Opinion
21-CV-10378 (PAE) (VF)
08-07-2023
PAULINE EVANS, Plaintiff, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, and NEW YORK CITY HEALTH AND HOSPITALS CORPORATION LINCOLN, Defendants.
HONORABLE PAUL A. ENGELMAYER, United States District Judge
REPORT & RECOMMENDATION
VALERIE FIGUEREDO, United States Magistrate Judge
On December 6, 2021, Plaintiff Pauline Evans, proceeding pro se, commenced this action against Defendants New York City Health and Hospitals Corporation (“H+H”) and New York City Health and Hospitals Corporation Lincoln (“Lincoln Hospital”). See ECF No. 1 (“Compl.”). Plaintiff was terminated on November 1, 2021 from her position as Head Nurse at Lincoln Hospital because she failed to comply with the hospital's COVID-19 vaccination requirement for healthcare workers. Plaintiff asserts that her termination violated: (1) her right to refuse unwanted and medically unnecessary medical care (that is, her right to bodily integrity); (2) the Supremacy Clause of the United States Constitution; (3) the Fourteenth Amendment Due Process Clause of the federal Constitution; and (4) 42 U.S.C. § 1983. Defendants moved to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(7). See ECF No. 40. For the reasons set forth below, I recommend that Defendants' motion to dismiss pursuant to Rule 12(b)(6) be GRANTED.
The page numbers referenced herein for citations to the electronic docket (“ECF”) are to the original pagination in those documents. Citations to Plaintiff's Complaint are to the paragraph numbers contained therein. Plaintiff appends certain documents to her Complaint and citations to those documents are to the original pagination in the Complaint.
The following facts, alleged in Plaintiff's Complaint, are accepted as true for purposes of this motion and construed in the light most favorable to Plaintiff. See Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010).
Defendant H+H is a public benefit corporation created by the New York State Legislature that operates Defendant Lincoln Hospital, a full-service medical center and teaching hospital in the Bronx. Compl. ¶¶ 10, 11. Plaintiff was hired, by Lincoln Hospital on December 18, 1989, as a Nurse's Aide. Id. ¶¶ 9, 13. She subsequently rose to the position of Head Nurse and remained in that position until November 1, 2021, when her employment was terminated. Id.; see also id. ¶ 21. Plaintiff's employment was terminated because of her refusal to accept a COVID-19 vaccine. Id. ¶¶ 9, 13.
In the spring of 2020, the novel coronavirus SARS-CoV-2, which can cause the disease COVID-19, was spreading across the globe, leading the World Health Organization to declare COVID-19 a “global pandemic.” Id. ¶¶ 23-24. In response, the United States launched “Operation Warp Speed,” a program by the federal government aimed at developing three separate COVID-19 vaccines for “emergency use.” Id. ¶ 24. On December 11, 2020, the Food and Drug Administration (“FDA”) issued an Emergency Use Authorization (“EUA”) for the Pfizer-BioNTech COVID-19 Vaccine. Id. ¶ 26. One week later, the FDA issued an EUA for the Moderna COVID-19 vaccine. Id. ¶ 27. Both vaccines were authorized pursuant to 21 U.S.C. § 360bbb-3, an emergency use authorization statute under the federal Food, Drug, and Cosmetic Act. Id. ¶¶ 29, 31. Other COVID-19 vaccines have since been added to the FDA's EUA list. Id. ¶ 28.
On August 26, 2021, the New York State Department of Health enacted an emergency rule requiring healthcare facilities, such as Lincoln Hospital, to ensure that their employees (including members of the medical and nursing staff) were vaccinated against COVID-19. See N.Y. Comp. Codes R. & Regs. tit. 10, § 2.61 (2021) (the “Vaccine Mandate”). Lincoln Hospital adopted the Vaccine Mandate, thereby “implement[ing] a mandatory [vaccination] policy as a condition for Plaintiff retaining her employment.” Compl. ¶ 34.
