Opinion
01 Civ. 1996 (RMB) (GWG)
January 5, 2004
REPORT AND RECOMMENDATION
Plaintiff Walter Green, who passed away after this lawsuit was filed, suffered from Amyotrophic Lateral Sclerosis ("ALS"), commonly known as Lou Gehrig's Disease. At the time of the relevant events, he was wheelchair-bound and dependent on a respirator. On March 19, 2000, Mr. Green's mechanical respirator failed. Emergency medical personnel responded to a 911 call placed by his daughter, Alixandra Green, and eventually transported him to St. Luke's-Roosevelt Hospital Center ("St. Luke's").
This suit alleges that Walter Green was forcibly removed from his home against his express wishes and that his wife and daughter, plaintiffs Susan Ross Green and Alixandra Green, were assaulted in the process. The Greens brought this action against the City of New York, St. Luke's, and Lieutenant Paul Giblin of the Emergency Medical Service Command alleging violations of the Fourth and Fourteenth Amendments, the Americans with Disabilities Act of 1990 ("ADA"), and various state laws. Defendants now move for summary judgment pursuant to Fed.R.Civ.P. 56. See Notice of Motion, filed July 23, 2003 (Docket #40). For the following reasons, this motion should be granted.
I. FACTUAL BACKGROUND
Walter Green was diagnosed with ALS in 1993. See Deposition of Walter Green, October 18, 2001 ("W. Green Dep. I"), at 9. This incurable disease destroys the nerves that control muscles necessary for voluntary movement, such as those in the arms, legs, neck, torso, and lungs. As the disease progresses, a patient's whole body is affected, while the mind remains unaffected. Id. at 10, 13. Since 1995, Mr. Green had been wheelchair-bound full-time. Since 1997, he required a respirator (also referred to as a ventilator or "vent") to breathe. Id. at 16, 27. The Greens usually kept two mechanical ventilators in their home. They also kept a manual back-up called an "ambu-bag." The ambu-bag attached to a tube that fit onto Mr. Green's trachea, through which the operator of the ambu-bag could manually push air in and out. W. Green Dep. II at 16-18; Deposition of Susan Ross Green, February 20, 2002 (Def. Ex. G) ("S. Green Dep. I"), at 41-44. As his illness progressed, Walter Green lost the ability to communicate orally. He came to depend on blinking (one blink for "no," two blinks for "yes"), W. Green Dep. I at 5-6; S. Green Dep. I at 62, and a laptop computer which he operated by moving a few of his fingers, S. Green Dep. I at 29-31, 63-64. A voice augmentation feature on the laptop allowed his words to be spoken out loud. W. Green Dep. III at 15-17. Because of his limited movement, it could take him five minutes to say two or three words through the computer. Deposition of Hiroshi Mitsumoto, M.D., January 31, 2003 (Def. Ex. S) ("Mitsumoto Dep."), at 32-33.
Walter Green was deposed over the course of four days: October 18, 2001, November 8, 2001, November 20, 2001, and November 29, 2001. The four transcripts of these depositions are cited as "W. Green Dep. I," "W. Green Dep. II," etc. They are contained in Exhibit F to the Joint Declaration of Mary O'Flynn and Michael P. Kelly, dated June 30, 2003. Exhibits to this Joint Declaration are hereinafter cited as "Def. Ex."
Susan Green was deposed on two days — February 20, 2002 ("S. Green Dep. F') and April 29, 2002 ("S. Green Dep. II"). The transcripts are contained in Def. Exs. G and H, respectively.
In March 2000, Mr. Green was living on Riverside Drive in Manhattan with his wife, Susan Ross Green, their fourteen-year-old daughter Alixandra, and Shirley Barboza, a person who lived in the home to help care for Mr. Green. S. Green Dep. I at 14; Deposition of Alixandra Green, June 19, 2001 (Def. Ex. P) ("A. Green Dep."), at 14; Deposition of Shirley Barboza, January 31, 2002 (Def. Ex. AA) ("Barboza Dep."), at 8. The family lived in a penthouse apartment on the 18th floor. The building elevator went only to the 17th floor, so the only access to the apartment was by means of a staircase. Mr. Green had to use a specialized stair chair to get up and down the staircase. S. Green Dep. I at 14-16; A. Green Dep. at 11-14, 82-84. After Mr. Green had a tracheotomy in 1997, Shirley Barboza began living with the Greens and attending to Mr. Green's needs, such as helping him get dressed and eat. Ms. Barboza described her position as that of "assistant nurse" but she had no formal nursing training or certification. Barboza Dep. at 8-24. William Hill, a certified respiratory therapist, regularly assisted Mr. Green with his respirator. He also trained the family and Ms. Barboza to operate the respirator and the ambu-bag, and to deal with emergencies such as mechanical failures. W. Green Dep. I at 27-30; Deposition of William Hill, February 15, 2002 (Def. Ex. O) ("Hill Dep."), at 37-52. Marcela Lopez, a music teacher and friend of Ms. Barboza's from church, would fill in for Ms. Barboza on an as-needed basis. Ms. Barboza and Susan Green trained Ms. Lopez in caring for Mr. Green, although there were tasks, such as lifting Mr. Green, that Ms. Lopez could not do because of her size. Deposition of Marcela Lopez, March 25, 2002 (Def. Ex. N) ("Lopez Dep."), at 8, 11-15.
On March 19, 2000, Ms. Barboza was on a two-week vacation. A. Green Dep. at 66. Walter Green had a respiratory infection, which can be very serious for ALS patients, and was being treated with antibiotics. W. Green Dep. I at 44; S. Green Dep. II at 51, 58-60; Mitsumoto Dep. at 42-45. Mr. Green testified at his deposition that at least ten prior respiratory infections had been adequately handled at home and that this infection was relatively minor. W. Green Dep. I at 44. Ms. Lopez was working that day and stayed alone in the apartment with Mr. Green while Susan and Alixandra did some last-minute shopping for Alixandra's school trip to England the following day. A. Green Dep. at 93-94. While Ms. Lopez and Mr. Green were alone, Mr. Green signaled to Ms. Lopez that something was wrong. She checked the respirator and found that it was still working, yet Mr. Green continued to indicate that something was wrong. Ms. Lopez called Susan Green's cell phone and said, "I think that Walter is feeling bad. I need you here." Lopez Dep. at 24-25.
Alixandra returned home first and found Ms. Lopez blowing air directly into Mr. Green's trachea, as the ventilator had failed, the back-up ventilator was not working, and she was unable to find the ambu-bag. Alixandra also could not find the ambu-bag. A. Green Dep. at 95-102, 104-05. Alixandra testified that when she arrived, her father's "eyes were rolled back and his face was green and he was very cold." Id. at 98. Alixandra then called 911 at 2:40 p.m. and told the operator that the vent was broken, that her father was dying and his eyes were rolling, and that they needed help. Transcript of 911 Call (Pl. Ex. B), at 1-4. The transcript of this call makes repeated references to Alixandra "screaming" as the dispatcher tried to calm her down. Id. at 3-4. It is unclear from the 911 transcript whether or not Mr. Green was breathing when Alixandra placed the call. See id. Susan Green returned to the apartment while Alixandra was on the phone with the 911 operator.Id. at 5-9; S. Green Dep. II at 65. She found the ambu-bag and began manually administering oxygen to Mr. Green by pumping the bag. S. Green Dep. II at 65-66.
