Montgomery v. Cuomo
This text of 291 F. Supp. 3d 303 (Montgomery v. Cuomo) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
*306Paloma A. Capanna, Esq., 633 Lake Road, Webster, New York, 14580, For Plaintiffs.
Monica A. Connell, Esq., William J. Taylor, Jr., Esq., Office of the New York State Attorney General 120 Broadway, New York, New York, 10271, For Andrew M. Cuomo, Ann Marie T. Sullivan, Michael C. Green and George P. Beach, II.
Rudolph M. Baptiste, Esq., Office of the Suffolk County Attorney, 100 Veterans Memorial Highway, P.O. Box 6100, Hauppauge, New York, 11788, For Suffolk County.
Catherine A. Brennan, Esq., James F. Farrell, Jr., Esq., Fumuso Kelly DeVerna Snyder Swart & Farrell, LLP, 110 Marcus Boulevard, Suite 500, Hauppauge, New York, 11788, For Eastern Long Island Hospital.
DECISION AND ORDER
CHARLES J. SIRAGUSA, United States District Judge
INTRODUCTION
New York Mental Hygiene Law ("MHL") § 9.46 requires mental-health treatment providers to report patients who appear to pose a threat of serious harm to themselves or others. Then, if the patient reported under MHL § 9.46 has a New York State firearms license, New York Penal Law ("PL") 400.00(11)(b) requires that the license be suspended or revoked, and that the patient's firearms be seized. Plaintiffs bring this action pursuant to, inter alia ,
BACKGROUND
New York's Secure Ammunition and Firearms Enforcement Act of 2013 (the "SAFE Act") was enacted in January 2013, following a series of mass shootings around the United States by mentally disturbed individuals. At least some of the shooters in these incidents were able to legally obtain firearms even though they were known to be dangerous by their mental health treatment providers.2 Adopted as part of the SAFE Act,3 MHL § 9.46 provides as follows:
§ 9.46 Reports of substantial risk or threat of harm by mental health professionals
(a) For purposes of this section, the term "mental health professional" shall include a physician, psychologist, registered nurse or licensed clinical social worker.
(b) Notwithstanding any other law to the contrary, when a mental health professional currently providing treatment services to a person determines, in the exercise of reasonable professional judgment, that such person is likely to engage in conduct that would result in serious harm to self or others, he or she shall be required to report, as soon as practicable, to the director of community services, or the director's designee, who shall report to the division of criminal justice services whenever he or she agrees that the person is likely to engage in such conduct. Information transmitted to the division of criminal justice services shall be limited to names and other non-clinical identifying information, which may only be used for determining whether a [firearms] license issued *308pursuant to section 400.00 of the penal law should be suspended or revoked, or for determining whether a person is ineligible for a license issued pursuant to section 400.00 of the penal law, or is no longer permitted under state or federal law to possess a firearm.
(c) Nothing in this section shall be construed to require a mental health professional to take any action which, in the exercise of reasonable professional judgment, would endanger such mental health professional or increase the danger to a potential victim or victims.
(d) The decision of a mental health professional to disclose or not to disclose in accordance with this section, when made reasonably and in good faith, shall not be the basis for any civil or criminal liability of such mental health professional.
New York Mental Hygiene Law § 9.46 (West 2018) (emphasis added).
MHL § 9.46 works in tandem with New York Penal Law § 400.00(11)(b) (referenced above in MHL § 9.46(b), and also adopted as part of the SAFE Act) to remove guns from persons with pistol licenses who have been identified as being likely to engage in conduct that would result in serious harm to themselves or others. In particular, Penal Law § 400.00(11) states in pertinent part:
Whenever the director of community services or his or her designee makes a report pursuant to section 9.46 of the mental hygiene law, the division of criminal justice services shall convey such information, whenever it determines that the person named in the report possesses a [firearms] license issued pursuant to this section, to the appropriate licensing official, who shall issue an order suspending or revoking such license.
NY Penal Law § 400.00(11)(b) (emphasis added).
Accordingly, MHL § 9.46 requires "mental health professionals," including doctors, psychologists, registered nurses and licensed clinical social workers, to make a notification when they reasonably believe in their professional judgment that a patient under their treatment "is likely to engage in conduct that would result in serious harm to self or others," provided that they can do safely. In particular, such mental health professionals must notify the State of New York's Office of Mental Health ("OMH") "director of community services, or the director's designee." An OMH " 'director of community services' [ ("DCS") ] means a county's director of community services for the mentally disabled appointed pursuant to article forty-one of [the Mental Hygiene Law]."
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*306Paloma A. Capanna, Esq., 633 Lake Road, Webster, New York, 14580, For Plaintiffs.
Monica A. Connell, Esq., William J. Taylor, Jr., Esq., Office of the New York State Attorney General 120 Broadway, New York, New York, 10271, For Andrew M. Cuomo, Ann Marie T. Sullivan, Michael C. Green and George P. Beach, II.
Rudolph M. Baptiste, Esq., Office of the Suffolk County Attorney, 100 Veterans Memorial Highway, P.O. Box 6100, Hauppauge, New York, 11788, For Suffolk County.
Catherine A. Brennan, Esq., James F. Farrell, Jr., Esq., Fumuso Kelly DeVerna Snyder Swart & Farrell, LLP, 110 Marcus Boulevard, Suite 500, Hauppauge, New York, 11788, For Eastern Long Island Hospital.