Plaintiff alleges that “on or about August 3, 2021 . . . a mandatory proof of the EAU vaccination was required for all indoor places of business in the City of New York,” and that Lincoln Hospital subsequently adopted that requirement and “implemented a mandatory [vaccination] policy as a condition for Plaintiff retaining her employment.” Compl. ¶¶ 33-34. Plaintiff appears to be referring to the New York State Vaccine Mandate and the Court may take judicial notice of the regulation enacting that mandate in deciding the instant motion to dismiss. See, e.g., Marciano v. de Blasio, 589 F.Supp.3d 423, 428 n.5 (S.D.N.Y. 2022), appeal dismissed, 2023 WL 3477119 (2d Cir. May 16, 2023) (taking judicial notice of state-agency promulgated guidelines in deciding motion to dismiss); Kane v. de Blasio, 623 F.Supp.3d 339, 348 n.8 (S.D.N.Y. 2022) (taking judicial notice of publicly available FDA guidance at motion-to-dismiss stage).
On September 3, 2021, Plaintiff received a notice from Lincoln Hospital, informing her of the Vaccine Mandate and instructing her that she needed to get vaccinated to remain employed at the hospital. Id. ¶ 14. Plaintiff responded to the notice in writing on September 7, 2021, objecting to the Vaccine Mandate “pursuant to established federal law.” Id. ¶¶ 15-16, 35; see also id. at 19-23. In her response, Plaintiff explained that the Vaccine Mandate violated her right to privacy and therefore was preempted by federal law. Id. 19-23; see also id. ¶ 35. On September 14, Plaintiff received an “advanced notice” of “relief from duty” from the Director of Human Resources for H+H. Id. at 24. The notice stated that because Plaintiff had not complied with the Vaccine Mandate, she would be “relieved from duty without pay,” effective September 27, 2021, until she complied with the vaccination requirement. Id.
On October 21, 2021, Plaintiff received a notice from H+H's Senior Vice President of Human Resources informing her that because she “remained non-compliant with the COVID-19 vaccination requirement,” she had three options: Plaintiff could get vaccinated by October 29, 2021 and return to work; she could choose to remain unvaccinated and voluntarily resign, but continue to receive health benefits through the end of her separation date (which would be no later than December 31, 2021); or she could choose to remain unvaccinated and not elect to receive the additional benefits, and her separation date from H+H would be November 1, 2021. Id. at 17; see also id. ¶ 20. Plaintiff did not respond to the notice, and on November 1, 2021, her employment was terminated. Id. ¶¶ 1, 13, 21.
To exercise this option, Plaintiff had to submit a waiver and release of claims by October 29, 2021. Id. at 17.
2. Procedural History
Following her termination from Lincoln Hospital, Plaintiff commenced the instant action on December 6, 2021, alleging that the Vaccine Mandate violated her right to refuse unwanted and medically unnecessary medical care (i.e., her right to bodily integrity), the Supremacy Clause of the U.S. Constitution, the Fourteenth Amendment Due Process Clause, and 42 U.S.C. § 1983. See Compl. On July 25, 2022, Plaintiff submitted a motion for default judgment (ECF No. 17), which the undersigned recommended be denied in a Report and Recommendation issued on November 28, 2022 (ECF No. 37). The Honorable Paul A. Engelmayer adopted the report on January 27, 2023, denying the motion for default judgment. See ECF No. 37.
On February 16, 2023, Defendants moved to dismiss Plaintiff's Complaint pursuant to Rules 12(b)(6) and 12(b)(7) of the Federal Rules of Civil Procedure. ECF Nos. 40-42. On the same day, Judge Engelmayer referred the motion to the undersigned. ECF No. 45. Plaintiff submitted her response in opposition to the motion on April 19, 2023 (ECF No. 48); and on April 24, 2023, Defendants submitted their reply brief (ECF No. 50). Plaintiff filed an additional affidavit in opposition to the motion on April 27, 2023. See ECF No. 52.