St. Luke's paramedics Ogude and Collins, NYPD officers Holliday and Henriquez, and, shortly thereafter, EMTs Kelly and Reno responded to the 911 call. S. Green Dep. I at 70-71; S. Green Dep. II at 67; Deposition of Fernando Henriquez, June 8, 2001 (Def. Ex. CC) ("Henriquez Dep."), at 50. Susan Green testified she informed the crews that the family had the situation under control, told them that their services were not needed, and asked them to leave. S. Green Dep. I at 72; S. Green Dep. II at 70-71. Nevertheless, the paramedics assessed Mr. Green's condition and one of them took over operating the ambu-bag with Susan Green's consent since it was "very hard to do." S. Green Dep. II at 71. The testimony differs as to Mr. Green's state when the emergency medical personnel arrived. The personnel who were present testified that Mr. Green was unconscious. Deposition of Daniel Kelly, June 5, 2001 (Def. Ex. BB) ("Kelly Dep."), at 174-79; Deposition of C.K. Collins, June 21, 2001 (Def. Ex. I) ("Collins Dep."), at 36. The Ambulance Call Report (Pl. Ex. E) indicates as follows:
60 year old male found sitting in custom made wheelchair unresponsive and breathing via bag valve mask. Patient has history of Lou Gehrig's disease. Patient breathes through respirator but was broken. Physical examination reveals loss of consciousness 15 minutes, respiratory arrest, no chest pain, warm skin. Around 15:20 patient became alert, communicating via computer and winks.
Susan Green disputes this report insofar as she contends that Mr. Green was in fact conscious and was communicating with her, their daughter, and Ms. Lopez when the crews arrived. S. Green Dep. I at 61-63. In addition, Mr. Green estimated that he lost consciousness for five to six minutes, not fifteen as stated in the Ambulance Call Report. W. Green Dep. II at 52-57.
The paramedics suctioned yellow-green mucus out of Mr. Green's trachea and started an IV. Collins Dep. at 36; Deposition of Festus Ogude, April 10, 2002 (Def. Ex. K) ("Ogude Dep."), at 51-52, 71-73. The crew also took over manual operation of the ambu-bag. S. Green Dep. I at 73-74; S. Green Dep. II at 71; Kelly Dep. at 176. There is no evidence that Susan Green made any objection to the crew's undertaking these measures and she specifically consented to Ogude's taking over operation of the ambu-bag due to its difficulty, S. Green Dep. II at 71. At some point, paramedic Chris Collins informed Susan Green that her husband needed to go to the hospital. S. Green Dep. I at 84-85. Susan Green refused to allow him to be transported to the hospital. She tried to explain that her husband was able to communicate and did not want to go to the hospital. Id. at 84-89.
At 3:14 p.m., Collins placed a call to "telemetry" (also called On-Line Medical Control), which is a hot-line number staffed with a physician, because Susan Green was refusing to allow them to transport Mr. Green. Collins Dep. at 45-47; Deposition of Flavio Crisari, March 22, 2002 (Def. Ex. M), at 22-24; Computer Print-Out (Pl. Ex. A). The conversation was as follows:
09 Victor [Collins]: Yeah Telemetry is 09 Victor. Okay here's my situation. I'm at 11 Riverside Drive. We got the call for an unconscious. It's a 60 year old male who has a history of Lou Gehrig's disease. He lives upstairs in a penthouse in the building. He needs to be carried down a flight of stairs. There is no elevator in this particular residence to take him down to the next floor. The patient's vent had died. When we got there the patient's family had been bagging him. The patient is septic, he was suctioned he probably got about 100 cc's of yellow green [mucus] out of his lungs. We initiated A[dvanced] L[ife] S[upport] and the patient's family does not wish to allow him to be removed from the residence. I have the police here, Manhattan Central is trying to get me a patrol boss. They don't have one.
. . . .
UF [unidentified female]: Why are they refusing?
09 Victor: Excuse me?
UF: Why are they refusing to hold our transport?
09 Victor: Because his wishes to — according to his wife that he doesn't want to be transported to any hospital. He's been in his residence and he's treated here.
UF: Is there anything done in paper?
09 Victor: No
UF: OK, does she have any paper saying that she can make decisions for him?
09 Victor: I don't know. Ma'am do you have any, do you have his — are you his guardian or his healthcare provider and you're able to make all his decisions? Do you have any legal paperwork? Do you have any paperwork in the residence that can prove that? You don't have anything . . . [background conversation]. All right he has a living will and whatnot but I don't have anything in front of me.
UF: But she can't even produce the living will to you? He could talk?
09 Victor: All right he's got a trachea and he is being bagged he can communicate via computer.
UF: Are they are — well that's not going to help us.
09 Victor: Okay.
UF: How is he going — what's going on with the machine?
09 Victor: The vent is dead.
UF: And how is that going to get fixed?
09 Victor: They got the — they called somebody from the respiratory company and supposedly they're waiting for a phone call back and somebody to come over and take care of it. They do have a backup vent but that does not seem to be functioning either.
UF: Oooh, man all right. Hold on one second.
. . . .
09 Victor: I spoke to the doc he said that standby for the lieutenant and see what he can get you know done from there.
. . . .
UF: All right wait until a supervisor gets there before you make any suggestions to the sergeant okay?
09 Victor: All right.
Transcript of Call to Telemetry (P1. Ex. B), at 21-24. Lieutenant Paul Giblin of the New York City Fire Department ("FDNY"), who was in command of the EMTs, arrived at approximately 3:28 p.m. See Computer Print-Out.
Paul Giblin testified that Mr. Green was "in extremis," meaning he could not breathe on his own and would have died without intervention, and "probably hypoxic," due to a lack of oxygen. Deposition of Paul Giblin, April 10, 2002 (Def. Ex. L) ("Giblin Dep."), at 94-98, 106-07. Giblin stated that he did not personally examine Mr. Green but that he determined Mr. Green's condition required going to the hospital based on what the crew reported to him:
Q: What steps did you undertake to communicate with him?
A: I did not take steps to communicate with him. I spoke to the unit and asked what was going on, and they relayed the information to me.
Q: Why didn't you communicate with Mr. Green?
A: Because Mr. Green was unable to communicate with me at that time. The man was not making any movements at all that I could see. We had been on the scene for an extensive amount of time. He needed to go to the hospital, to get the care he needed with a respirator.Id. at 107-08, 126-27. It was Giblin's view that "this patient had to go to the hospital no matter what because of his condition." Id. at 82. Giblin's understanding was that state law would not allow them to abandon Mr. Green, leaving him with non-medical personnel when he was not able to breathe for himself and his respirator was broken. See id., at 110-12 (Giblin: "The patient was not able to breathe for himself. We do not leave the patient behind with nonmedical personnel below the level we are at. Therefore, we have to transport. So I ordered the patient to be transported." Q: Why could you not leave the patient behind with nonmedical personnel? Giblin: "Because that's state law. It's considered abandonment.").