DECISION AND ORDER
CHARLES J. SIRAGUSA, United States District Judge
INTRODUCTION
New York Mental Hygiene Law ("MHL") § 9.46 requires mental-health treatment providers to report patients who appear to pose a threat of serious harm to themselves or others. Then, if the patient reported under MHL § 9.46 has a New York State firearms license, New York Penal Law ("PL") 400.00(11)(b) requires that the license be suspended or revoked, and that the patient's firearms be seized. Plaintiffs bring this action pursuant to, inter alia ,
BACKGROUND
New York's Secure Ammunition and Firearms Enforcement Act of 2013 (the "SAFE Act") was enacted in January 2013, following a series of mass shootings around the United States by mentally disturbed individuals. At least some of the shooters in these incidents were able to legally obtain firearms even though they were known to be dangerous by their mental health treatment providers.2 Adopted as part of the SAFE Act,3 MHL § 9.46 provides as follows:
§ 9.46 Reports of substantial risk or threat of harm by mental health professionals
(a) For purposes of this section, the term "mental health professional" shall include a physician, psychologist, registered nurse or licensed clinical social worker.
(b) Notwithstanding any other law to the contrary, when a mental health professional currently providing treatment services to a person determines, in the exercise of reasonable professional judgment, that such person is likely to engage in conduct that would result in serious harm to self or others, he or she shall be required to report, as soon as practicable, to the director of community services, or the director's designee, who shall report to the division of criminal justice services whenever he or she agrees that the person is likely to engage in such conduct. Information transmitted to the division of criminal justice services shall be limited to names and other non-clinical identifying information, which may only be used for determining whether a [firearms] license issued *308pursuant to section 400.00 of the penal law should be suspended or revoked, or for determining whether a person is ineligible for a license issued pursuant to section 400.00 of the penal law, or is no longer permitted under state or federal law to possess a firearm.
(c) Nothing in this section shall be construed to require a mental health professional to take any action which, in the exercise of reasonable professional judgment, would endanger such mental health professional or increase the danger to a potential victim or victims.
(d) The decision of a mental health professional to disclose or not to disclose in accordance with this section, when made reasonably and in good faith, shall not be the basis for any civil or criminal liability of such mental health professional.
New York Mental Hygiene Law § 9.46 (West 2018) (emphasis added).
MHL § 9.46 works in tandem with New York Penal Law § 400.00(11)(b) (referenced above in MHL § 9.46(b), and also adopted as part of the SAFE Act) to remove guns from persons with pistol licenses who have been identified as being likely to engage in conduct that would result in serious harm to themselves or others. In particular, Penal Law § 400.00(11) states in pertinent part:
Whenever the director of community services or his or her designee makes a report pursuant to section 9.46 of the mental hygiene law, the division of criminal justice services shall convey such information, whenever it determines that the person named in the report possesses a [firearms] license issued pursuant to this section, to the appropriate licensing official, who shall issue an order suspending or revoking such license.
NY Penal Law § 400.00(11)(b) (emphasis added).
Accordingly, MHL § 9.46 requires "mental health professionals," including doctors, psychologists, registered nurses and licensed clinical social workers, to make a notification when they reasonably believe in their professional judgment that a patient under their treatment "is likely to engage in conduct that would result in serious harm to self or others," provided that they can do safely. In particular, such mental health professionals must notify the State of New York's Office of Mental Health ("OMH") "director of community services, or the director's designee." An OMH " 'director of community services' [ ("DCS") ] means a county's director of community services for the mentally disabled appointed pursuant to article forty-one of [the Mental Hygiene Law]."
To facilitate the making of notifications under MHL § 9.46, the State of New York created a computer system, called the Integrated SAFE Act Reporting System ("ISARS"), for transmitting patient information between mental health care providers and their local DCS. Such information includes the patient's name, address, date of birth, Social Security Number, sex, race, and diagnosis, along with an explanation for why the mental health professional believes the patient poses a specific threat.4
*309The ISARS system is used only to file reports under MHL § 9.46, and not to file reports that might be required under other sections of the Mental Hygiene Law. In that regard, mental health professionals access ISARS by going to the OMH website and clicking on links identified as either "NY SAFE Act" or "9.46 Reporting."5
If, after reviewing a report filed by a mental health professional, the DCS "agrees that the person [named in the report] is likely to engage in [seriously harmful] conduct," he or she must notify the New York State Division of Criminal Justice Services ("DCJS") of that fact. DCJS is an agency that provides a wide variety of services related to law enforcement, including "maintain[ing] criminal history records and fingerprint files and perform[ing] background checks for employment and licensure."6 To make such a notification, a DCS transmits information to DCJS using the Integrated Justice ("IJ") Portal.7 Such information is required to be limited to the patient's "name[ ] and other non-clinical identifying information." Mental Hygiene Law § 9.46(b).8 In other *310words, a DCS does not send DCJS information about a patient's diagnosis or the reasons why the patient is believed to be dangerous. When DCJS receives a § 9.46 report, it adds the patient's name to a state database created as part of the SAFE Act,9 and then checks to see whether the patient holds a New York firearms license or has applied for one. If so, DCJS notifies "the appropriate [firearms] licensing official" (usually a judge, sheriff or police commissioner).10 In particular, if DCJS finds that the patient reported under MHL § 9.46 has a firearms license, it notifies the New York State Police ("NYSP"), which double checks the firearms-license database and then provides notice to the licensing official.11 Upon receiving such notice under MHL § 9.46, the "appropriate licensing official" must either suspend or revoke the patient's firearms license. Penal Law § 400.00(11)(b).
Upon such mandatory suspension or revocation of the patient's pistol license under MHL § 9.46 and PL 400.00(11)(b), "an appropriate law enforcement agency" must seize all of the patient's guns, including those for which no license is required. On this point, Penal Law § 400.00(11)(c) states:
In any instance in which a person's license is suspended or revoked under paragraph ... (b) of this subdivision, such person shall surrender such license to the appropriate licensing official and any and all firearms, rifles, or shotguns owned or possessed by such person shall be surrendered to an appropriate law enforcement agency as provided in subparagraph (f) of paragraph one of subdivision a of section 265.20 of this chapter. In the event such license, firearm, shotgun, or rifle is not surrendered, such items shall be removed and declared a nuisance and any police officer or peace officer acting pursuant to his or her special duties is authorized to remove any and all such weapons.