LEGAL STANDARD
1. Motion to Dismiss Pursuant to Rule 12(b)(6)
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint “must plead ‘enough facts to state a claim to relief that is plausible on its face.'” Green v. Dep't of Educ. of City of New York, 16 F.4th 1070, 1076-77 (2d Cir. 2021) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (citation omitted). In determining if a claim is sufficiently plausible to withstand dismissal, a court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). “[W]hen the plaintiff proceeds pro se, as in this case, a court is obliged to construe his pleadings liberally, particularly when they allege civil rights violations.” Jacobs v. Ramirez, 400 F.3d 105, 106 (2d Cir. 2005) (citation omitted); see also Muntaqim v. Coombe, 366 F.3d 102, 105 n.3 (2d Cir. 2004) (stating that pro se pleadings should be read “liberally and interpret[ed] . . . to raise the strongest arguments that they suggest”) (citation omitted).
The court's function on a motion to dismiss is “not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985) (citation omitted). When presented with a motion to dismiss pursuant to Rule 12(b)(6), the court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002) (citation omitted).
2. Motion to Dismiss Pursuant to Rule 12(b)(7)
Under Federal Rule of Civil Procedure 12(b)(7), a court must dismiss an action for failure to join a necessary party under Rule 19. See Viacom Int'l., Inc. v. Kearney, 212 F.3d 721, 72425 (2d Cir. 2000); C.D.S., Inc. v. Zetler, 198 F.Supp.3d 323, 335 (S.D.N.Y. 2016); Federal Ins. Co. v. SafeNet, Inc., 758 F.Supp.2d 251, 257 (S.D.N.Y. 2010). Courts assess three factors in determining whether a non-party is “necessary” under Rule 19(a): (1) “whether the court can afford complete relief in the absence of the non-party”; (2) “whether the non-party's absence will impair or impede its ability to protect its interests”; and (3) “whether the existing parties would be subject to double, multiple, or otherwise inconsistent obligations.” See C.D.S., 198 F.Supp.3d at 335-36 (internal quotation marks and citation omitted); Fed.R.Civ.P. 19(a)(1). “If a party does not qualify as necessary under Rule 19(a), then the court need not decide whether its absence warrants dismissal under Rule 19(b).” Giuliano v. Barch, No. 16-CV-0859 (NSR), 2017 WL 1234042, at *15 (S.D.N.Y. Mar. 31, 2017) (citation and internal quotation marks omitted).
If the court finds that a party is necessary under Rule 19(a) but joinder is not feasible because, for example, the joinder will destroy the court's subject-matter jurisdiction, the court must consider “in equity and good conscience” whether the absent party is “indispensable” under Rule 19(b). Viacom, 212 F.3d at 725 (citation omitted); Jonesfilm v. Lion Gate Int'l., 299 F.3d 134, 139 (2d Cir. 2002). The factors considered in this analysis include:
(1) the extent to which a judgment rendered in the person's absence might prejudice that person or the existing parties; (2) the extent to which any prejudice could be lessened or avoided by: (a) protective provisions in the judgment; (b) shaping the relief; or (c) other measures; (3) whether a judgment rendered in the person's absence would be adequate; and (4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.Fed. R. Civ. P. 19(b)(1)-(4); Viacom, 212 F.3d at 725. If the court determines that the party is indispensable, then the court must dismiss the action pursuant to Rule 19(b). See Viacom, 212 F.3d at 725.
DISCUSSION
Defendants move to dismiss Plaintiff's Complaint on the grounds that (1) Lincoln Hospital is an entity that lacks the capacity to be sued; (2) Plaintiff's Fourteenth Amendment bodily integrity claim fails as a matter of law; (3) Plaintiff's procedural due process claim fails as a matter of law; (4) there is no private right of action under the Supremacy Clause; (5) § 1983 does not create any independent substantive right; and (6) Plaintiff failed to join the State of New York as a necessary party. See ECF No. 41 (“Defs.' Br.”). For the reasons that follow, I recommend that Defendants' motion to dismiss pursuant to Rule 12(b)(6) be granted and Plaintiff's Complaint be dismissed.
In their reply brief, Defendants assert that “Plaintiff failed to address any of Defendants' legal arguments [in her opposition] and therefore she has abandoned all her claims.” ECF No. 50 at 1. If a plaintiff fails to respond to a defendant's arguments or otherwise defend her claim in her opposition papers, a court may consider the claim abandoned. See Golub v. Berdon LLP, No. 19-CV-10309 (JGK), 2022 WL 1228025, at *4 (S.D.N.Y. Apr. 26, 2022). Plaintiff, however, is pro se. I therefore address the merits of each of her claims.
