Opposition Brief — Carlen v. Department of Health Services of Suffolk County

No. 96-1243

In The

Supreme Court of the United States |

4%

October Term, 1996

ROBERT CARLEN, M.D.,

Petitioner,

VS.

DEPARTMENT OF HEALTH SERVICES, DAVID HARRIS,

M.D., Individually and as former Commissioner of the Suffolk

County Department of Health Services;

SUFFOLK COUNTY,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

ROBERT J. CIMINO

Suffolk County Attorney

THEODORE D. SKLAR*

Assistant County Attorney

Attorneys for Respondents

Building 158

North County Complex

Veterans Memorial Highway

Hauppauge, New York 11787-4311

(516) 853-4049

* Counsel of Record

70708 putz

(800) 3 APPEAL + (800) 5 APPEAL + (800) BRIEF 21 ‘Appeliate

Senices, inc.

\ \

\*

i

QUESTION PRESENTED FOR REVIEW

Has the Petitioner established that “compelling reasons”

exist for this Court to grant the writ where he has failed to cite

or discuss any of the considerations governing review on

certiorari (Rule 10) in his petition and where all that he is seeking

is yet another review of his termination from employment?

ii

TABLE OF CONTENTS

Page

Question Presented for Review ...............000- i

Table of Comet ...0sncwkub ane eee eee il

Table of Citatlegs ... s <ce bckaw ee anaes il

Sahcastet af he Ces occ eens l

Summary of the Argument ......ccccccsccensceces 4

Reasons for Denying the Writ .....ccccscssccevess 5

Petitioner Has Failed To Establish Jurisdiction For

Review Of The Orders Appealed From, As

Required By Rule 10 Of This Court. ........ 5

Conmciusiom ....4+s+ssudneaeee eee ween s 6

TABLE OF CITATIONS

Cases Cited:

Allen v. McCurry, 449 U.S. 90, 101 S. Ct. 411, 66 L.

Ed. 26 SOB CHSGED ohkccccwe eb ekesnabs <> 6

Braxton v. United States, 500 U.S. 344, 111 S. Ct. 1854,

114 L. Be. 2b Be Glee en ceeasideekisccneses 5

Carlen v. Harris, 140 A.D. 2d 288, 527 N.Y.S. 2d 538

(2d Dept. 1988), lv. to appeal denied, 73 N.Y. 2d 709,

540 N.Y.S. 2d 1004, 538 N.E. 2d 356 (1989) .... 1,2

ili

Contents

Carlen v. Harris, 200 A.D. 2d 619, 608 N.Y.S. 2d 851

(2d Dept. 1994), lv. to appeal denied, 83 N.Y, 24 757,

615 N.Y.S. 2d 874, 639 N.E. 2d 415 (1994) .....

Kremer v. Chemical Construction Corp., 456 U.S. 461,

102 S. Ct. 1883, 72 L. Ed. 2d 262 (1982) ........

Layne & Bowler Corp. v. Western Well Works, Inc., 261

U.S. 387, 43 S. Ct. 422, 67 L. Ed. 712 (1923) ....

Migra v. Warren City School District Board of Education,

465 U.S. 75, 104 S. Ct. 892, 79 L. Ed. 2d 56 (1984)

Rice v. Sioux City Memorial Park Cemetery, 349 U.S.

70, 75 S. Ct. 614, 99 L. Ed. 897 (1955) .........

Statutes Cited:

Section 75 of the New York Civil Service Law (McKinney

EN SC icci ak oWU Rate creneheectisveseessees

Article 78 of the New York Civil Practice Law and Rules

(McKinney 1994) ........ eee eee cree eee ceees

United States Constitution Cited:

First AmenGment ......ccccccccccccsccsccccceces

i een pases ee sees eee eeeee

Eighth Amendment ........----seeeeeeeeeeereees

Fourteenth Amendment .............eeeeeeeeeeeee

Page

l,2

3,4

3,4

3,4

3, 4

iv

Contents

Page

Rules Cited:

Supromee Comrt Fite TS). occ c cove cccnevesteassas i, 5

UOOTES COURT TUES TOEGD secs ewcvecencutcasecs 6

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STATEMENT OF THE CASE

The petitioner, Robert Carlen, M.D., is a former part-time

civil service employee of the Suffolk County Department of

Health Services. He worked as a physician at the Suffolk County

Correctional Facility (JA30)."