*311In sum, whenever a mental health professional and DCS issue notifications under § 9.46 concerning a patient, DCJS determines whether the patient has a firearms license and, if so, NYSP notifies13 the local licensing official, who must at least suspend the license, thereby requiring the patient to immediately surrender all of his firearms to the police. In the event that the patient fails to surrender his guns, Penal Law § 400.00(11)(c) authorizes the police to take them.
MHL 9.46 and PL 400.00(11)(b) affect persons who have firearms licenses. These provisions would have no immediate effect on gun owners who do not have pistol licenses. For example, if a DCS forwarded a § 9.46 report to DCJS concerning an individual who owned a shotgun but did not have a pistol license, DCJS would not find the person's name in the firearms license database. DCJS would therefore add the person's name to the database created by PL § 400.02 (where it would remain for five years), but would not notify the local licensing officer, and the report would not result in the seizure of the shotgun.
The aforementioned SAFE Act provisions were adopted in addition to existing provisions of New York Mental Hygiene Law Article 9, which provide for the hospitalization and treatment of mentally-ill individuals. For example, MHL §§ 9.1314 and 9.1515 allow persons to voluntarily admit themselves to a hospital for mental health treatment, without having to show that they pose a threat to themselves or to others. Also, MHL § 9.27 allows a person to be involuntarily admitted to a mental hospital, upon the "certification by two physicians that [the] individual has a mental illness for which care and treatment as a patient in a hospital is essential to the person's welfare,"16 but does not require "an active display of dangerous behavior."17
On the other hand, other provisions of MHL Article 9 provide for involuntary admission of patients who are actively displaying dangerous behavior. MHL § 9.37 states that a hospital may involuntarily admit a patient who "has a mental illness *312for which immediate inpatient care and treatment in a hospital is appropriate and which is likely to result in serious harm to himself or herself or others," while MHL § 9.39 provides for the involuntary admission, for up to fifteen days, of "any person alleged to have a mental illness for which immediate observation, care, and treatment in a hospital is appropriate and which is likely to result in serious harm to himself or others." MHL § 9.45 also gives a DCS the power to remove someone to a hospital upon a report that the person "has a mental illness for which immediate care and treatment in a hospital is appropriate and which is likely to result in serious harm to himself or herself or others." Further, MHL § 9.41 permits police officers to take into custody "any person who appears to be mentally ill and is conducting himself in a manner which is likely to result in serious harm to himself or others," and to transport such person to a hospital.
As used in these statutes and throughout MHL Article 9, a finding that a patient is "likely to result in serious harm to himself or others" must be supported by certain signs:
"likelihood to result in serious harm" or "likely to result in serious harm" means (a) a substantial risk of physical harm to the person as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that the person is dangerous to himself or herself, or (b) a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm.
This is the same standard to be applied under MHL § 9.46. Not only is the relevant language in § 9.46 essentially identical to the language in § 9.01, but OMH interprets the definitions consistently. In that regard, after passage of the SAFE Act, OMH issued various instructions to mental health professionals, explaining how to apply newly-enacted § 9.46, and, in particular, how to interpret § 9.46's reporting standard, "likely to engage in conduct that will cause serious harm to self or others." For example, OMH issued a "Guidance Document" explaining that such standard is consistent with, and should be interpreted the same as, the standards contained in MHL §§ 9.39 and 9.45, but is different than the standard under MHL § 9.27 :
With respect to initial reports made by mental health professionals, the reporting standard is 'likely to engage in conduct that will cause serious harm to self or others.' This standard is consistent with the 'likely to result in serious harm to self or others' standard that a [DCS] or designee uses to direct emergency 'removals' from the community to a psychiatric hospital for examination under MHL Section 9.45. This is also consistent with the standard for emergency admissions for observation, care and treatment pursuant to MHL Section 9.39.
As such, decision making with respect to a Section 9.46 report requires a clinical determination that a person's clinical state creates either: '(a) a substantial risk of physical harm to the person, as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that the person is dangerous to himself or herself, or (b) a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior which places others in reasonable fear of serious physical harm.'
*313The standard differs from the non-emergency, involuntary commitment standard pursuant to MHL Section 9.27 (i.e., the '2 PC' standard). The '2 PC' standard requires certification by two physicians that an individual has a mental illness for which care and treatment as a patient in a hospital is essential to the person's welfare. Furthermore, the person's judgment must be so impaired that s/he is unable to understand the need for care and treatment. The courts have interpreted the 2 PC standard as requiring both mental illness and finding that the person is dangerous to self or others, but such dangerousness may be found even without an active display of dangerous behavior, conduct, or threats if the person has a history of dangerous conduct associated with noncompliance with mental health treatment programs. Accordingly, a person could meet the '2 PC' standard, but still not pose a risk of harm that justifies action pursuant to either the emergency removal or admission standard, or the 9.46 standard.
Because the 9.46 standard is consistent with the standard that is used for emergency removals and admissions under MHL Article 9, a person who requires a Section 9.46 report could simultaneously require an emergency removal to a psychiatric hospital for an examination pursuant to MHL Section 9.41, 9.43, or 9.45. Depending on the results of the examination, such person could also thereafter be admitted and retained in a hospital pursuant to MHL Section 9.39.18
Additionally, OMH has made an instructional power point on the SAFE Act available, entitled "NY SAFE Act Introduction for Mental Health Providers."19 This document indicates that MHL § 9.46's "likely to engage in conduct that will cause serious harm to self or others" standard is consistent with the "likely to result in serious harm" definition in MHL § 9.01, which "justifies the need for immediate action, such as an involuntary transport by police or an ambulance service to a psychiatric hospital for an examination."20 According to OMH, therefore, a person who must be reported under MHL § 9.46 should also be a candidate for emergency involuntary transport to hospital and/or involuntary admission.