A. Defendant Lincoln Hospital lacks the capacity to be sued.
Defendants correctly assert that all claims against Lincoln Hospital must be dismissed because, as an entity that is operated by H+H, Lincoln Hospital lacks the capacity to be sued. Defs.' Br. at 3-4. Courts in this circuit have uniformly held that facilities owned and operated by H+H lack the capacity to be sued. See Ochei v. Coler/Goldwater Mem'l Hosp., 450 F.Supp.2d 275, 288 (S.D.N.Y. 2006) (“[A] facility owned and operated by [H+H] . . . may not be sued in its independent capacity.”) (citation omitted); Romero v. Bellevue Hospital, No. 23-CV-3706 (LTS), 2023 WL 4081540, at *2 (S.D.N.Y. June 20, 2023) (although H+H has the capacity to be sued, a facility within H+H lacks that capacity) (citations omitted). Therefore, I recommend that Lincoln Hospital be dismissed as a defendant.
By contrast, H+H is an entity with the capacity to be sued. See N.Y. Unconsol. Law § 7385(1) (McKinney 2023).
B. Plaintiff's Fourteenth Amendment, Bodily Integrity Claim
Plaintiff alleges that the Vaccine Mandate violated her “liberty interest in her bodily integrity” under the Fourteenth Amendment by “coerc[ing]” her to get vaccinated against her will. Compl. ¶¶ 52, 55. Defendants argue that decisions from the Supreme Court and the Second Circuit establish that the Vaccine Mandate does not violate Plaintiff's Fourteenth Amendment rights. Defs.' Br. at 4-5. Defendants are correct. I recommend that Plaintiff's claim be dismissed because Plaintiff has not alleged a violation of a fundamental right.
“Both [the Second Circuit] and the Supreme Court have consistently recognized that the Constitution embodies no fundamental right that in and of itself would render vaccine requirements imposed in the public interest, in the face of a public health emergency, unconstitutional.” We The Patriots USA, Inc. v. Hochul, 17 F.4th 266, 293 (2d Cir. 2021) (responding to claims from nurses employed by healthcare facilities in New York that the Vaccine Mandate violated their fundamental rights to privacy, medical freedom, and bodily autonomy under the Fourteenth Amendment) (citations omitted). In Jacobson v. Massachusetts, the Supreme Court upheld a state-issued compulsory, vaccine mandate against a substantive due process challenge, concluding that the mandate was within the state's police power. 197 U.S. 11, 27 (1905). Consistent with Jacobson, courts that have reviewed the Vaccine Mandate or other COVID-19 vaccine mandates have concluded that such vaccination requirements do not violate the Fourteenth Amendment's Substantive Due Process Clause. See Marciano v. de Blasio, 589 F.Supp.3d 423, 435 (S.D.N.Y. 2022) (“[A] requirement that City employees and contractors receive a vaccine approved by the FDA, implemented in the throes of a pandemic to help stem the unremitting waves of illness within the City, does not facially violate any right to substantive due process.”); We The Patriots, 17 F.4th at 293 (“Plaintiffs provide no basis for concluding that the [Vaccine Mandate], considerably narrower than the city-wide mandate in Jacobson, violates a fundamental constitutional right.”); Phillips v. City of New York, 775 F.3d 538, 542 (2d Cir. 2015) (rejecting substantive due process challenge to a vaccine mandate based on Jacobson); Abadi v. City of New York, No. 21-CV-8071 (PAE), 2022 WL 347632, at *9 (S.D.N.Y. Feb. 4, 2022) (“It follows from Jacobson that an ordinance” requiring patrons of certain indoor establishments to show proof of vaccination against COVID-19, as a condition of entry, “does not impermissibly infringe on [one's] bodily integrity.”).