Susan Green testified that her husband did not like hospitals and that the only plan in place for dealing with emergencies such as this one was "never call 911." S. Green Dep. I at 52-54. She testified that during this incident, Walter Green, while he was being ambu-bagged, told her through blinking and writing "no hosp" on his computer that he did not want to go to the hospital. Id. at 84-88; W. Green Dep. IV at 6. Susan Green also testified that she repeatedly explained to the EMS crews that Walter Green was capable of communicating. S. Green Dep. I at 90-92, 102-03; S. Green Dep. II at 99-100. According to Walter Green, only one officer questioned him about his desire to go to the hospital. W. Green Dep. I at 53-55.
In the meantime, Susan Green called William Hill for help fixing the ventilators and he started out from his location approximately forty-five minutes away. Hill Dep. at 56-57, 61-62. She also called a friend and lawyer, Joan Bertin, who arrived within five minutes. Deposition of Joan Bertin, March 13, 2002 (Pl. Ex. I) ("Bertin Dep."), at 24-26. Joan Bertin testified that she repeatedly spoke to the emergency personnel present and confirmed that they understood that Mr. Green was refusing to go to the hospital voluntarily. Id. at 32-33, 37. It is uncontested that there was no written directive such as a living will or health care proxy that either specified Walter Green's wishes or gave Susan Green the authority to make medical decisions on his behalf. S. Green Dep. I at 89-90; W. Green Dep. IV at 27-28. It is also uncontested that Susan Green attempted unsuccessfully to fix the ventilator in the officers' presence. S. Green Dep. I at 92-93.
When the EMTs tried to transfer Walter Green from his wheelchair to a stair chair, Susan Green held onto him, refusing to allow them to move her husband, and screaming "I'm not going to let you take him." Henriquez Dep. at 52-54; S. Green Dep. II at 117-18. She continued to interfere after being asked to remove herself and after Officers Holliday and Henriquez attempted to hold her arms. Henriquez Dep. at 53-54. Eventually, the officers were able to transfer Mr. Green to the stair chair. S. Green Dep. II at 118-19. During the commotion, Susan Green attempted to push past Officer Henriquez. When he "raised his hand to bar" Susan Green's passage, his watch caught on her lip, cutting it and causing her to fall. Testimony of S. Green (Def. Ex. E), at 9; S. Green Dep. I at 105 (the EMT "tried to stop me from getting to my husband, and his watch caught on my lip"); S. Green Dep. II at 120; Henriquez Dep. at 56-59. The crew then attempted to exit the apartment, but Alixandra had piled furniture in front of the doors to block their passage. A. Green Dep. at 151; S. Green Dep. II at 23-24. The officers dismantled the blockade and managed to get Mr. Green out of the apartment, down the stairs, out of the building, and finally to St. Luke's. A. Green Dep. at 166-71, 174-78.
Upon arriving at the hospital, Mr. Green agreed to be admitted to the St. Luke's Intensive Care Unit. Deposition of Tiffany Rieser, M.D., May 10, 2002 (Def. Ex. U) ("Rieser Dep."), at 45. He remained there for two days and then was transferred, at his request, to Columbia Presbyterian Medical Center, where he remained for another three days. S. Green Dep. I at 127-28, 131-32.
Mr. Green claims that as a result of rough treatment in moving him down the stairs in the stair chair, he developed necrotic and gangrenous sores along his spine which later had to be removed. W. Green Dep. IV at 15-24; S. Green Dep. II at 89-97. When these sores developed and what caused them are disputed. Records from both hospitals indicate that no skin abnormalities were recorded at the time of Mr. Green's admissions.See St. Luke's Nursing Admission Notes, March 19, 2000 (Def. Ex. DD); Patient History Form from Columbia Presbyterian, March 21, 2000 (Def. Ex. EE). Walter Green testified that prior to March 2000, he had pressure sores due to his wheelchair, including two along his spine. W. Green Dep. II at 39, 44. Poor nutrition also causes sores and Dr. Inocencia Carrano noted in early 2001 that Mr. Green's nutritional status was "very, very poor." Deposition of Inocencia Carrano, M.D., January 23, 2003 (Def. Ex. T), at 53-54.
Susan Green received treatment on March 19, 2000 for a cut on her lip and a sprained ankle. See St. Luke's Emergency Department Records for Susan Ross Green, March 19, 2000 (Def. Ex. GG). She testified that St. Luke's also treated her for a broken right ankle and a torn ligament in her knee. S. Green Dep. I at 121-22. However, defendants dispute that she had injuries beyond those reflected in the medical records. Defendants' Statement Pursuant to Local Rule 56.1, dated June 30, 2003, ¶ 40. Dr. Donald Rose testified that he saw Susan Green on August 21, 2000 and that she reported that as a result of the March 19, 2000 incident, she had broken a bone in her foot and had instability in her knee. Deposition of Donald Rose, M.D., January 29, 2003 (Def. Ex. Q), at 5-6. When Dr. Rose examined Susan Green in August 2000, a ligament in her right knee was damaged, but there was no way to know when that injury occurred. Id. at 24-25. Dr. Rose also testified he had treated Susan Green for knee problems beginning in 1990. Id. at 13-17.
Alixandra testified that she received a small bruise on her arm as a result of the incident but that it "went away quickly, it wasn't anything." A. Green Dep. at 181-82. Alixandra left the following day for her previously planned trip to England. Id.
The complaint alleges that: (1) defendants violated Walter Green's rights under the ADA; (2) defendants violated Mr. Green's Fourth Amendment rights to be free from unreasonable seizure and use of excessive force, his Fifth and Sixth Amendment rights to be free from police harassment and intimidation, and his rights under the ADA, in violation of 42 U.S.C. § 1983; (3) defendants violated New York's Human Rights Law; (4) defendants committed assault and battery against Walter Green; (5) defendants falsely arrested and imprisoned Mr. Green; (6) the City of New York was negligent in failing to implement a procedure to adequately provide medical evaluations of persons unable to communicate; (7) defendants committed assault and battery against Susan Ross Green; (8) defendants violated 42 U.S.C. § 1983 with respect to Susan Green; and (9) defendants committed assault and battery against Alixandra Green. See Amended Complaint, filed July 12, 2001 (Docket #12). With respect to the second cause of action — Mr. Green's § 1983 claim — the plaintiffs seem to have abandoned the Fifth and Sixth Amendment bases and instead now appear to argue that Mr. Green's Fourth and Fourteenth Amendment rights were violated, along with his rights under the ADA. See Memorandum of Law on Behalf of Plaintiffs in Opposition to Motion for Summary Judgment by Defendants, filed August 1, 2003 (Docket #42) ("P1. Mem."), at 13.