Prior to the SAFE Act, and continuing to the present, a person who is involuntarily admitted to a hospital for mental treatment under MHL Article 9 becomes federally disqualified from having any type of firearm. In particular,
The relevant federal regulation explains that the term "committed to a mental institution" "includes a commitment to a mental institution involuntarily."
*314
Prior to the SAFE Act, the fact that a person was involuntarily committed, and therefore disqualified by
As can be seen, a person who is involuntarily committed under MHL Article 9 must be reported to OMH and DCJS, and such report should necessarily result in the revocation of the involuntarily-committed person's firearms license (if any) and the seizure of such person's weapons.27 Such ought to be the case regardless of whether a report concerning the person is also filed under MHL § 9.46, though it appears that the SAFE Act requires both types of reports to be filed.28 The primary benefit of MHL § 9.46, therefore, appears to be either as a means to alert OMH/DCJS of persons who, in the opinion of at least two mental health professionals (the treating mental health professional and the DCS) arguably meet the standard for involuntary commitment ( MHL § 9.01 ) even though they have not been involuntarily committed for whatever reason,29 or as a fail-safe in situations where a person has been involuntarily committed but not reported to OMH/DCJS/NICS as such.
As briefly noted earlier, pursuant to federal law, all persons attempting to purchase firearms must undergo an NICS Background Check. However, federal law does not compel states to report information to NICS that would disqualify someone from possessing a gun under
In response to the NICS Improvement Amendments Act of 2007, New York State law was amended to allow relevant mental health records to be made accessible to NICS.34 For example, MHL § 7.09(j) gives OMH authorization to collect data, including the "names and other non-clinical identifying information of persons who [were] involuntarily committed to a hospital," and to make such information available to queries from NICS.35 In particular, OMH provides such information to DCJS, which then transfers the information to NICS.36 Further, MHL § 31.11(5) requires mental health service providers to notify OMH of patients "who may be disqualified from possessing a firearm pursuant to"
*317As already discussed, DCJS receives reports concerning events such as involuntary commitments under the Mental Hygiene Law that entirely disqualify persons from having guns under federal law, and DCJS also receives reports under MHL § 9.46 that result in the suspension, if not the revocation, of firearms licenses issued under New York State law. DCJS has the ability to search its records to determine whether either type of report has been filed against a particular individual, and, if so, when and by whom. As previously indicated, persons may become involuntarily committed under various sections of the Mental Hygiene Law, including § 9.27, § 9.37 and § 9.39. However, regardless of the particular MHL section under which a person is involuntarily committed, DCJS uses the descriptor "9.41'' as shorthand in its database for all involuntary commitments.40 That is, DCJS refers to reports of involuntary commitments as "9.41'' reports. Accordingly, DCJS has the ability to search its records and determine whether a person was reported under MHL § 9.46 ("9.46 reports") or whether such person was reported as having been adjudicated a mental defective/ committed to mental institution ("9.41 reports"), but with regard to the latter type of report DCJS's search results do not indicate the actual section of the Mental Hygiene Law under which the individual was adjudicated mental defective/committed to a mental institution.41
MHL § 9.46 was enacted amidst an existing framework of federal and state laws designed to protect patients' privacy in their confidential medical information. Most notably, the federal Health Insurance Portability and Accountability Act of 1996 ("HIPAA") generally provides for the confidentiality of medical records.42 However, HIPAA provides various exceptions which permit health providers to disclose protected health information without the patient's authorization. In pertinent part, HIPAA permits such disclosures either where they are required by law, including state law, or where they are necessary to *318prevent or lessen a serious and imminent threat to the health or safety of the patient or a third party. Specifically,
A covered entity may use or disclose protected health information without the written authorization of the individual... or the opportunity for the individual to agree or object...in the situations covered by this section, subject to the applicable requirements of this section.
* * *
(a) Standard: Uses and disclosures required by law.
(1) A covered entity may use or disclose protected health information to the extent that such use or disclosure is required by law and the use or disclosure complies with and is limited to the relevant requirements of such law.
* * *
(j) Standard: Uses and disclosures to avert a serious threat to health or safety.
(1) Permitted disclosures. A covered entity may, consistent with applicable law and standards of ethical conduct, use or disclose protected health information, if the covered entity, in good faith, believes the use or disclosure:
(i)(A) Is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public; and
(B) Is to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat[.]
Importantly, disclosure is permitted under
"law" is intended to be read broadly to include the full array of binding legal authority, such as constitutions, statutes, rules, regulations, common law, or other governmental actions having the effect of law. [Moreover,] for the purposes of § 164.512(a), law is not limited to state action; rather, it encompasses federal, state or local actions with legally binding *319effect, as well as those by territorial and tribal governments.45
Notably, OMH's SAFE Act Guidance Document refers to MHL § 9.46 as a "mandatory reporting requirement."46 Because of that, the Guidance Document states, mental health professionals need nor worry about violating HIPAA by filing § 9.46 reports, since HIPAA's "required by law" exception, 45 C.F.R. sec 164.512(a), applies.47
On the other hand, disclosure is allowed under
Significantly, HIPAA permits disclosure (without the patient's authorization or notice) if either one of the aforementioned exceptions under § 164.512 applies; in other words, if disclosure is mandated by state law, then § 164.512(a) permits the disclosure, even if the situation is not "serious and imminent" as described in § 164.512(j).49 These exceptions apply to all health information, including psychotherapy notes.50
In addition to HIPAA, the New York Mental Hygiene Law provides that clinical records involving mental health treatment shall not be released, except in particular limited circumstances. Of course, MHL § 9.46 authorizes disclosure to OMH where the patient appears likely to engage in conduct that would cause serious harm. Further, MHL § 33.13 permits the disclosure of information, without the patient's consent, "to an endangered individual and a law enforcement agency when a treating psychiatrist or psychologist has determined that a patient or client presents a serious and imminent danger to that individual," MHL § 33.13(c)(6), or, with OMH's consent, to other "appropriate persons and entities when necessary to prevent imminent serious harm to the patient or client or another person." MHL § 33.13(c)(9)(v).51
*320With this background in mind, the Court now turns to the particular claims in this action, in which Plaintiffs maintain that after they sought mental health treatment, reports were improperly filed against them, which resulted in their New York pistol licenses being suspended and their firearms (pistols, rifles and shotguns) being seized by police.52
On December 18, 2014, Plaintiffs commenced this action. At that time, Donald Montgomery ("Montgomery") was the lone plaintiff, though he purported to be suing on behalf of himself and "all other persons similarly situated."53 Although Montgomery resided in the Western District of New York when he commenced the action, he resided in the Eastern District of New York when most of the events about which he complains occurred. The factual averments in the original Complaint [# 1] are as follows.