On or about December 4, 1986, the petitioner commenced

a proceeding pursuant to Article 78 of the New York Civil

Practice Law and Rules (McKinney 1994) against his

supervisors, David Harris, M.D., William Steibel, M.D. and

Maury Greenberg, M.D., to obtain a judgment to enjoin his

supervisors from interfering with his professional judgment and

his professional duties in the treatment of his inmate patients.

A Justice of the Supreme Court, State of New York, granted the

supervisors’ motion to dismiss that proceeding by order dated

May 1, 1987 (A36-39).? Petitioner appealed and the Appellate

Division of the Supreme Court of the State of New York, Second

Department, affirmed the lower court's decision finding that the

petitioner failed to exhaust his administrative remedies and that

the petition failed to state a cause of action. Carlen v. Harris,

140 A.D. 2d 288, 527 N.Y.S. 2d 538 (2d Dept. 1988), lv. to appeal

denied, 73 N.Y. 2d 709, 540 N.Y.S. 2d 1004, 538 N.E. 2d 356

(1989) (A30-35).

Specifically, the Appellate Division stated:

Over and above this flaw in the proceeding,

1. References preceded by “JA” are to pages in the Joint Appendix in

the Court of Appeals for the Second Circuit.

2. References preceded by “A” are to pages in the Appendix before

this Court.

2

we are of the view that the petition fails to

State a cause of action. The respondents

clearly had the authority to direct the manner

in which the petitioner performed his duties.

The petition and the papers submitted by the

petitioner in response to the respondents’

motion to dismiss fail to demonstrate that the

respondents exceeded their authority in any

way and is therefore insufficient as a matter

of law (see McGraw v. Shapiro, 56 A.D. 2d

624, 391 N.Y.S. 2d 681).

140 A.D. 2d at 290, 527 N.Y.S. 2d at 539 (A35).

Petitioner was terminated from employment on or about

February 13, 1990, following an administrative hearing held

pursuant to Section 75 of the New York Civil Service Law

(McKinney 1983) (A40-41). The basis for the termination was

a finding that petitioner was guilty of 46 disciplinary charges

that were the subject of the administrative hearing (A42-53).

The hearing officer determined, in sum, that Petitioner

deviated from accepted medical practice on eight occasions

(A52), refused to provide medical care to patients on five

occasions (A52) and failed to follow procedural and substantive

medical orders from supervisors in twenty-eight instances (A50;

A52). Most notably, with respect to five of the charges, the

hearing officer noted that Petitioner’s action (or inaction) may

have put patients at risk (A51).

On June 4, 1990, Petitioner commenced another C.P.L.R.

Article 78 proceeding in New York State Supreme Court, this

time to overturn his termination. That proceeding was

transferred to and heard by the Appellate Division of the

Supreme Court of the State of New York, Second Department.

3

The Appellate Division found that there was substantial evidence

to support the findings of guilt and the termination of the

petitioner and that there was no support for his retaliation claim

(A27-29). The court stated:

[W]e note that we previously determined, as

a matter of law, that the respondent had the

authority to direct the manner in which the

petitioner performed his duties, and that the

petitioner’s arguments set forth in the instant

proceeding virtually mirror those

propounded and rejected earlier (see Carlen

v. Harris, 140 A.D. 2d 288).

Carlen v. Harris, 200 A.D. 2d 619, 620, 608 N.Y.S. 2d 851 (2d

Dept. 1994), lv. to appeal denied, 83 N.Y. 2d 757, 615 N.Y.S.

2d 874, 639 N.E. 2d 415 (1994) (A28-29).

Petitioner commenced the instant civil rights action against

the Suffolk County Department of Health Services and David

Harris (hereinafter the “respondents”) on January 15, 1993

(JA27). An amended complaint was served on January 19, 1993

(JA28-53). Petitioner alleged that the respondents violated the

jail inmates’ Eighth Amendment rights to adequate medical care

and accurate medical records, and Petitioner’s First Amendment

right of free speech (JA31-37). Further, Petitioner claimed that

the Civil Service Law § 75 disciplinary proceeding which was

affirmed by the Appellate Division was a hoax which deprived

him of his Fifth and Fourteenth Amendment due process rights

(JA32). Petitioner sought annulment of his termination,

reinstatement to his employment, compensatory and exemplary

damages and an order prohibiting the respondents from

continuing to deprive him and Suffolk County prisoners of their

constitutionai rights.

