Hill v. NYC Dept. of Health & Mental Hygiene

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK VIVIAN HILL, Plaintiff, -against- 22-CV-7203 (LTS) NYC DEPT. OF HEALTH & MENTAL ORDER TO AMEND HYGIENE; MENTAL HYGIENE LEGAL SERVICES, Defendants. LAURA TAYLOR SWAIN, Chief United States District Judge: Plaintiff Vivian Hill, who is appearing pro se, brings this action asserting claims against the Department of Health & Mental Hygiene of the City of New York (“DOHMH”)1 and New York State’s Mental Hygiene Legal Service (“MHLS”). She alleges that Defendants violated her rights in connection with an Assisted Outpatient Treatment (“AOT”) plan and during proceedings in which MHLS has represented her. Plaintiff seeks an emergency order barring DOHMH from enforcing her AOT plan and interacting with her. She also seeks an order barring MHLS from representing her as her attorney. Finally, she requests that the Court grant her application requesting the appointment of pro bono counsel in this action. By order dated August 24, 2022, the Court granted Plaintiff’s request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. For the reasons set forth below, the Court dismisses Plaintiff’s claims against MHLS under the Eleventh Amendment and grants Plaintiff 60 days to file an amended complaint against DOHMH. The Court also denies Plaintiff’s request

1 DOHMH has the capacity to be sued under the New York City Charter. See N.Y. City Charter ch. 22, § 564. for injunctive and declaratory relief, as well as her request for the appointment of pro bono counsel. STANDARD OF REVIEW The Court must dismiss an IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary

relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction of the claims raised. See Fed. R. Civ. P. 12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits – to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil

Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief. Rule 8 of the Federal Rules of Civil Procedure requires a complaint to include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible – not merely possible – that the pleader is entitled to relief. Id. BACKGROUND The following allegations are drawn from the complaint.2 Since 2017, Defendants have

“illegally withheld Vivian Hill’s medical records . . . denying HIPAA and Patients Rights petitions[.]” (ECF 2, at 8.) Defendants also “maliciously denied discovery and prohibited Vivian an agent’s support and legal document rights . . . [which] precluded an adequate defense, getting able counsel, and prevented proper medical treatment and monitoring – adversely affecting Plaintiff’s health and welfare.” (Id.) She asserts that “defendant’s petitioners didn’t establish (a good/valid clinical or legal relationship) and never met the Plaintiff in the first instance.” (Id. at 9.) “At other times, attorneys amongst the defendants fraudulently alleged to represent Plaintiff without her permission – to the detriment and benefit of her adversaries.” (Id.) Plaintiff contends that she was “discriminated against and (retaliated) by the defendants for filing written complaints and seeking justice from racial discrimination based upon her being

Afro-American, elderly, and partially disabled.” (Id.) Plaintiff previously brought a similar complaint, alleging many of the same allegations. See Ann (Hill) v. Wiviott, ECF 1:21-CV-9210, 2 (S.D.N.Y. Feb. 22, 2022). The Court granted Plaintiff leave to file an amended complaint. See ECF 1:21-CV-9210, 6. Plaintiff did not file an amended pleading, and the Court dismissed the action for failure to state a claim on which relief may be granted. See ECF 1:21-CV-9210, 7.

2 All grammar, spelling and punctuation are as in the original. DISCUSSION A. Mental Hygiene Legal Service MHLS is “a state-funded legal services agency under the direction of the New York State Office of Court administration.” Fiske v. Letterman, 401 F. Supp.2d 362, 378 (S.D.N.Y. 2005). “[A]s a general rule, state governments may not be sued in federal court unless they have waived their Eleventh Amendment immunity, or unless Congress has abrogated the states’ Eleventh