Montgomery, a Navy veteran and retired police detective, contends that while he was residing in Cutchogue, New York, he voluntarily admitted himself to defendant Eastern Long Island Hospital ("the Hospital"), due to insomnia and anxiety. Montgomery indicates that after receiving medication, he slept soundly for two nights and was discharged. Montgomery admits that during such hospital stay, someone at the hospital left a document in his room, titled "Notice of Status and Rights/Emergency Admission (to be given to the patient at the time of admission to the hospital)/Section 9.39 Mental Hygiene Law."54 However, Montgomery indicates that he did not review the form, and was never asked to sign the form.
After being discharged, Montgomery learned that the Hospital had notified OMH that he had been involuntarily admitted to the hospital for mental health treatment. As a result of such notification, Montgomery's name was presumably added to the federal NICS database. Further, NYSP notified55 defendant Suffolk County Sheriff DeMarco that Montgomery had "been adjudicated as a mental defective or ha[d] been involuntarily committed to a mental institution," and was therefore "prohibited from possessing a firearm, rifle or shotgun pursuant to
While Montgomery was in the process of disputing the suspension of his pistol license, he moved his residence to Monroe County, New York, after which Sheriff DeMarco's office informed him that it was terminating his pistol license because he had changed his residence without informing the Suffolk County licensing officer. On or about January 3, 2015, Montgomery commenced an Article 78 proceeding in New York State Supreme Court, Suffolk County.57 The Article 78 petition alleged that Montgomery had been erroneously classified as having been "adjudicated as a mental defective or involuntarily committed to a mental institution."
Purportedly based upon these factual allegations, the Complaint [# 1] asserts four causes of action: 1) "violation of the right to privacy" concerning medical records; 2) "violation of the Equal Protection Clause," involving discrimination against persons who seek mental health treatment; 3) "violation of the Due Process Clauses [ (substantive and procedural) ] as to the taking of Second Amendment rights arbitrarily and without notice or an opportunity to be heard; and 4) violation of the Second Amendment right to keep and bear arms. The Complaint asserts that all four of these claims arise from MHL § 9.46 and Defendants' misuse of that statute.58
Importantly, though, the Complaint contains no factual averment that Eastern Long Island Hospital filed a report against Montgomery under MHL § 9.46. That is, the pleading never alleges that hospital staff, or anyone else, reported Montgomery under § 9.46 as being "likely to engage in conduct that would result in serious harm to [him]self or others." Rather, as already noted, the pleading asserts that hospital staff reported that Montgomery had been "involuntarily admitted," thereby implicating
In reality, the NYS Police have taken the position of instructing local licensing officials to suspend and terminate pistol permits for all persons reported through MHL § 9.46 as having been involuntarily committed to a mental institution.
Complaint [# 1] at ¶ 87.60 (emphasis added). While this statement implies that Montgomery was reported under MHL § 9.46, it has no factual support in the pleading. Nevertheless, the pleading demands a declaratory judgment "striking *322down" Mental Hygiene Law § 9.46, an injunction enjoining the enforcement of § 9.46, an order directing the State of New York to disclose all information that has been collected pursuant to § 9.46, an order requiring the State of New York to notify all persons whose medical information has been collected and/or transmitted pursuant to § 9.46, an order directing the State of New York to purge all records collected pursuant to § 9.46, and an award of money damages and attorney fees.
On January 23, 2015, Plaintiff's counsel wrote to the Court, in response to conversations and/or communications that she had with opposing counsel, who had not yet appeared in the case, concerning the lawsuit. Plaintiffs' counsel indicated, inter alia , that she wanted to clarify the nature of this action, since it seemed to her that opposing counsel were confused on that point:
It appears that [State Defendants'] Counsel has somewhat missed the point of the lawsuit.... This case is, I believe, a watershed question, that will map out the intersection of privacy rights and Second Amendment rights, particularly with respect to confidential medical information that does not qualify as an adjudication of a 'mental defect' or an 'involuntary commitment.'
* * *
We are... not seeking to challenge whether the pre-existing process of county licensing officer review of medical and mental health history and events is invalid, nor are we seeking to challenge the pre-existing structure of Mental Hygiene Law Article 9 as it offered pre-existing routes for involuntary and voluntary commitments. Any one of these other roads may contain challenges for another day.
We are focused in this instance on the abuse and overreach of MHL § 9.46 and its 'likelihood' standard, the false marketing of the statute by OMH to lure the medical profession to become agents of the State, and the excesses and pressures of DCJS and the NYSP to suppress the independent authority of the county licensing officers with regard to pistol permits and to firearms confiscation.
Letter of Paloma Capanna, dated January 23, 2015 (Docket No. [# 9] ). Plaintiffs' counsel stated, in other words, that this lawsuit is about MHL § 9.46.
