APPLEWHITE was not advised of the nature

of the complaint(s) against her, the details of the

allegation(s), nor the identity of the complainant(s).

40. On or about April 21, 2000, Lewis Fein sent Dr.

APPLEWHITE a letter advising her that an inter-

view had been scheduled “to investigate instances or

complaints of suspected misconduct. OPMC is cur-

rently investigating your medical practice.”

41. Lewis Fein’s letter also advised Dr. APPLE-

WHITE that the issues under investigation involved

the medical care rendered to the four patients whose

records were the subjects of the letters described in

{I 23, 31 and 39, above. :

42. Dr. APPLEWHITE appeared for four separate

interviews. |

33a

43. At the interviews, Dr. APPLEWHITE was ques-

tioned by Defendants KOHN, FEIN, and CIC-

CARELLA.

44. On information and belief, at. the time of the

interviews, Defendants KOHN, FEIN, and CIC-

CARELLA were in receipt of detailed written analy-

ses and comments prepared by medical experts con-

cerning Dr. APPLEWHITH’s care of each of the four

patients whose files were under investigation.

45. Neither Dr. APPLEWHITE nor her counsel were

provided copies of these expert reports, either before

or at the interview.

46. The interviews of Dr. APPLEWHITE were nei-

ther recorded nor transcribed.

47. On information and belief, Defendants KOHN,

FEIN and CICCARELLA prepared separate reports

of the interviews of Dr. APPLEWHITE.

48. On information and belief, the reports of Defen-

dants KOHN, FEIN and CICCARELLA were summa-

rized into a separate report by another investigator

who had not been present at the interviews. _

49. Neither Dr. APPLEWHITE nor her counsel were

provided with copies of any of the reports prepared by

the investigators who conducted the interviews.

50. On information and belief, the only access

afforded to Dr. APPLEWHITE and her counsel to the

reports of the investigators and the underlying

records upon which the reports were based, was the

opportunity to inspect the records in the presence of

OPMC staff.

51. On information and belief, the reports described

in {9 49-52, above, were summarized by a senior

investigator who prepared a report that was admitted

34a

into evidence against Dr. APPLEWHITE at the hear-

ing subsequently conducted on the charges against

her (described in JJ 62-70, below).

52. The report described in J 53, above was admitted

into evidence despite Dr. APPLEWHITE’s strenuous

challenge to the accuracy of the reports of her own

statements.

53. On or about June 27, 2000, Dr. APPLEWHITE

received a Statement of Charges, accusing her of

twenty-three specifications of misconduct, involving

nine patients, all of whom were identified by pseudo-

nyms.

54. Two of the patients identified in the charge were

treated by Dr. APPLEWHITE in 1995.

55. All of the charges relating to patient care issues

arose from incidents that occurred at Millard Fill-

more Suburban Hospital, although approximately

40% of Dr. APPLEWHITPE’s practice was at Sisters of

Charity Hospital of Buffalo, and 20% of her practice

was at Children’s Hospital of Buffalo.

56. On or about June 29, 2000, Dr. APPLEWHITE’s

license to practice medicine was suspended by Defen-

dant NOVELLO, and Dr. APPLEWHITE was di-

rected to appear at a hearing beginning on July 10,

2000.

57. By virtue of the suspension of her license, Dr.

APPLEWHITE was deprived of her income, and

thereby deprived of sufficient means to pay for coun-

sel or the retention of expert witnesses to assist in

her defense.

58. On information and belief, Defendants and their

representatives refused to participate in good-faith in

settlement discussions with Dr. APPLEWHITE’s

35a

counsel at any time between July 10, 2000 and No-

vember 21, 2001.

59. On information and belief, between August 25,

2000 and November 9, 2001, Defendant members of

the OPMC actively intimidated at least two physi-

cians who had initially expressed support of Dr.

APPLEWHITE, by threatening investigations of

those physicians’ competence, surgical and medical

outcomes, and by contacting a physician’s medical

malpractice insurance carrier seeking information

about the physician’s claims history.

60. The hearing was conducted before Defendants

ROGERS, NICHOLS and WEAR, and Defendant

TROST served as Administrative Officer for the

Hearing Committee.