II. DISCUSSION
Summary judgment may not be granted unless "the pleadings, 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." Fed.R.Civ.P. 56(c);see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A material issue is a "dispute over facts that might affect the outcome of the suit under the governing law."Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Thus, "'[a] reasonably disputed, legally essential issue is both genuine and material'" and precludes a finding of summary judgment. McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)).
When determining whether a genuine issue of material fact exists, courts must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. See, e.g., Savino v. City of New York, 331 F.3d 63, 71 (2d Cir. 2003) (citing Anderson, 477 U.S. at 255);McPherson, 174 F.3d at 280. Nonetheless, "mere speculation and conjecture is insufficient to preclude the granting of the motion." Harlen Assocs. v. Incorporated Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001) (citing Western World Ins. Co. v. Stack Oil. Inc., 922 F.2d 118, 121 (2d Cir. 1990)).
A. Americans with Disabilities Act Claim
Walter Green, through his wife, first claims that he is entitled to damages under Title II of the ADA. Mr. Green argues that he was discriminated against based on his disability by the City of New York's policy of not permitting the evaluation of refusals of medical aid by citizens suffering from a difficulty in communicating.
1. Legal Background
Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. "Disability" is defined as, inter alia, "a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual." Id. § 12102(2)(A). In March 2000, Mr. Green suffered from a disability in that ALS affected all his daily activities, including breathing independently and communicating orally. See, e.g., W. Green Dep. I at 16, 27.
Plaintiffs may only maintain a cause of action under Title II of the ADA against the City of New York. Title II only applies to "public entities," defined as "any State and local government" or "any department, agency, special purpose district, or other instrumentality of a State or . . . local government." 42 U.S.C. § 12131(1)(A)-(B). To the extent damages are sought from Paul Giblin for violating Mr. Green's rights under Title II, such a claim cannot proceed. "Title II provides disabled individuals redress for discrimination by a 'public entity.' That term, as it is defined within the statute, does not include individuals." Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n. 8 (8th Cir. 1999) (citations omitted): accord Garcia v. SUNY Health Servs. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001); Walker v. Snvder, 213 F.3d 344, 346 (7th Cir. 2000). cert. denied, 531 U.S. 1190 (2001).
It is unnecessary to reach plaintiffs' arguments that St. Luke's, a private hospital, was a state actor for purposes of the ADA because, as discussed below, none of the factual allegations against the defendants give rise to liability under the ADA.
The City's liability under § 1983 based on violations of the ADA is a separate issue, which is addressed in section II.B.2 below.
2. Discussion
Defendants' main argument is that there is no evidence to support the view that the officers' decision to transport Mr. Green to the hospital was "by reason of" Mr. Green's inability to communicate. The Second Circuit recently decided a case remarkably similar to the instant case in Anthony v. City of New York, 339 F.3d 129 (2d Cir. 2003). In Anthony, officers received a 911 call in which a female caller reported that she was being attacked by a man with a gun. Id. at 133. When the officers reported to the home from which the call was made, the plaintiff, a female with Down's Syndrome, was present and appeared to be calm. She did not communicate with the officers or explain how the 911 call came to be made. Id. Nonetheless, the officers determined that Anthony "seemed to be needing of assistance because she appeared to be slow" and transported her to a hospital. Id. at 141. The plaintiff sued claiming, inter alia, that Title II of the ADA was violated because the officers "perceived [Anthony] as disabled, and . . . arrested her simply because they thought there was something wrong with her." Id. The Second Circuit held that the officer's statement that Anthony "seemed to be needing of assistance because she appeared to be slow" was insufficient to support plaintiff's claim "that discriminatory intent was a motivating factor" in the officers' decision. Id.
Similarly, Walter Green claims that the seizure resulting from the officers' determination that he could not competently refuse transport was due to unlawful discrimination against disabled persons who can communicate only by means of a computer. P1. Mem. at 16. The strongest piece of evidence in support of this conclusion is the testimony of the attorney Joan Bertin, who testified that she asked Giblin, "If Walter could talk and say 'no, he didn't want to go, 'would you still take him? And he said 'no, he wouldn't.'" Bertin Dep. at 38. Plaintiffs' argument is based on the following premise and syllogism. The premise is that if Walter Green could talk, he would not have been transported to the hospital. The syllogism is as follows: an inability to talk is a disability within the meaning of the ADA; Walter Green was unable to talk; therefore Walter Green was transported to the hospital "by reason of" his inability to talk.
The problem with this argument lies essentially in the premise. Accepting as true that Giblin made the statement Bertin reported — that a talking Walter Green would not have been transported — the statement nonetheless lacks probative value due to its ambiguity. The statement could be understood in at least two ways: (1) to refer simply to Mr. Green communicating his desire not to go; and (2) to refer to Mr. Green in a state where he was actually able to draw breath on his own in a manner sufficient to "talk" and utter the words, "I do not want to go to the hospital." No further evidence has been introduced regarding this colloquy between Bertin and Giblin.
In the face of this piece of equivocal testimony is the overwhelming evidence — some of which plaintiffs themselves point to, see Pl. Mem. at 9-10 — showing that the decision to treat Mr. Green was not based on his inability to talk but rather was based on Giblin's perception that Walter Green "was in extremis, and he needed to go to a hospital because he could not breathe for himself." Giblin Dep. at 149-50. Even after Giblin recognized that Mr. Green had become alert, he stated that "the deciding factor and the most critical factor here was the feet that the man could not breathe. He had to be transported to the hospital due to his physical condition." Id. at 199.
To set the scene as perceived by the officers (and using again the facts that have not been disputed by the plaintiffs): at the time the decision to transport Walter Green was made, he was unable to breathe independently of a ventilator. E.g., W. Green Dep. I at 27. Neither of the mechanical ventilators was working. S. Green Dep. I at 92. Walter Green had lost consciousness for some period of time. W. Green Dep. II at 52-57; Ambulance Call Report. His daughter called 911 believing him to be in serious danger that she and Ms. Lopez could not handle alone, was screaming hysterically, and told the dispatcher that Mr. Green was "dying." Transcript of 911 Call; see also W. Green Dep. II at 56 (acknowledging that he could have died as a result of this incident). Emergency medical personnel drained mucus out of Mr. Green's lungs and assisted the family with manually administering oxygen through the ambu-bag. Collins Dep. at 36; Ogude Dep. at 51-52, 71-73; S. Green Dep. I at 73-74; S. Green Dep. II at 71. Susan Green explained her husband's methods of communication to the crews and they understood that he was refusing to go to the hospital. E.g., Bertin Dep. at 32-33, 37. The various crews were on the scene for over an hour and called On-Line Medical Control for assistance because Walter Green was refusing to be transported to the hospital. See Giblin Dep. at 173-75 (approximately one hour and twenty-five minutes elapsed from the time the first crew arrived until Mr. Green arrived at St. Luke's); Computer Print-Out. During the time the crews were in the Greens' apartment, the mechanical ventilators were not fixed and Mr. Green could only breathe if someone was manually pumping oxygen into his trachea, S. Green Dep. II at 100, 115, a procedure that was "very hard to do." S. Green Dep. II at 71.