On January 30, 2015, Montgomery filed a motion [# 3] for preliminary injunctive relief. Similar to the Complaint [# 1], the motion for injunctive relief is directed at MHL § 9.46. In particular, the application asserts that Plaintiff is likely to succeed in this action, because MHL "§ 9.46 and its implementation violate the Second, Fourth, Fifth and Fourteenth Amendments to the United States Constitution, as well as its privacy protections."61 The application first maintains that insofar as MHL § 9.46 requires the disclosure of patient health information without the patient's notice or consent, and the resulting suspension of firearms licenses and seizure of firearms, it violates procedural due process (and HIPAA). The application also contends that MHL § 9.46 violates equal protection, because it impermissibly "targets" persons seeking mental health treatment. Further, the application asserts that the classification of Montgomery as "involuntarily committed"
*323violates his Second Amendment rights, because he was not actually involuntarily committed within the meaning of
The preliminary injunction motion is supported by an affidavit from Mr. Montgomery, that essentially reiterates the allegations in the Complaint [# 1] concerning his hospitalization and the events that transpired afterward.62 Similar to the Complaint [# 1], this affidavit, while urging the Court to "suspend MHL § 9.46 and its associated reporting system," does not expressly contend that Montgomery was reported under MHL § 9.46. Rather, Montgomery's affidavit asserts that he was "wrongfully tagged as... 'involuntarily committed.") Montgomery Aff. [# 3-2] at ¶ 10; see also,
The preliminary injunction motion is also supported by approximately 850 pages of exhibits (Docket Nos. [# 3-2]-[# 3-13] ), including, inter alia , the following: 1) the legislative history of the SAFE Act;63 2) a transcript of hearing in the New York State Senate involving the SAFE Act's impact on mental health treatment; 3) documents issued by the State of New York (OMH) to mental health providers explaining the SAFE Act and ISARS; 4) documentation concerning the process by which persons, who have been disqualified from possessing firearms under
*324Much of the application for preliminary injunctive relief is devoted to arguing that the SAFE Act is an ill-advised piece of legislation. The application harshly criticizes Governor Cuomo and his use of the "message of necessity"66 legislative process to obtain passage of the SAFE Act, and asserts that the law was enacted without sufficient "legislative deliberation" or "input" from individual legislators.67 At the same time, the application characterizes statements by legislators, during the limited debate on the bill, as "confused and misguided."68 Further, the application asserts that "the leadership of prominent statewide mental health associations [were not consulted before the legislation was passed, and have offered] a non-stop litany of criticisms of MHL § 9.46" since its passage.69 Moreover, Plaintiffs insist that § 9.46 has not "provided any benefit to public safety."70 For example, Plaintiffs insist that making a report under § 9.46 using the ISARS system is slower and less-effective than simply telephoning 911 to report a dangerous patient.71 Additionally, Plaintiffs argue that § 9.46 could have the unintended consequence of discouraging people from seeking mental health treatment.72 Generally, these types of arguments are not probative of whether a court should enjoin the enforcement of a statute.73
*325Of more relevance to the instant action, the application for injunctive relief also provides various anecdotal evidence purporting to show that MHL § 9.46/ISARS is being over-utilized by certain mental health providers, and improperly administered by certain county-level Directors of Community Services. In this regard, the application primarily relies upon testimony from various mental-health professionals at a hearing conducted by the New York State Senate shortly after passage of the SAFE Act.74 For example, Jed Wolkenbreit, Attorney for the Conference of Local Mental Health Hygiene Directors, testified that some medical providers were reporting patients under MHL § 9.46"simply by virtue of their admission," even though such reporting "was not even consistent with the State Office of Mental Health's published guidance" on the issue.75 Wolkenbreit opined that some medical providers were filing reports even though their patients did not meet the § 9.46 standard, out of fear that they might face liability for failing to make a report.76 Wolkenbreit also indicated that some hospital staffs were submitting reports using the "Electronic Health Records System," rather than the ISARS system, even though such use was "not appropriate under the statute."77 The injunction application also cites a New York Times newspaper article claiming that "mental health workers feel compelled to routinely report mentally ill patients brought to an emergency room by the police or ambulances."78 The same newspaper article quotes a County DCS as stating that he does not follow the requirements of MHL § 9.46, but instead, merely "rubber stamps" reports from medical providers sent to him via the ISARS system:
Kenneth M. Glatt, commissioner of mental hygiene for Dutchess County, said that at first, he had carefully scrutinized every name sent to him through the SAFE Act. But then he realized that he was just "a middleman," and that it was unlikely he would ever meet or examine any of the patients. So he began simply checking off the online boxes [on the ISARS system], sometimes even without reviewing the narrative about [the] patient [that had been submitted by the treatment provider]. "Every so often I read one just to be sure," Dr. Glatt, a psychologist, said. "I am not going to second guess. I don't see the patient. I don't know the patient."79
From such anecdotal evidence, the injunction application suggests that wide-scale over-reporting is occurring pursuant to MHL § 9.46. Further, the application contends that the State of New York actually desires and encourages such over-reporting under MHL § 9.46, as part of an overall plan to disarm its citizens, and that hospitals "have effectively become agents of the state, labeling everyone who walks *326through the Emergency Room doors as 'involuntarily committed."80
At the same time, however, the preliminary injunction motion submits documents issued by OMH to mental-health providers, which explain that patients should not automatically be reported under MHL § 9.46 merely because they are involuntarily admitted for mental health treatment.81 In particular, and as mentioned earlier, the SAFE Act "Guidance Document" issued by OMH correctly sets forth the standard for making reports under MHL § 9.46, ("likely to result in serious harm to self or others"), and notes that involuntary commitment under MHL § 9.27 should not necessarily result in the filing of a report under MHL § 9.46 : "[A] person could meet the [ MHL § 9.27 ] '2 PC' standard [for involuntary admission], but still not pose a risk of harm that justifies action pursuant to either the emergency removal or admission standard, or the 9.46 standard. "82 Further, the OMH SAFE Act "Guidance Document" clearly states that a DCS should not forward a § 9.46 report to DCJS unless he "agrees with the [reporting] mental health professional's determination."83