The applicability of Jacobson has been limited in the context of cases dealing with a free-exercise claim. See, e.g., Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S.Ct. 63 (2020); Agudath Israel of Am. v. Cuomo, 983 F.3d 620, 635 (2d Cir. 2020). “However, whatever doubts Roman Catholic Diocese and Agudath may raise about Jacobson's continuing viability, those cases dealt only with a free exercise claim, and did not explicitly overrule Jacobson.” Butler v. City of New York, 559 F.Supp.3d 253, 265 (S.D.N.Y. 2021) (citations omitted) (emphasis added). Plaintiff here is not asserting a free-exercise claim under the First Amendment.
In contrast to the statute upheld in Jacobson, the Vaccine Mandate here did not even force Plaintiff to be vaccinated, “a point that courts have consistently made in upholding these and similar ordinances adopted during the COVID-19 pandemic.” Abadi, 2022 WL 347632, at *9. “As these courts have noted, a person in [Plaintiff's] circumstances has a choice to make.” Id. (citations omitted); see also We The Patriots, 17 F.4th at 294 (“Vaccination is a condition of employment in the healthcare field; the State is not forcibly vaccinating healthcare workers.”); Dixon v. De Blasio, 566 F.Supp.3d 171, 185 (E.D.N.Y. 2021) (“[T]hese EEOs are not forcing New Yorkers to get vaccinated. They are merely placing restrictions on those who choose not to.”). In choosing to remain unvaccinated, Plaintiff simply failed to satisfy a condition of her employment as Head Nurse at Lincoln Hospital. And as courts have held, such a condition of employment does not violate an employee's fundamental rights under the Substantive Due Process Clause. See, e.g., Norris v. Stanley, 73 F.4th 431, 435-38 (6th Cir. 2023) (university's COVID-19 vaccine mandate did not violate employees' substantive due process rights).
C. Plaintiff's Due Process Claim
Plaintiff asserts that the Vaccine Mandate represents a “procedural due process violation” because Defendants required her to prove that it would have been safe for her to continue working without being vaccinated. Compl. ¶ 56. “[T]he deprivation by state action of a constitutionally protected interest in life, liberty, or property is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.” Zinermon v. Burch, 494 U.S. 113, 125 (1990) (citations, emphasis, and internal quotation marks omitted). To state a procedural due process claim, a plaintiff must establish “(1) possession by the plaintiff of a protected liberty or property interest, and (2) deprivation of that interest without constitutionally adequate process.” Tooly v. Schwaller, 919 F.3d 165, 173 (2d Cir. 2019) (citation omitted).
Plaintiff alleges that she “possesses both a liberty interest in her bodily integrity and . . . a property interest in her remunerative employment career.” Compl. ¶ 55. As discussed, Plaintiff does not have a fundamental right to refuse the Vaccine Mandate, see supra at 8-10, and she therefore has failed to allege the existence of a protected liberty interest, see We The Patriots, 17 F.4th at 293. As such, Plaintiff's procedural due process claim fails as a matter of law as it relates to her purported liberty interest. See Belem v. Jaddou, No. 21-CV-4093 (VEC), 2022 WL 1664332, at *6 (S.D.N.Y. May 25, 2022) (procedural due process claim failed, in part, because plaintiff failed to identify a constitutionally protected liberty interest).
As it pertains to a property interest, Plaintiff points to her interest in continued public employment at Lincoln Hospital. “[A]n at-will government employee generally has no procedural due process claim based on the Constitution at all.” See De La Cruz v. Guilliani, No. 00-CIV-7102 (LAK) (JCF), 2002 WL 32830453, at *13 (S.D.N.Y. Aug. 26, 2002) (citations, internal quotation marks, and alterations omitted). On the other hand, courts have found that a public employee subject to discharge only for cause does have a constitutionally protected interest in her continued employment. See Marciano, 589 F.Supp.3d at 435-36 (citing cases). Further, specific circumstances surrounding an individual's employment may create a property interest in a position. See, e.g., Ezekwo v. New York City Health & Hospital Corp., 940 F.2d 775, 777, 782 (2d Cir.1991) (property interest in chief residency position created where there was consistent policy and practice of awarding chief resident position to third year residents on rotating basis and brochure made available to prospective residents stated that each resident would serve as chief resident for four months).