Given the evidence that Mr. Green was in urgent need of professional medical care, a reasonable jury could not take the single statement from Bertin and use it to conclude that Giblin's decision to have Walter Green removed from his home was based on discrimination against Mr. Green because of his inability to speak. The single statement in Anthony, 339 F.3d at 141, was if anything stronger in its ability to be interpreted as reflecting that the plaintiff was hospitalized solely because of her disability. See id., (officer stated plaintiff "seemed to be needing of assistance because she appeared to be slow"). Yet in Anthony, the statement was insufficient evidence of discriminatory intent to defeat a motion for summary judgment.
In this case, the evidence points inexorably to the conclusion that the officers perceived that Walter Green's condition required urgent medical attention — regardless of Mr. Green's or his family's statements that he did not wish to be hospitalized. Plaintiffs posit that a person talking another language would not have been brought to a hospital had they given an unequivocal refusal to be transported. Pl. Mem. at 16. But the only reasonable conclusion from the evidence is that if this result would have ensued at all, it would only have been because a person talking another language would by definition be breathing on his or her own in making this refusal.
To make the proper comparison, one must imagine a talking person speaking the words, "I do not want to go to the hospital," while non-medically trained personnel were manually pumping air into his trachea, where no mechanical vent was available and so forth. The evidence in the record would not allow a reasonable jury to conclude that the officers would have abandoned such a person.
In sum, the evidence presented by plaintiffs is insufficient to allow the conclusion that Walter Green's initial wish not to be treated was not accommodated because of his inability to speak. Thus his claim under Title II of the ADA cannot withstand the motion for summary judgment.
B. Section 1983 Claims
Section 1983 creates a civil cause of action for a person subjected to "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws [of the United States]," by any person acting under color of law. 42 U.S.C. § 1983. The constitutional bases for the
§ 1983 claims in this case are the Fourth Amendment right to be free from unreasonable seizure and excessive force, and the Fourteenth Amendment right to refuse unwanted medical treatment. See P1. Mem. at 13. The plaintiffs also seek to impose § 1983 liability on the City for violating the ADA.
Defendant Paul Giblin moves for summary judgment arguing that he is entitled to qualified immunity. The City of New York moves for summary judgment on the basis that the plaintiffs have failed to state a claim for municipal liability under § 1983. St. Luke's moves for summary judgment on the § 1983 claims on the basis that St. Luke's is a private hospital and therefore was not acting under color of law. We address each argument in turn.
1. Giblin's Liability
Qualified immunity is "an immunity from suit rather than a mere defense to liability." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985): accord Saucier v. Katz, 533 U.S. 194, 200-01 (2001). Under the doctrine, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted): accord Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993) ("Public officials are entitled to qualified immunity" from suit where "their conduct does not violate a clearly established statutory or constitutional right." (citation omitted)). A public official is immune from suit if it was not clear to the official at the time of the acts complained of that "the interest asserted by the plaintiff was protected by a federal statute or by the Constitution." Robison v. Via, 821 F.2d 913, 920 (2d Cir. 1987) (citation omitted).
In determining whether a defendant is entitled to qualified immunity, a court must initially decide whether "the facts alleged show the officer's conduct violated a constitutional right." Saucier, 533 U.S. at 201. If the official's conduct violated a plaintiffs constitutional rights, a court must then determine whether the right in question was clearly established at the time the violation occurred. See id. at 202 (it must be "clear to a reasonable officer that his conduct was unlawful in the situation he confronted" (citation omitted)). In this case, Mr. Green alleges that Giblin violated (1) his Fourth Amendment right to be free from an unwarranted seizure and excessive force when Giblin transported him against his wishes, and (2) his Fourteenth Amendment right to refuse medical treatment.
The Fourth Amendment does not protect private citizens against all seizures, only those that are "unreasonable." U.S. Const, amend. IV. A "seizure" occurs where, "in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554 (1980). There is no doubt that Mr. Green's transport to the hospital against his wishes was a "seizure" within the meaning of the Fourth Amendment. All claims of excessive force in the course of a "seizure of a free citizen are analyzed under the Fourth Amendment and its 'reasonableness' standard." Graham v. Connor, 490 U.S. 386, 395 (1989). A determination of reasonableness under the Fourth Amendment "requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing government interests at stake." Id. at 396 (internal quotation marks and citations omitted). The reasonableness of the force employed "must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id.
The Fourteenth Amendment protects the right of a competent person to refuse unwanted medical treatment. See, e.g., Cruzan v. Director. Mo. Dep't of Health, 497 U.S. 261, 278 (1990) ("The principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions."). Whether an individual's constitutional rights have been violated, however, "'must be determined by balancing [the individual's] liberty interest against the relevant state interests.'" Id. at 279 (quoting Youngberg v. Romeo, 457 U.S. 307, 321 (1982)). In the context of refusing medical treatment, the relevant state interests include the protection and preservation of human life, safeguarding the personal element of an individual's choice between life and death, and guarding against potential abuses by surrogates. Id. at 281. In Cruzan, the Court held that it is permissible under the Due Process Clause for a state to require "clear and convincing" evidence of an incompetent person's wishes before life sustaining treatment is terminated. Id. at 284. New York requires "clear and convincing" evidence in this circumstance.In re Storar, 52 N.Y.2d 363, 378-79(1981).
In this case, plaintiffs have not established that Giblin violated Walter Green's constitutional rights under either the Fourth or the Fourteenth Amendments. As detailed above, accepting all inferences in favor of plaintiffs, the evidence establishes that the emergency crews were called to the scene by the persons ostensibly in charge of assisting Walter Green; that one of these individuals told 911 that Walter Green was "dying" and that they needed help; that Walter Green was unable to breathe on his own for the entire period the officers were there; that both his mechanical ventilators were not working; that he could breathe only by means of individuals manually pumping air through his trachea, a procedure that was difficult to perform; that there were no licensed medical personnel in his home; and that he lost consciousness for some period of time prior to the arrival of the emergency crews. W. Green Dep. I at 27; W. Green Dep. II at 52-57; S. Green Dep. I at 92; S. Green Dep. II at 66, 71; Transcript of 911 Call. The manual pumping of air continued for the entire time the officers were on the scene — a total of approximately 1 1/2 hours. Giblin Dep. at 173-75. While the crews were told that William Hill was on his way to the Green's home to fix the ventilators, he did not arrive while the crews were at the home. Hill Dep. at 60-62. Giblin determined that Mr. Green needed to be transported to the hospital because he could not breathe on his own. Giblin Dep. at 82, 108.