Amendment immunity[.]” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009). “The immunity recognized by the Eleventh Amendment extends beyond the states themselves to state agents and state instrumentalities that are, effectively, arms of a state.” Id. New York has not waived its Eleventh Amendment immunity to suit in federal court, and Congress did not abrogate the states’ immunity in enacting 42 U.S.C. § 1983. See Trotman v. Palisades Interstate Park Comm’n, 557 F.2d 35, 40 (2d Cir. 1977). Eleventh Amendment immunity bars claims for monetary damages, injunctive relief, and retrospective declaratory relief. See Green v. Mansour, 474 U.S. 64, 72-74 (1985); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984). MHLS enjoys Eleventh Amendment immunity from lawsuits because the Office of Court Administration “is an arm of

the state,” Posr v. Court Officer Shield No. 207, 180 F.3d 409, 414 (2d Cir. 1999). Here, Plaintiff’s claims against MHLS are barred under the Eleventh Amendment. For the same reason, this Court cannot order the injunctive relief Plaintiff is seeking, that is, an order barring MHLS from representing her. Thus, the Court dismisses Plaintiff’s Section 1983 claims against MHLS and denies her request for injunctive relief. See 28 U.S.C. § 1915(e)(2)(B)(iii). B. Department of Health & Mental Hygiene Plaintiff asserts claims against DOHMH in connection with her AOT plan. As explained below, these claims may be brought against this municipal organization only if Plaintiff can show that DOHMH implemented a policy, custom, or practice that caused Plaintiff to suffer a constitutional harm. When a plaintiff sues a municipal organization under Section 1983, it is not enough for the plaintiff to allege that one of the municipality’s employees or agents engaged in some wrongdoing. The plaintiff must show that the municipality itself caused the violation of the

plaintiff’s rights. See Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011) (“A municipality or other local government may be liable under this section [1983] if the governmental body itself ‘subjects’ a person to a deprivation of rights or ‘causes’ a person ‘to be subjected’ to such deprivation.”) (quoting Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 692 (1978)); Cash v. Cnty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011). To state a Section 1983 claim against a municipality, the plaintiff must allege facts showing: (1) the existence of a municipal policy, custom, or practice, and (2) that the policy, custom, or practice caused the violation of the plaintiff’s constitutional rights. See Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012); Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown,

520 U.S. 397, 403 (1997) (internal citations omitted). Plaintiff complains of her AOT plan, interactions between her and DOHMH employees, and alleged discriminatory practices. She does not, however, state facts describing any conduct on the part of DOHMH or how that conduct amounted to a violation of one of her constitutional rights. For example, she states that DOHMH employees failed to establish a relationship with her, but she does not state facts suggesting that this alleged failure amounted to a municipal policy, custom, or practice that resulted in the violation of Plaintiff’s constitutional rights. As for her allegation that DOHMH discriminated and retaliated against her for filing complaints, she does not state facts describing this alleged discrimination or retaliation. Plaintiff therefore fails to state a claim against DOHMH or state facts showing that she is entitled to any injunctive relief regarding her AOT plan. LEAVE TO AMEND Plaintiff proceeds in this matter without the benefit of an attorney. District courts generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its

defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the Second Circuit has cautioned that district courts “should not dismiss [a pro se complaint] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). The Court grants Plaintiff 60 days’ leave to file an amended complaint against DOHMH because Plaintiff may be able to state facts in support of a claim against this municipal defendant. In the “Statement of Claim” section of the amended complaint form, Plaintiff must provide: 1. a short and plain statement of the relevant facts supporting her claims against

DOHMH. 2. Plaintiff should include all of the information in the amended complaint that Plaintiff wants the Court to consider in deciding whether the amended complaint states a claim for relief. That information should include: a. the names and titles of all relevant people; b. a description of all relevant events, including what each defendant did or failed to do, the approximate date and time of each event, and the general location where each event occurred; c. a description of the injuries Plaintiff suffered; and d. the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief. Essentially, Plaintiff’s amended complaint should tell the Court: who violated her federally protected rights and how; when and where such violations occurred; and why Plaintiff is entitled to relief. Because Plaintiff’s amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wants to include from the original complaint must be repeated in the amended complaint. CONCLUSION The Court dismisses Plaintiff’s claims against MHLS under the Eleventh Amendment. See 28 U.S.C. § 1915(e)(2)(B)(iii).

Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court’s Pro Se Intake Unit within 60 days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 22-CV-7203 (LTS). An Amended Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and she cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted. The Court denies Plaintiff’s request for injunctive relief (ECF 5, 7) and directs the Clerk of Court to terminate the two motions. The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). SO ORDERED.