The application for preliminary injunctive relief also purports to show that MHL § 9.46 is unlawful because it is inconsistent with pre-existing state and federal laws, many of which the Court has already discussed above. First and foremost, the application contends that MHL § 9.46"disregards"84 HIPAA, because it sets a standard for the disclosure of private health information that is less-protective than HIPAA.85 In particular, the application asserts that "[t]he standard at MHL § 9.46 is a far lesser standard than the emergency reporting provisions within HIPAA at
In immediate response to being served with Montgomery's Complaint [# 1] and Motion for Preliminary Injunctive Relief [# 3], Defendants argued, inter alia , that venue was not proper in this district,88 and that Montgomery lacked standing because MHL § 9.46"never applied to him."89 See , Docket No. [# 8]. Plaintiffs' counsel submitted a responding letter [# 9], in which, inter alia , she briefly laid out her theory as to why Montgomery has standing to challenge MHL § 9.46, even though his firearms disqualification resulted from having been labeled as "involuntarily committed." Essentially, Plaintiffs' counsel indicated that Montgomery must have been reported under MHL § 9.46, because the Hospital's claim that Montgomery had been involuntarily committed did not "make sense" to her.90
On January 29, 2015, the Court held oral argument on the application for injunctive relief. During such appearance, the Court asked Plaintiffs' counsel to explain how venue was proper in this district. Without directly answering the Court's question, Plaintiffs' counsel indicated that she wished to file an amended pleading,91 and Defendants expressed the intention to file motions to dismiss. The Court adjourned the matter to allow Montgomery to file an amended pleading, with the understanding that Defendants intended to file motions to dismiss immediately thereafter.
On February 2, 2015, Montgomery, along with newly-added plaintiffs Andrew Carter ("Carter"), Lois Reid ("Reid") and Karl Bechler ("Bechler"), filed an 82-page Amended Complaint [# 14], which purports to assert four causes of action: 1) that MHL § 9.46 violates the Plaintiffs' federal constitutional right to privacy in *328personal health information and doctor-patient relationships; 2) that MHL § 9.46 violates the Equal Protection Clause of the Fourteenth Amendment, by treating persons seeking mental health treatment differently from "the general patient population";92 3) that MHL § 9.46 violates Plaintiffs' rights to substantive due process and procedural due process under the Fourteenth Amendment, because "the process through which [they] have been reported and disqualified from firearms ownership, possession, transfer, and use is arbitrary and capricious," and lacks a "meaningful process" by which to "request a redress of their grievances for the restoration of" their rights which have been affected by § 9.46 ;93 and 4) that MHL "§ 9.46 as enacted and implemented by the Defendants violates the Second Amendment rights of the Plaintiffs."94 The pleading indicates that all individually-named defendants are being sued in their official capacities.95
Whereas Montgomery had lived in the Eastern District of New York when his firearms were seized, Carter, Bechler and Reid all reside in, and had their firearms licenses suspended or revoked in, the Western District of New York.
With minor exceptions,96 the Amended Complaint [# 14] generally mirrors the original Complaint, except that it adds detailed allegations specific to Carter, Reid and Bechler. Concerning Carter, the pleading alleges that Carter's firearms were seized after his wife called "911" "because she suspected that he was showing signs and symptoms of a stroke or other serious neurological event."97 The pleading contends that police officers-members of the Tonawanda Police Department-came to Carter's home along with ambulance personnel, and seemed more concerned about his firearms than about his medical condition.98 Carter maintains that officers seized multiple firearms from his house. Carter contends that he was not a threat to anyone, but that the police officers nevertheless told him that he was going to the hospital for 72 hours, "even if they had to force him."99 Carter maintains that he went to hospital by ambulance voluntarily, and discharged himself (against his doctors' advice) four hours later. Carter further maintains that hospital records reflect that he was not a danger to himself or anyone else. Nevertheless, when Carter later attempted to retrieve his firearms from the police, a police officer denied his request, and stated that it was "all due to the SAFE Act."100 Carter later received a notification from Erie County advising him that his firearms license was suspended. Carter subsequently learned that someone at the hospital had indicated in his medical chart *329that he had been "involuntarily committed" pursuant to MHL § 9.41.101
Regarding Ms. Reid, the Amended Complaint [# 14] alleges that hospital staff unjustifiably filed a report against her after she voluntarily went to the emergency room for treatment of a neurological condition similar to muscular dystrophy. Reid indicates that she initially went to Buffalo General Hospital, and was transferred to Erie County Medical Center, where she voluntarily remained for several days. Reid maintains that she requested to be voluntarily admitted to ECMC under MHL section 9.13 and 9.23, and has paperwork documenting such request.102 Reid indicates that she was not a threat to herself or others. While at the hospital, staff aggressively questioned Reid about her ownership of firearms. After being discharged, Reid received a notice that her pistol license was suspended.103 The pleading does not attach the actual document that Reid received, but describes it as follows:
The 'Notice of Objection' received by Ms. Reid from Erie County Court used language of 'involuntarily hospitalized for mental health reasons' and 'involuntary admission' and also includes that 'On or about December 24, 2013, the above named LOIS JEAN REID was reportedly involved in an incident implicating MENTAL HEALTH PER SAFE ACT which obligates a mental health professional believing that such incident demonstrates that the person may be 'likely to engage in conduct that will cause serious harm to herself or others' to report such event.'104
According to the pleading, "[t]he language of this 'Notice' [sent to Ms. Reid] implicates both MHL § 9.41 and § 9.46, without referencing any section of law."105
Regarding Mr. Bechler, the pleading alleges that Bechler's wife called "911" about him because he was ill and depressed, but was "not suicidal or otherwise threatening harm to himself or anyone else."106 Nevertheless, the 911 call resulted in NYSP officers coming to Bechler's home, arresting him, and seizing his extensive firearms collection.107 The pleading indicates that the NYSP officers approached Bechler's house "in a menacing manner, armed with long guns," but does not explain why.108 Although the pleading implies that Bechler was placed under arrest, it further maintains that Bechler went to Clifton Springs Hospital voluntarily, and spent four days there receiving treatment, primarily for diabetes. The Ontario County licensing officer subsequently suspended Bechler's New York State firearms license.109 Thereafter, a report was filed against Bechler under MHL § 9.46. Later, on September 17, 2013, NYSP sent a form letter to the licensing official (County Clerk's Office), indicating that a report had been filed against Bechler under MHL § 9.46.110 Bechler subsequently brought a successful *330court action to have his firearms license reinstated.