Plaintiffs have presented evidence that Walter Green communicated with the officers that he did not wish to go to the hospital. But they have not presented any evidence upon which a reasonable jury could base a determination that any of the officers acted unreasonably under a Fourth Amendment analysis by bringing Mr. Green to a hospital where his condition could be properly treated and stabilized. As noted, a person's right to be free from unreasonable seizures must be balanced against other interests. See Graham, 490 U.S. at 396. Here, the state had a legitimate interest in appropriately responding to Alixandra Green's call for help, preserving human life, and ensuring that any refusal of medical aid was fully informed and made in a non-crisis atmosphere. See Blouin v. Spitzer, 213 F. Supp.2d 184, 191-93 (N.D.N.Y. 2002) (balancing seizure used to subject plaintiff to non-consensual medical treatment against state interests in preserving life and controlling who has the right to decline treatment). The state also has an interest in protecting its employees from liability for decisions such as the one in this case; imposing liability in this circumstance could cause future decision makers to err on the side of leaving critically ill patients without professional medical assistance.
With respect to the Fourteenth Amendment claim, the same balancing of interests reflects that there was no violation inasmuch as the crisis atmosphere would reasonably have caused the officers to conclude that this was not a setting in which Walter Green could make an informed and competent decision regarding his treatment. This is particularly true given the absence of any medical personnel in the home and the absence of a working mechanical ventilator. From the officers' point of view, had the ambu-bag stopped functioning or had the individuals in the apartment been unable to continue manually administering oxygen, their leaving Walter Green would have resulted in his death. Had that occurred, no doubt Mr. Green's relatives would have filed suit arguing that it was unreasonable for the crews to have accepted Mr. Green's request that they depart in light of the extreme danger of the situation.
Rather, the officers here reasonably concluded that it was more appropriate to transport Mr. Green to the hospital and risk the disruption that this entailed rather than leaving him at home with the risk that his family and caretaker would be unable to handle his critical medical condition. That Mr. Green subsequently consented to treatment once he arrived at St. Luke's, Rieser Dep. at 45, and remained hospitalized for five days, S. Green Dep. I at 127-28, 131-32, support the officers' conclusion that he required further medical care than the paramedics could provide. As the district court stated inAnthony, "[i]n light of the difficulty of this decision, these officers should not be held liable for making the choice that they did." Anthony v. City of New York, 2001 WL 741743, at *6 (S.D.N.Y. July 2, 2001),aff'd, 339 F.3d 129 (2d Cir. 2003); see also Blouin, 213 F. Supp.2d at 193-95 ( Fourteenth Amendment claim based on advocacy of continued medical treatment contrary to position taken by plaintiff's surrogate failed because state interests outweighed plaintiff s); Vazquez v. Marciano, 169 F. Supp.2d 248, 253 (S.D.N.Y. 2001) (police officer entitled to qualified immunity for "forcing" plaintiff to receive medical treatment where a reasonable officer could have concluded that plaintiff was in need of medical assistance).
Finally, to the extent that Walter Green asserts an excessive force claim based on the manner in which he was removed from the apartment and transported to the hospital, there is no evidence to support the contention that Giblin or any of the other officers acted unreasonably in using whatever force was necessary to effectuate Mr. Green's transport to the hospital.
In sum, Walter Green has not established any violation of his Fourth or Fourteenth Amendment rights and his § 1983 claims against Giblin for damages based on these alleged constitutional violations must fail. In addition, since Mr. Green has failed to state a claim under Title II of the ADA, his claim against Giblin for damages under § 1983 based on violation of the ADA also must fail. Therefore, no further inquiry is necessary and summary judgment on Walter Green's § 1983 claims should be granted in Giblin's favor.
2. Municipal Liability of the City of New York
To hold a municipality, such as the City of New York, liable as a "person" within the meaning of § 1983, a plaintiff must show that the municipality, as distinguished from the municipality's employees, is responsible for the deprivation complained of. In Monell v. Dep't of Soc. Servs., the Supreme Court held that municipalities may not be held liable "unless action pursuant to official municipal policy of some nature caused a constitutional tort." 436 U.S. 658, 691 (1978). The municipality's liability arises if "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers" or is conduct "pursuant to governmental 'custom' even though such a custom has not received formal approval through the body's official decisionmaking channels." Id. at 690-91. Municipal liability may be imposed for a single decision by a policymaker when that person's decisions "'may fairly be said to represent official policy.'" Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986) (quoting Monell, 436 U.S. at 694).
Plaintiffs claim that the City of New York has a "policy of not permitting the evaluation of refusals of medical aid (RMA) by competent citizens suffering from a communications disability." Pl. Mem. at 16. The existence of a policy "not to provide services to the disabled," plaintiffs argue, is shown in two ways: first, through the fact that the elaborate procedures provided for in the stated policy of the City regarding refusals of medical treatment are not available "by custom or by general knowledge" to persons who are either deaf or not able to speak; and second, through a City policy of inadequate training and supervision. Id. at 16-17.
Plaintiffs' claim suffers from two separate defects. First, to the extent that there existed an improper policy not to provide assistance to individuals who are unable to speak, Walter Green was not injured by that policy. As already discussed, a reasonable jury could only conclude that the reason Walter Green was taken to the hospital was because of the nature of his medical condition — not because of his inability to speak. In other words, Walter Green has not shown that a spoken statement of "I do not want to go to the hospital" — delivered in this scenario while the non-medical personnel were forcing air into his trachea by means of the ambu-bag — would have resulted in any different decision by the emergency workers.
Second, plaintiffs have not even shown the existence of a City policy not to provide services to those unable to speak. Plaintiffs claim that review by the physician at the On-Line Medical Control Center is not available to people with communications disabilities. To support this contention, plaintiffs cite to portions of Giblin's testimony, see P1. Mem. at 9, 16, in which he testified as follows: "As far as I know, if the doctor cannot speak with the patient, he cannot [accept a] R[efusal of] M[edical] A[id from] him over the phone. It has to be done by a supervisor on the scene." Giblin Dep. at 140. This testimony, however, does not indicate the existence of a policy not to evaluate RMAs made by the disabled; it just indicates a different — and likely more appropriate — method of evaluation. Indeed, the evidence shows that having a supervisor respond to the scene when necessary is also part of the established FDNY procedure. See Refusal of Medical Aid § 5.5 (P1. Ex. D). There is no basis for concluding that the City violated the rights of those unable to speak under Monell.
Plaintiffs also argue that the City should be held liable based on a failure to train and supervise "the supervisors in charge of carrying out the evaluation of the refusals of medical assistance by competent disabled persons." P1. Mem. at 17. A government policy of failing to train or supervise its officers can demonstrate the existence of an official municipal policy or custom. See City of Canton v. Harris, 489 U.S. 378, 388-89 (1989). However, a municipality is liable "only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." Id. at 388. The Second Circuit has held that to establish that a municipality's failure to train violated a plaintiff's constitutional rights, the plaintiff must meet three requirements:
First, the plaintiff must show that a policymaker knows "to a moral certainty" that her employees will confront a given situation . . . Second, the plaintiff must show that the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation. . . . Finally, the plaintiff must show that the wrong choice by the city employee will frequently cause the deprivation of a citizen's constitutional rights.Walker v. City of New York, 974 F.2d 293, 297-98 (2d Cir. 1992) (citations omitted), cert. denied, 507 U.S. 961 972 (1993). "That a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the city, for the officer's shortcomings may have resulted from factors other than a faulty training program." City of Canton, 489 U.S. at 390-91.