61. The hearing actually commenced on August 25,

2000, and continued for an additional fifteen dates,

until November 9, 2001, despite the statutory re-

quirement that such hearings be concluded within

ninety days.

62. Dr. APPLEWHITE and her counsel cooperated

fully in efforts to schedule hearing dates; on informa-

tion and belief, the delays in the hearing were caused

by the schedules of Defendants.

63. During the course of the hearings, the hearsay

report of the Senior Investigator summarizing the

reports of the interviews of Dr. APPLEWHITE was

admitted into evidence.

64. Dr. APPLEWHITE was never provided with

exculpatory evidence by Defendants, nor was she

notified whether Defendants were aware of such ex-

culpatory evidence.

36a

65. During the course of the hearings, Dr. APPLE-

WHITE was required to pay in advance in order to

purchase copies of the transcript of the proceedings

(which ran to more than 1895 pages), thus substan-

tially increasing the cost of defending against the

charges.

66. On information and belief, because of the costs

involved, the potential for substantial further delay,

and the difficulty of locating witnesses who were not

intimidated by OPMC employees, Dr. APPLEWHITE

was unable to present sufficient evidence to rebut the

evidence of the Prosecution.

67. Dr. APPLEWHITE’s counsel was limited to

twenty minutes of summation on the charges involv-

ing all nine patients who were the subjects of the

charge against her.

68. On information and belief, twenty minutes was

insufficient time to adequately address the charges

and evidence against Dr. APPLEWHITE.

69. On or about March 27, 2002, Dr. APPLEWHITE

-was notified that the Hearing Committee had voted

to sustain eleven of the twenty-three charges, had

found her guilty of “gross negligence,” “gross incom-

petence” and “professional misconduct,” and had

voted to revoke her license to practice medicine, as

set forth in Determination and Order BPMC #20-88..

70. Dr. APPLEWHITE filed a pro se appeal to an

Administrative Review Board “ARB”on or about April

10, 2002.

71. On or about July 29, 2002, an ARB composed of

Defendants BRIBER, GROSSMAN, LYNCH, PRICE

and Tina Graves Pellman, voted to uphold the Hear-

ing Committee’s determination and order, finding

37a

that Plaintiff had “practiced with negligence and in-

competence repeatedly and egregiously,” and had

committed “professional misconduct,” as set forth in

ARB Determination and Order No. 02-88.

72. The ARB’s decision was prepared by Defendant

HORAN.

73. On information and belief, sole practitioners and

minority doctors are often targeted by the OPMC for

investigation, and Dr. APPLEWHITE was targeted,

in part because she was a sole practitioner and a

member of a minority group (African American).

FIRST CAUSE OF ACTION: DENIAL OF DUE

PROCESS IN VIOLATION OF THE

CONSTITUTION OF THE UNITED STATES

74. Plaintiff reasserts and realleges the allegations

set forth in {7 1 though 73 as though fully set forth

herein.

75. Defendants have denied Plaintiff substantive due

process of the law in violation of the Fifth and Four-

teenth Amendments to the Constitution of the United

States in the following ways: |

a. Plaintiff was denied adequate and timely no-.

tice of the charges and evidence against her, includ-

ing the medical records and expert reports, including,

but not limited to the following;

i. Plaintiff was denied a contemporaneous

verbatim record of the interviews;

ii. Plaintiff was denied copies of the reports of

the investigators who conducted the interviews;

ii. Over Plaintiffs objections, Defencants pre-

sented evidence that purported to contain the signa-

38a

ture of a deceased former patient, even though such

signature was not verified;

iv. Defendants presented evidence from out-

side Plaintiffs records that one of her patients was

monitoring blood sugar levels, although such evi-

dence had never been presented to either Plaintiff or

the specialist to whom Plaintiff referred the patient,

and such evidence was not shared with Plaintiff or

her counsel prior to the hearings;

v. Plaintiff was denied complete copies of

patients’ medical records on the ground that State

law guaranteed confidentiality, although, on informa-

tion and belief, Defendants shared such records and

information with counsel for individuals who had

sued Plaintiff in medical malpractice actions.