4

The Respondents moved to dismiss the complaint on the

grounds that the Petitioner had no standing to assert the Eighth

Amendment rights of inmates, that the complaint failed to state

a claim under the First, Fifth and Fourteenth Amendments, and

that the full faith and credit clause precluded relitigation of issues

finally determined by the New York State courts. The Honorable

Leonard D. Wexler, United States District Court Judge, granted

the Respondents’ motion. The District Court found that

petitioner’s due process, equal protection and First Amendment

claims were barred under the doctrine of issue preclusion. The

District Court further found that the Petitioner failed to state an

equal protection cause of action and that he lacked standing to

assert a violation of the inmates’ rights to adequate medical care.

While the District Court did not specifically recognize

petitioner’s indirect Eighth Amendment claim (“constitutional

right to refuse to violate the inmates’ constitutional right”), it

found that the state court’s finding of no retaliation precluded a

finding in his favor.

The Court of Appeals for the Second Circuit affirmed the

District Court in a summary order for substantially the reasons

stated by the District Court (A1-A4). The Court of Appeals also

denied the petition for a rehearing en banc (A5). This Petition

for a Writ of Certiorari ensued.

SUMMARY OF THE ARGUMENT

There are no compelling reasons for this Court to grant

further judicial review of Petitioner’s disciplinary proceeding.

5

REASONS FOR DENYING THE WRIT

PETITIONER HAS FAILED TO ESTABLISH

JURISDICTION FOR REVIEW OF THE ORDERS

APPEALED FROM, AS REQUIRED BY RULE 10 OF THIS

COURT.

In Braxton v. United States, 500 U.S. 344, 347, 111 S. Ci.

1854, 1857, 114 L. Ed. 2d 385 (1991), this Court stated that

“[a] principal purpose for which we use our certiorari jurisdiction

... 1s to resolve conflicts among the United States Courts of

Appeals and state courts concerning the meaning of provisions

of federal law”. In Rice v. Sioux City Memorial Park Cemetery,

349 U.S. 70, 74, 75 S. Ct. 614, 616, 99 L. Ed. 897 (1955), this

Court, in considering the meaning of the phrase “special and

important reasons” within the context of the former version of

Rule 10 of the Supreme Court Rules, noted that it does not sit

for the “benefit of the particular litigants”, and declared that

the issue presented must involve a “a problem beyond the

academic or the episodic.” The Court stressed that “it is very

important that we be consistent in not granting the writ of

certiorari except in cases involving principles the settlement of

which is of importance to the public, as distinguished from that

of the parties, and in cases where there is a real and embarrassing

conflict of opinion and authority between the Circuit Courts of

Appeals.” Id. at 79, 75 S. Ct. at 620, 99 L. Ed. at __, quoting

Layne & Bowler Corp. v. Western Well Works, Inc., 261 U.S.

387, 393, 43 S. Ct. 422, 423, 67 L. Ed. 712 (1923).

None of the considerations specified in Rule 10 are in any

way implicated by the issues presented by this Petition. Indeed,

the Petition does not even address and brief any of the

considerations under Rule 10. The order appealed from does

not involve a decision of a United States Court of Appeals which

is “in conflict with a decision of another United States Court of

6

Appeals on the same important matter,” nor does it involve

resolution of a federal question “in a way that conflicts with a

decision by a state court of last resort,” nor has it “so far departed

from the accepted and usual course of judicial proceedings, or

sanctioned such a departure by a lower court, as to call for an

exercise of this Court’s supervisory power.” Rule 10(a), Rules

of the Supreme Court. This Court has settled the law pertaining

to the preclusive effect of a state court judgment, and that law

was correctly applied by the courts below. See Migra v. Warren

City School District Board of Education, 465 U.S. 75, 84-85,

104 S. Ct. 892, 79 L. Ed. 2d 56 (1984); Kremer v. Chemical

Construction Corp., 456 U.S. 461, 466, 102 S. Ct. 1883, 72 L.

Ed. 2d 262 (1982); Allen v. McCurry, 449 U.S. 90, 103-104,

101 S. Ct. 411, 66 L. Ed. 2d 308 (1980).

CONCLUSION

For all the reasons set forth above, it is respectfully

requested that the Petition for a Writ of Certiorari from Orders

of the United States Court of Appeals for the Second Circuit,

dated September 26, 1996 and November 8, 1996, be denied in

all respects.

Respectfully submitted,

ROBERT J. CIMINO

Suffolk County Attorney

THEODORE D. SKLAR*

Assistant County Attorney

Attorneys for Respondents

Building 158

North County Complex

Veterans Memorial Highway

Hauppauge, New York 11787-4311

(516) 853-4049

* Counsel of Record