None of the Walker requirements are met in this case. First, plaintiffs have provided no evidence that a policymaker knew to a "moral certainty" that this was the sort of situation that City workers would face. Instead, the only evidence in the record shows this to be a "rare" situation that under Walker is explicitly not covered by the duty to train. 974 F.2d at 297. Second, plaintiffs have provided no evidence that training would have made any difference to the outcome of this matter as Mr. Green had to be taken to a hospital with a working ventilator. Finally, there is no evidence that this is the sort of case where a wrong choice will "frequently" cause the deprivation of constitutional rights.
Because Walter Green has submitted no evidence raising a genuine issue of material fact, the City's motion for summary judgment on his Monell claims must be granted.
3. St. Luke's Is Not a Proper Defendant
St. Luke's argues that the hospital is not liable to plaintiffs under § 1983 because the private hospital was not acting "under color of law." See Okunieff v. Rosenberg, 996 F. Supp. 343 (S.D.N.Y. 1998),aff'd, 166 F.3d 507 (2d Cir. 1999), cert. denied, 528 U.S. 1144 (2000). Plaintiffs argue that since the St. Luke's paramedics were participating in the 911 system under the command of FDNY, the hospital should be considered a state actor for purposes of § 1983 liability. Pl. Mem. at 14.
As already noted, none of the personnel at the scene was shown to have acted improperly under § 1983. But the claim against St. Luke's suffers from a separate defect: plaintiffs have not named the individual St. Luke's paramedics as defendants in this action and any attempt to name them now would run afoul of the three-year statute of limitations applicable to § 1983 suits of this kind. See, e.g., Pearl v. City of Long Beach, 296 F.3d 76, 79-80 (2d Cir. 2002), cert. denied, 123 S.Ct. 1574 (2003). Accordingly, none of the actions of these individuals are at issue.
With respect to St. Luke's itself, plaintiffs have not even stated a claim based on Mr. Green's admission to this hospital because Mr. Green consented to treatment and hospitalization once he arrived at St. Luke's. Rieser Dep. at 45. Thus, the Court can only assume that the plaintiffs' theory in suing St. Luke's under § 1983 is that the hospital is somehow vicariously liable for the actions of its employees who responded to the scene.
Monell is clear, however, that vicarious liability is not available in a § 1983 suit, 436 U.S. at 691-94, and thus any such claim would have to fail for this reason as well. The Second Circuit has rejected respondeat superior liability for a private employer under § 1983.See Rojas v. Alexander's Dep't Store, 924 F.2d 406, 408 (2d Cir. 1990) ("Private employers are not liable under § 1983 for the constitutional torts of their employees." (citations omitted)), cert. denied, 502 U.S. 809 (1991): accord Iskander v. Vill. of Forest Park. 690 F.2d 126, 128-29 (7th Cir. 1982); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir. 1982); Draeger v. Grand Cent. Inc., 504 F.2d 142, 145-46 (10th Cir. 1974). Accordingly, plaintiffs have failed to state a claim against St. Luke's under § 1983.
4. Susan Green's § 1983 Claim
Susan Green has asserted a claim under § 1983 based on her alleged wrongful detention in her home for a period of over 1/2 hours and the defendants' alleged use of excessive force against her. See P1. Mem. at 19.
Under New York law, a plaintiff claiming false imprisonment "must show that: (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged."Broughton v. State, 37 N.Y.2d 451, 456 (1975) (citing authorities). Susan Green has not presented any argument or evidence which establishes that she was confined on March 19, 2000. Throughout the course of the P/2 hours that she was allegedly unlawfully detained, there is no evidence that she was ever prevented from leaving her home. In fact, the only evidence on this point is that she instructed her daughter to prevent the emergency medical personnel from leaving the apartment with Mr. Green and that Alixandra subsequently blocked the door with furniture. S. Green Dep. II at 123-24. Therefore, to the extent her § 1983 claim is premised on false imprisonment, it must be dismissed.
To establish the use of excessive force, a plaintiff must show that the force used constituted an unreasonable seizure in violation of the Fourth Amendment. Graham, 490 U.S. at 395. "[T]he 'reasonableness' inquiry in an excessive force case is an objective one: the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. at 397 (citations omitted). The reasonableness of the force employed "must be judged from the perspective of a reasonable officer on the scene." Id. at 396.
The only individual defendant in this case is Giblin and there is no evidence whatsoever that he used any excessive force against Susan Green. While Plaintiffs' Rule 56.1 Statement states vaguely that Susan Green was "manhandled," the cite to the record provided does not support this conclusion. Plaintiffs' Statement Pursuant to Local Rule 56.1, dated July 30, 2003, ¶ 25 (citing S. Green Dep. II at 117-26, which describes how Susan Green came into contact with the officer's watch and "fell over and broke [her] leg," and how two officers had to help her stand as a result).
Because Susan Green has failed to demonstrate that excessive force was used against her by Giblin, summary judgment in favor of defendants must be granted.
Susan Green has not sued Officer Henriquez and, in any event, has not provided evidence that Henriquez used excessive force against her.See Section II.E.2 below. Thus, her § 1983 claim cannot be based on his actions. Moreover, Giblin could not be liable for Henriquez's actions as Henriquez's supervisor. A § 1983 defendant must be "personally involved" in the civil rights violation alleged before liability may be imposed. See, e.g., Black v. Coughlia 76 F.3d 72, 74 (2d Cir. 1996).
C. New York Human Rights Law Claim
Walter Green also claims that defendants violated his rights under the New York Human Rights Law, N.Y. Exec. Law §§ 290-301. This law states, inter alia, that it is "an unlawful discriminatory practice for any person, being the owner, . . . agent or employee of any place of public accommodation . . . because of the disability. . . . of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof." N.Y. Exec. Law § 296(2)(a). Mr. Green argues that he was denied a privilege that is given to persons without disabilities when he was denied his right to determine his medical treatment and to refuse medical treatment because he was disabled and not able to verbally state his wishes.
As stated above in the context of Walter Green's claim under Title II of the ADA and under § 1983, no reasonable jury could conclude that defendants acted with the intent to discriminate against persons unable to communicate when they determined that Mr. Green's medical condition necessitated his transport to the hospital. Thus, under the Human Rights Law, plaintiffs have failed to establish that Mr. Green was discriminated against "because of" his disability.
D. False Arrest and False Imprisonment Claims
The defendants next seek summary judgment on Walter Green's state law claims for false arrest and false imprisonment. To state a cause of action for false arrest under New York law, a plaintiff "must show, inter alia, that the defendant intentionally confined him without his consent and without justification." Wevant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (citing Broughton, 37 N.Y.2d at 456). Similarly, there is no claim for false imprisonment where the officers' conduct is "otherwise privileged." Broughton, 37 N.Y.2d at 456-57. As previously discussed, transporting Mr. Green to the hospital was justified by the circumstances and thus these claims must fail as well.