Dated: October 17, 2022 New York, New York

/s/ Laura Taylor Swain LAURA TAYLOR SWAIN Chief United States District Judge UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

CVE TT a (clu ber if has b Write the full name of each plaintiff. evened) me eNews

against AMENDED

□ COMPLAINT ee Do you want a jury trial? LlYes ULINo

Write the full name of each defendant. If you need more space, please write “see attached” in the space above and attach an additional sheet of paper with the full list of names. The names listed above must be identical to those contained in Section Il.

NOTICE The public can access electronic court files. For privacy and security reasons, papers filed with the court should therefore not contain: an individual’s full social security number or full birth date; the full name of a person known to be a minor; or a complete financial account number. A filing may include only: the last four digits of a social security number; the year of an individual’s birth; a minor’s initials; and the last four digits of a financial account number. See Federal Rule of Civil Procedure 5.2.

Rev. 2/10/17

I. BASIS FOR JURISDICTION Federal courts are courts of limited jurisdiction (limited power). Generally, only two types of cases can be heard in federal court: cases involving a federal question and cases involving diversity of citizenship of the parties. Under 28 U.S.C. § 1331, a case arising under the United States Constitution or federal laws or treaties is a federal question case. Under 28 U.S.C. § 1332, a case in which a citizen of one State sues a citizen of another State or nation, and the amount in controversy is more than $75,000, is a diversity case. In a diversity case, no defendant may be a citizen of the same State as any plaintiff. What is the basis for federal-court jurisdiction in your case? [] Federal Question L] Diversity of Citizenship A. If you checked Federal Question Which of your federal constitutional or federal statutory rights have been violated?

B. If you checked Diversity of Citizenship 1. Citizenship of the parties Of what State is each party a citizen? The plaintiff , ,is a citizen of the State of (Plaintiff's name)

(State in which the person resides and intends to remain.) or, if not lawfully admitted for permanent residence in the United States, a citizen or subject of the foreign state of

If more than one plaintiff is named in the complaint, attach additional pages providing information for each additional plaintiff.

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If the defendant is an individual:

The defendant, , is a citizen of the State of (Defendant’s name)

or, if not lawfully admitted for permanent residence in the United States, a citizen or subject of the foreign state of . If the defendant is a corporation: The defendant, , is incorporated under the laws of the State of and has its principal place of business in the State of or is incorporated under the laws of (foreign state) and has its principal place of business in . If more than one defendant is named in the complaint, attach additional pages providing information for each additional defendant.

II. PARTIES A. Plaintiff Information Provide the following information for each plaintiff named in the complaint. Attach additional pages if needed.

First Name Middle Initial Last Name

Street Address

County, City State Zip Code

Telephone Number Email Address (if available) B. Defendant Information To the best of your ability, provide addresses where each defendant may be served. If the correct information is not provided, it could delay or prevent service of the complaint on the defendant. Make sure that the defendants listed below are the same as those listed in the caption. Attach additional pages if needed. Defendant 1: First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code Defendant 2: First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code Defendant 3: First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code Defendant 4: First Name Last Name

Current Job Title (or other identifying information)

Current Work Address (or other address where defendant may be served)

County, City State Zip Code III. STATEMENT OF CLAIM Place(s) of occurrence:

Date(s) of occurrence: FACTS: State here briefly the FACTS that support your case. Describe what happened, how you were harmed, and what each defendant personally did or failed to do that harmed you. Attach additional pages if needed. INJURIES: If you were injured as a result of these actions, describe your injuries and what medical treatment, if any, you required and received.

IV. RELIEF State briefly what money damages or other relief you want the court to order. V. PLAINTIFF’S CERTIFICATION AND WARNINGS By signing below, I certify to the best of my knowledge, information, and belief that: (1) the complaint is not being presented for an improper purpose (such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law or by a nonfrivolous argument to change existing law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil Procedure 11. agree to notify the Clerk's Office in writing of any changes to my mailing address. I understand that my failure to keep a current address on file with the Clerk's Office may result in the dismissal of my case.

Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Dated Plaintiff's Signature

First Name Middle Initial Last Name

Street Address

County, City State Zip Code

Telephone Number Email Address (if available)

I have read the Pro Se (Nonprisoner) Consent to Receive Documents Electronically: OYes [LINo If you do consent to receive documents electronically, submit the completed form with your complaint. If you do not consent, please do not attach the form.

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