Plaintiff's Complaint contains no factual allegations as to the terms of her employment with Lincoln Hospital. There are no factual allegations demonstrating, for instance, whether she was an at-will employee or could be terminated only for cause. Because Plaintiff has failed to allege facts from which to infer the existence of a protectable property interest in her employment at Lincoln Hospital, she necessarily fails to state a claim on which relief may be granted. However, Plaintiff is proceeding pro se and “[d]istrict courts generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its defects, unless amendment would be futile.” Harewood-Bey v. Biden, No. 22-CV-1472 (LTS), 2022 WL 3353480, at *5 (S.D.N.Y. Aug. 12, 2022) (citations omitted). Depending on the nature of her employment relationship with the hospital, Plaintiff could very well amend her claim to sufficiently allege the existence of a protectable property interest in her employment at Lincoln Hospital.
As to the second prong of a procedural due process claim, “[p]re-deprivation processes need not be elaborate, and the Constitution mandates only that such process include, at a minimum, notice and the opportunity to respond.” Garland v. New York City Fire Dep't., 574 F.Supp.3d 120, 130 (E.D.N.Y. 2021) (citations and internal quotation marks omitted). Courts have determined that “due process is generally satisfied so long as some form of hearing is provided before the individual is finally deprived of the property interest.” Newman v. Reardon, No. 21-CV-6431 (LTS), 2021 WL 5235044, at *2 (S.D.N.Y. Nov. 8, 2021) (citing Nnebe v. Daus, 644 F.3d 147, 158 (2d Cir. 2011)). “[T]he Second Circuit has [also] ‘held on several occasions that there is no due process violation where . . . pre-deprivation notice is provided and the deprivation at issue can be fully remedied through the grievance procedures provided for in a collective bargaining agreement.'” Kane v. de Blasio, 623 F.Supp.3d 339, 361 (S.D.N.Y. 2022) (quoting Adams v. Souzzi, 517 F.3d 124, 128 (2d Cir. 2008)). Further, an Article 78 proceeding to challenge the action or determination of a governmental officer or agency has been held to be “a perfectly adequate post-deprivation remedy.” Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 881 (2d Cir. 1996) (citations omitted).
As Plaintiff's Complaint makes clear, Plaintiff received ample notice of the vaccination requirement. See Compl. ¶¶ 14, 20, 34; id. at 17, 24. But besides reference to the notices she received from Lincoln Hospital, see id., Plaintiff's Complaint contains no factual allegations detailing what, if any, process the hospital afforded her to challenge her termination. And it is not evident from those notices that any process was made available to Plaintiff.
Defendants argue that Plaintiff's collective bargaining agreement was an adequate predeprivation remedy, and Plaintiff could have challenged her termination through an Article 78 proceeding. Defs.' Br. at 6. The Complaint, however, contains no factual allegations from which to infer that Plaintiff was a unionized employee subject to a collective bargaining agreement. Nor are there any allegations as to what Plaintiff did following her termination and thus there is no basis to determine whether or not she brought an Article 78 proceeding.
Because it is not evident from the allegations in the Complaint that permitting Plaintiff an opportunity to amend her claim would be futile, I recommend that Plaintiff be afforded leave to amend her Complaint as it pertains to her Fourteenth Amendment Due Process claim. Plaintiff should be instructed to file an amended complaint that provides more factual allegations detailing the nature of her employment relationship with Lincoln Hospital and explaining any administrative or collective bargaining procedures that she could have used to challenge her termination decision, or if she initiated an Article 78 proceeding after her termination.