E. Assault and Battery Claims
All three of the Greens have asserted assault and battery claims under state law generally against "the defendants."
In New York, an assault is "an intentional placing of another person in fear of imminent harmful or offensive contact," and a battery is "an intentional wrongful physical contact with another person without consent." United Nat'l Ins. Co. v. Waterfront N.Y. Realty Corp., 994 F.2d 105, 108 (2d Cir. 1993). In the context of state officers performing their lawful duties, "New York State law regarding assault and battery parallels the federal laws regarding excessive force." LaLonde v. Bates, 166 F. Supp.2d 713, 719 (N.D.N.Y. 2001). Thus, an officer will not be found liable for assault and battery based on a lawful arrest where there is "no use of force[,] . . . unreasonable contact, or the threat of unreasonable contact." Yanez v. City of New York, 29 F. Supp.2d 100, 116 (E.D.N.Y. 1998).
1. Walter Green
With respect to Walter Green's assault and battery claim, plaintiffs argue that "[u]nder New York law, the rendering of medical treatment against a competent person's expressed wishes absent exigent circumstances constitutes assault." Pl. Mem. at 22 (citing Oates v. N.Y. Hosp., 131 A.D.2d 368, 369 (1st Dep't 1987)). As already discussed, "exigent circumstances" existed in this case inasmuch as it was unclear whether Walter Green would be safe remaining in his home in the absence of medical personnel and a working ventilator.
In any event, the injuries allegedly sustained by Walter Green are not alleged to have been caused by the rendering of unwanted medical treatment. Rather, the injuries were apparently caused by the "rough treatment" of Mr. Green as they moved him into the stair chair and down the stairs out of his apartment. P1. Mem. at 11-12. Nonetheless, Walter Green has not offered any evidence that the force used in removing him from his home was not simply the minimum required in order to effectuate that purpose. Furthermore, to the extent Mr. Green suffered injuries as a result of his transfer to the stair chair and transport by the emergency medical technicians, those individuals are immune from liability absent a showing of "gross negligence." N.Y. Pub. Health Law § 3013; Estate of Klinger v. Corona Cmty. Ambulance Corps., Inc., 301 A.D.2d 495, 496 (2d Dep't 2003). In sum, Walter Green has failed to produce evidence which would allow a jury to conclude that force, unreasonable contact, or the threat of unreasonable contact, Yanez, 29 F. Supp.2d at 116, was used against him.
2. Susan Green
Susan Green's battery claim is based upon the physical contact she had with Officer Henriquez, which caused a cut lip and other injuries. But the undisputed evidence establishes that Susan Green sustained her injuries when her own actions caused her to come in contact with Officer Henriquez's watch and fall. S. Green Dep. I at 105; S. Green Dep. II at 120; Henriquez Dep. at 56-59. She testified that she was attempting to go towards her husband to prevent him from being removed from the apartment when Henriquez raised his arms to try to block her. S. Green Dep. II at 120. There is no evidence that Henriquez swung his arms at Susan Green — let alone swung them unnecessarily. Nor is there any evidence that he intended for his watch to come into physical contact with her lip.
Thus, the evidence taken in the light most favorable to plaintiff indicates that Officer Henriquez's actions were entirely reasonable under the circumstances. Although the only intent necessary to support a claim of battery is the intent to make contact, see, e.g., Miele v. United States, 800 F.2d 50, 53 (2d Cir. 1986), in this case there is not even any evidence that Officer Henriquez intended to make contact with Susan Green. Thus, the assault and battery claim based on his actions must be dismissed.
3. Alixandra Green
Alixandra Green testified at her deposition that two men, whom she believed were police officers but could not be sure, lifted her up and put her to the side so that they could get out of the door with Mr. Green. In doing so, each man held one of Alixandra's arms. A. Green Dep. at 163-66. Other than that, she testified that she had no other physical contact with the police. Id. at 165-66. She was not hit or struck by any police officer or EMS personnel. Id. at 190. As for any injuries, Alixandra testified that she sustained "a small bruise but it went away quickly, it wasn't anything." Id. at 182-83.
Alixandra's assault and battery claim must be dismissed because she has shown no evidence that the officer used "force[,] . . . unreasonable contact, or the threat of unreasonable contact." Yanez, 29 F. Supp.2d at 116. The officers' actions in attempting to leave the apartment were entirely reasonable and thus the limited contact they had with Alixandra was justified under the circumstances. The evidence indicates only that the officers were preventing Alixandra from obstructing their passage out of the apartment in the course of performing their duties of rendering medical care to Mr. Green.
F. Negligence Claim Against the City
Plaintiffs' final claim is that the City of New York was negligent in failing to properly train and supervise its employees in evaluating individuals with severe disabilities. Under New York law, the elements of a negligence claim are: (1) defendant owed a duty to plaintiff; (2) defendant breached that duty; and (3) defendant's breach was the actual and proximate cause of the plaintiff's injuries. See, e.g., Lombard v. Booz-Allen Hamilton. Inc., 280 F.3d 209, 215 (2d Cir. 2002). A cause of action for negligence "is legally sustainable against a city when the injured party demonstrates that he was injured due to the negligent training and supervision of a law enforcement officer." Barr v. Albany County, 50 N.Y.2d 247, 257 (1980) (citation omitted).However, this does not alter plaintiff's burden of proving, inter alia, that the failure to train and supervise violated the standard of care and caused the alleged injury. See id. at 257-58. If the City's failure to train and supervise its personnel is a substantial factor in producing the injury, then it may be considered a proximate cause of that injury. See Mortensen v. Mem'l Hosp., 105 A.D.2d 151, 158 (1st Dep't 1984).
For the reasons already stated with respect to the Monell claim, section II.B.2 above, plaintiffs have not produced any evidence demonstrating that Walter Green's alleged injuries were caused by a lack of required training. Thus, plaintiffs have failed to demonstrate any genuine issue of material fact that would preclude the finding of summary judgment in favor of defendants.
G. Effect of State Court Judgment
St. Luke's argues that Susan Green's claims against the hospital are barred by res judicata and/or collateral estoppel. After a trial in state court, Susan Green was recently found liable for negligence for kicking Chris Collins, one of the St. Luke's paramedics who responded to the scene in this incident. Verdict Sheet in Collins v. Green, Index No. 104891/01, filed April 22, 2003 (Def. Ex. V). Because Susan Green's claims against St. Luke's have been dismissed on other grounds, the Court need not reach this issue.
Conclusion
For the foregoing reasons, defendants' motion for summary judgment should be granted.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Honorable Richard M. Berman, 40 Centre Street, New York, New York 10007, and to the undersigned at the same address. Any request for an extension of time to file objections must be directed to Judge Berman. 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. Am, 474 U.S. 140 (1985).