b. Although Plaintiff was denied a contempo-

raneous record of her initial interviews with Defen-

dants, “reports” of those interviews were subse-

quently admitted into evidence against her at the

hearings, over her strenuous objections as to the

accuracy of those reports;

c. Plaintiff was forced to defend against charges

that were more than five years old, thus making it

difficult .for her to obtain and present competent evi-

dence on her own behalf;

d. Plaintiff was denied an adequate opportunity

to be heard, in that

i. She was unable to afford the expense of

prolonged hearings;

ii. Defendants or their agents intimidated the

witnesses Plaintiff sought to present on her own

behalf;

39a

iil. Plaintiff and her representatives or advo-

cates were denied participation in the evaluative

process by which an assessment of her care of the

patents was reached, in contravention of the tradi-

tional and customary collaborative process by. which

doctors are trained to function, and under which they

routinely function, by being excluded from the initial

review process that resulted in the determination of

whether or not to bring charges against her; and

iv. Her counsel was denied adequate time to

address the charges against her on summation;

e. Plaintiff was denied a timely hearing in viola-

tion of Public Health Law § 2380(1\(f)

f. Plaintiff was denied a presumption of inno-

cence, in that even before her initial hearing, her

name was publicized by Defendants as a doctor under

investigation, presumably in the expectation that

such publication would lead to the filing of malprac-

tice claims against Plaintiff, which were then “consid-

ered” by Defendants in evaluating the charges

against her;

g. Plaintiff was denied a fair and impartial

decision-maker in that

i. Plaintiffs Hearing Committee was com-

prised of two retired obstetricians, neither of whom

was certified in high-risk obstetrics, and a state em-

ployee who teaches medical ethics at the State

University of New York at Buffalo;

ii. Neither of the physicians on Plaintiffs

Hearing Committee was independently qualified to

assess Plaintiffs patient care decisions and actions,

nor was the University professor;

dai

Re

40a

iii. All three members of the Hearing Com-

mittee, the members of the Administrative Review

Board, and the Administrative Law Judges assigned

to Plaintiffs case were subject to undue influence by

Defendant Novello, who was the charging party and

her agents within the OPMC.

76. As a result of Defendants’ illegal actions, Plain-

tiff has suffered damage to her reputation, loss of

income, loss of enjoyment of life, and mental and

physical pain and suffering, including metal and

emotional stress resulting from Plaintiffs forced

violation of her Hippocratic Oath when she, a solo

practitioner, was forced to abandon her patients in

mid-treatment by the temporary suspension and

revocation of her license.

SECOND CAUSE OF ACTION: DEPRIVATION OF

PROPERTY WITHOUT DUE PROCESS

77. Plaintiff reasserts and realleges the allegations

set forth in {J 1 though 76 as though fully set forth

herein.

78. By virtue of the actions described herein, Defen-

dants have deprived Plaintiff of property without due

process in violation of the Fifth and Fourteenth

Amendments to the Constitution of the United

States.

79. As a result of Defendants’ illegal actions, Plain-

tiff has suffered damage to her reputation, loss of in-

come, loss of enjoyment of life, and mental and physi-

cal pain and suffering, including metal and emotional

stress resulting from Plaintiffs forced violation of her

Hippocratic Oath when she, a solo practitioner, was

forced to abandon her patients in mid-treatment

by the temporary suspension and revocation of her

license.

4la

THIRD CAUSE OF ACTION: DEPRIVATION

OF LIBERTY WITHOUT DUE PROCESS

80. Plaintiff reasserts and realleges the allegations

set forth in {{ 1 through 79 as though fully set forth

herein. .

81. Defendants’ actions have defamed Plaintiffs pro-

fessional reputation, in addition to depriving her of

her state-issued license to practice medicine in the

State of New York.

82. Such defamation accompanied by the revocation

of Plaintiffs professional license violated Plaintiffs

right to liberty without due process, as is set forth in

greater detail in the First and Second Causes of

Action, above.