D. Plaintiff's Supremacy Clause Claim
Plaintiff alleges that the Vaccine Mandate violates the Constitution's Supremacy Clause. Compl. ¶¶ 57-73. The Supremacy Clause is not the “source of any federal rights” and “does not create a cause of action.” Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320, 324-25 (2015) (citations and internal quotation marks omitted). There thus is no private right of action under the Supremacy Clause, id. at 324-27, and courts have consistently rejected Supremacy Clause claims challenging vaccination requirements. See We The Patriots, 17 F.4th at 293 (“[T]he district court erred by finding that Plaintiffs are likely to succeed on their claim that [a state vaccine mandate] is preempted by Title VII [of the Civil Rights Act of 1964] and therefore violative of the Supremacy Clause.”); Johnson v. Brown, 567 F.Supp.3d 1230, 1255 (D. Or. 2021) (noting that “Plaintiffs fail[ed] to show that they [were] likely to succeed, or even raise serious questions, on the merits of their Supremacy Clause claim” alleging that the state-ordered COVID-19 vaccine mandate violated the Supremacy Clause).
Even if a private right of action existed, “[t]here is a presumption that state or local regulation of matters related to health and safety is not invalidated under the Supremacy Clause.” Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 715 (1985). And here, the Vaccine Mandate expressly states that it was enacted to protect public health during the COVID-19 pandemic. See N.Y. Comp. Codes R. & Regs. tit. 10, § 2.61 (2021).
Plaintiff points to 21 U.S.C. § 360bbb-3, an emergency use authorization statute under the federal Food, Drug, and Cosmetic Act, to argue that the Vaccination Mandate is preempted by federal law. Compl. ¶¶ 30-31, 65. Specifically, Plaintiff references language in the statute requiring that anyone who receives the vaccine “be informed of the option to accept or to refuse it, as well as the alternatives to the products and the risks and benefits of receiving it.” Id. ¶ 31; see also 21 U.S.C. § 360bbb-3 (e)(1)(A)(ii)(n-III) (requiring that “[appropriate conditions [be] designed to ensure that individuals to whom the [COVID-19 vaccine] is administered are informed . . . of the significant known and potential benefits and risks of such use, and of the extent to which such benefits and risks are unknown[,] and . . . of the option to accept or refuse administration of the [COVID-19 vaccine], of the consequences, if any of refusing administrative of the [COVID-19 vaccine], and of the alternatives to the [COVID-19 vaccine] that are available and of their benefits and risks.”). However, the language of § 360bbb-3 concerns “the interaction between the medical provider and the person receiving the vaccine, not the interaction between an employer and an employee receiving a vaccine.” Norris, 73 F.4th at 438 (citing 21 U.S.C. § 360bbb-3(e)(1)(A)(ii)). Therefore, this informed consent requirement does not apply to Defendants because they are not “directly administering the vaccine” to employees. Johnson, 567 F.Supp.3d at 1256 (holding that because Plaintiffs did not name any medical providers responsible for administering the vaccine, they were unlikely to succeed in their claim that Defendants violated 21 U.S.C. § 360bbb-3(e)(1)(A)) (citation and internal quotation marks omitted); see also Valdez v. Grisham, 559 F.Supp.3d 1161, 1172 (D. N.M. 2021), aff'd, No. 212105, 2022 WL 2129071 (10th Cir. June 14, 2022). The emergency use authorization statute is thus meant to ensure that patients receiving the vaccine have consented to the vaccination. See Norris, 73 F.4th at 438. Simply put, even if there were a private right of action under the Supremacy Clause, Plaintiff has not plausibly alleged that the Vaccine Mandate is preempted by federal law. I therefore recommend dismissal of Plaintiff's claim under the Supremacy Clause.
E. Plaintiff's Section 1983 Claim
Plaintiff alleges that Section 1983 supports her “constitutional and statutory causes of action” because the statute “protects rights ‘secured by the Constitution and laws.'” Compl. ¶ 73 (quoting 42 U.S.C. § 1983) (emphasis omitted). To the extent Plaintiff is attempting to assert a violation of Section 1983, the claim necessarily fails. “Section 1983 does not create any independent substantive right, but rather is a vehicle to ‘redress . . . the deprivation of [federal] rights established elsewhere.'” Laface v. E. Suffolk Boces, 349 F.Supp.3d 126, 153 (E.D.N.Y. 2018) (quoting Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999)); see also Rosa R. v. Connelly, 889 F.2d 435, 440 (2d Cir. 1989) (“It is fundamental . . . that § 1983 creates no independent, substantive constitutional rights but rather is a vehicle for enforcing such rights.”) (citation omitted). Accordingly, I recommend that any stand-alone Section 1983 claim, to the extent one is alleged in the Complaint, be dismissed.