83. As a result of Defendants’ illegal actions, Plain-

tiff has suffered damage to her reputation, loss of

income, loss of enjoyment of life, and mental and

physical pain and suffering, including metal and emo-

tional stress resulting from Plaintiffs forced violation

of her Hippocratic Oath when she, a solo practitioner,

was forced to abandon her patients in mid-treatment

by the temporary suspension and revocation of her

license. ;

FOURTH CAUSE OF ACTION: PUBLIC HEALTH

LAW § 230 IS UNCONSTITUTIONAL AS

APPLIED TO PLAINTIFF

84. Plaintiff reasserts and realleges the allegations

set forth in J] 1 though 83 as though fully set forth

herein.

85. As applied to Plaintiff, herein, Public Health

Law § 230(10) is unconstitutional in that it deprived

Plaintiff substantive due process, and deprived Plain-

tiff of her property without due process by denying

42a

her adequate notice and an opportunity to be heard

in a meaningful manner and a timely fashion before

her license to practice medicine in the State of New

York was suspended and revoked.

86. By virtue of the Defendant’s unconstitutional

application of Public Health Law § 230(10) to Plain-

tiff, Plaintiff has suffered damage to her reputation,

loss of income, loss of enjoyment of life, and mental

and physical pain and suffering, including metal and

emotional stress resulting from Plaintiffs forced

violation of her Hippocratic Oath when she, a solo

practitioner, was forced to abandon her patients in

mid-treatment by the temporary suspension and

revocation of her license.

FIFTH CAUSE OF ACTION: PUBLIC HEALTH

LAW § 230 IS UNCONSTITUTIONAL ON ITS FACE

87. Plaintiff reasserts and realleges the allegations

set forth in 7] 1 though 86 as though fully set forth

herein.

88. Public ulealth Law § 230(10) is unconstitutional

on its face in that it

a. deprives Plaintiff and other similarly situated

physicians substantive due process;

b. deprives Plaintiff and other similarly situated

physicians of their property without due process by

denying them adequate notice and an opportunity to

be heard in a meaningful manner and a timely

fashion before their licenses to practice medicine in

the State of New York are suspended and revoked;

and

c. Lacks any independent mechanism or proce-

dure for ensuring the reliability of the decision-

making process.

43a

d. The statute is void for vagueness because it

sanctions physicians for “misconduct,” “gross incom-

petence,” and “gross negligence,” without any clear or

meaningful definition of those terms.

89. Because Plaintiff was subjected to sanctions

under an unconstitutional statute, she was deprived

of her rights secured to her by the Constitution and

laws of the United States.

SIXTH CAUSE OF ACTION: DISCRIMINATION IN

VIOLATION OF 42 U.S.C. SECTION 1981

90. Plaintiff reasserts and realleges the allegations

set forth in J{ 1 through 89 as though fully set forth

herein.

91. As set forth in detail herein, Defendants denied

Plaintiff the full and equal benefit of laws and

proceedings for the security of persons and property

enjoyed by white citizens on the basis of Plaintiffs

race (Black).

92. As a result of Defendants’ illegal actions, Plain-

tiff has suffered damage to her reputation, loss of

income, loss of enjoyment of life, and mental and

physical pain and suffering, including metal and

emotional stress resulting from Piaintiffs forced

violation of her Hippocratic Oath when she, a solo

practitioner, was forced to abandon her patients in

mid-treatment by the temporary suspension and

revocation of her license.

WHEREFORE, Plaintiff respectfully requests this

Court to enter an Order

a. Awarding Plaintiff compensatory damages for

violation of her civil rights, damage to her reputation,

lost income, and her pain and suffering;

44a

b. Awarding Plaintiff attorney’s fees and costs of

this action; and

c. Awarding such other and further relief as

may be just and proper.

Dated: December 14, 2004

Buffalo, New York

/s/ Lindy Korn /s/ Anna Marie Richmond

LINDY KORN ANNA MARIE RICHMOND

Attorney for Plaintiff Attorney for Plaintiff

1904 Liberty Building P.O. Box 1215

Buffalo, New York 14202 Buffalo, New York, 14213

716-845-5516 716-881-6593

LKK75ATTY@aol.com amrichmond@verizon.net