F. Defendant's argument that New York is a necessary party.
Defendants also argue that Plaintiff's Complaint should be dismissed for failure to join the State of New York as a defendant. See Defs.' Br. at 2-3. As explained (see supra at 6-7), under Federal Rule of Civil Procedure 12(b)(7), a court must dismiss an action for failure to join a necessary party under Rule 19.
“There are three components of Rule 19(a) that courts assess to determine whether a nonparty is required.” C.D.S., 2016 WL 4257745, at *7 (citing Fed.R.Civ.P. 19(a)(1)); see also Federal Ins. Co., 758 F.Supp.2d at 257. The first component asks whether the court can afford complete relief in the absence of the non-party. See Fed.R.Civ.P. 19(a)(1)(A); Federal Ins. Co., 758 F.Supp.2d at 257 (citing MasterCard Int'l, Inc. v. Visa Int'l Serv. Ass'n, Inc., 471 F.3d 377, 385 (2d Cir. 2006)). The second component focuses on whether the non-party's absence will impair or impede its ability to protect its interests. See Fed.R.Civ.P. 19(a)(1)(B)(i); Federal Ins. Co., 758 F.Supp.2d at 257-58 (citing MasterCard, 471 F.3d 377, 386-87). The third component asks whether the existing parties would be subject to “double, multiple, or otherwise inconsistent obligations.” See Fed.R.Civ.P. 19 (a)(1)(B)(ii). If any of the three components are satisfied, the absentee party constitutes a required party. See Federal Ins. Co., 758 F.Supp.2d at 257-59.
In summary fashion, Defendants assert that the State of New York is a necessary party. See Defs.' Br. at 3. Defendants contend that they “are not proper parties because they were not the architect of [the Vaccine Mandate].” Id. Defendants, however, address none of the factors applicable under Rule 19(a). Moreover, “[f]or a party to be necessary within the meaning of Rule 19(a)(1)(B)(i), the absent party must be the one claiming the interest. A party named in the litigation cannot assert the interest on the absent party's behalf.” See Cont'l Cos. Co. v. Am. Home Assur. Co., No. 05-CV-7874 (LTS) (JCF), 2008 WL 1752231, at *4 (S.D.N.Y. Apr. 14, 2008) (internal citations omitted). The State of New York has not sought to intervene in this action, which it could choose to do under New York Executive Law § 71.
Plaintiff appears to be seeking a declaratory judgment that the Vaccine Mandate as applied to her is unconstitutional, and compensatory and punitive damages for the loss of her employment. See Compl. at 14-15 (Relief Requested).
As discussed, I recommend that all of Plaintiff's claims be dismissed, and that Plaintiff be afforded leave to replead her Fourteenth Amendment procedural due process claim, as it relates to a potential property interest in her employment at Lincoln Hospital. Plaintiff's procedural due process claim does not appear to contend that the Vaccine Mandate is unconstitutional on its face. However, should Plaintiff be able to adequately allege a protected property interest, the claim would instead focus on whether Plaintiff received adequate notice and process prior to her termination. And if Plaintiff is able to adequately plead such a claim and ultimately prevail, it is not apparent that complete relief could not be afforded without the State being a party. I therefore recommend denial of Defendants' motion to the extent they seek dismissal under Rule 12(b)(7). Accordingly, if Plaintiff is granted leave to amend her complaint to restate her Fourteenth Amendment Procedural Due Process claim, I do not recommend requiring that Plaintiff name New York State as a defendant.
CONCLUSION
For the foregoing reasons, I respectfully recommend that Defendants' Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure be GRANTED. I recommend that Plaintiff be afforded leave file an amended complaint as it relates only to her Fourteenth Amendment procedural due process claim based on the termination of her employment. Plaintiff should be instructed that Lincoln Hospital lacks the capacity to be sued and therefore should not be named as a defendant in her amended complaint.
SO ORDERED.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to the Honorable Paul A. Engelmayer. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).