Similar to the original Complaint [# 1] and the application for preliminary injunctive relief [# 3], the Amended Complaint [# 14] does not explain how Plaintiffs' contentions, that they were incorrectly designated as having been "involuntarily committed," relate to MHL § 9.46. The closest the Amended Complaint [# 14] comes to doing so is the following curious statement:
134. It appears that the State Defendants in their political drive to confiscate firearms are failing to distinguish between the new MHL § 9.46 and the continuing MHL § 9.41, which is a pre-existing provision for involuntary commitment.
This paragraph seems to imply that the alleged mis-classification of Plaintiffs as having been involuntarily committed is somehow related to the enactment of MHL § 9.46. However, the pleading offers no factual support for the assertion that State Defendants are failing to distinguish between MHL § 9.46 and MHL § 9.41.111
On February 27, 2015, Defendants filed motions to dismiss the Amended Complaint. Sheriff DeMarco and Eastern Long Island Hospital each filed their own motions, while New York State Defendants (Cuomo, Sullivan, Green and Beach) filed a joint motion.
Sheriff DeMarco filed a motion [# 22] to dismiss, for improper venue and failure to state a claim, or, in the alternative, to transfer venue. Preliminarily, DeMarco contends that since he is sued him in his official capacity as Sheriff of Suffolk County, the claim is really against Suffolk County, and is therefore a claim under Monell v. Dept. of Soc. Servs. of City of New York ,
Regarding venue, the County contends that venue is improper in the Western District, because Plaintiffs evidently chose venue based upon the fact that they reside in the Western District, which is not a valid basis to establish venue under
Alternatively, the County contends that the Amended Complaint fails to state an actionable claim against the County. In this regard, the only claims asserted against Suffolk County are by Montgomery. Further, the County maintains that only two of the claims in the Amended *331Complaint involve the County: The Third Cause of Action (14th Amendment substantive and procedural due process) and the Fourth Cause of Action (Second Amendment). Further, the County maintains that the Amended Complaint fails to plead any constitutional claim under Monell , since it does not plausibly allege facts showing that any alleged constitutional violation resulted from a municipal policy, custom or practice.
On this point, the County contends that it did not act pursuant to its own policies, but rather, acted pursuant to New York State law and Federal law.114 The County insists that it had no discretion to disobey such laws, as they were properly-enacted and did not obviously violate the Constitution. Along this same line, the County contends that the pleading fails to state a procedural due process claim, as neither "the SAFE Act [nor the] Penal Law" provide for a pre-deprivation hearing,115 and the County has no authority to create its own due process procedures. Further, the County maintains that the subject statutory scheme involves a public-safety situation requiring "quick action by the State,"116 and that CPLR Article 78 therefore provides an adequate post-deprivation hearing remedy, of which Montgomery has already availed himself.117 The County also maintains that the Amended Complaint fails to state a claim for a substantive due process violation, since the County's actions were not conscience-shocking.
Eastern Long Island Hospital also filed a motion to dismiss [# 24] the Amended Complaint, for lack of standing, improper venue and failure to state a claim. With regard to standing, the only claims against the Hospital are those being asserted by Montgomery, who, the Hospital contends, lacks standing to bring this action because the Hospital never filed a report against him under MHL § 9.46. In this regard, the Hospital insists that dismissal is required under Rule 12(b)(1), since Montgomery's admission to the Hospital was not voluntary, as he maintains. In support of this contention, the Hospital submitted an affidavit from its Director of Behavioral Services, Helene de Reeder, RN, MSN ("de Reeder"), who asserts that she did not file a report concerning Montgomery under MHL § 9.46, but rather, that she filed a report under MHL § 7.09, as she was required to do after Montgomery was involuntarily admitted under MHL § 9.39. In that regard, de Reeder indicates that Montgomery was involuntarily admitted under MHL § 9.39"by a private attending physician" who is not an employee of the Hospital.118 Nurse de Reeder further indicates that she submitted the MHL § 7.09 report using "the New York State Department of Health portal," not ISARS. Nurse de Reeder also states that such report did not contain any protected health information, *332such as Montgomery's diagnosis. Nevertheless, the Hospital indicates that even if the report contained such protected health information, the disclosure would have been permitted by HIPAA,
The Hospital alternatively contends that the Amended Complaint must be dismissed under Rule 12(b)(6), because the Hospital is a private entity, not a state actor, and therefore cannot be sued under
New York State Defendants (Cuomo, Sullivan, Green and Beach) also filed a motion to dismiss, for lack of standing, failure to state a claim and improper venue. State Defendants' motion is accompanied by 42 exhibits.121 With regard to standing, State Defendants contend that Montgomery, Carter and Reid were never the subject of a report under MHL § 9.46, and therefore have no standing to challenge the statute. In this regard, OMH records indicate that reports were filed against Montgomery and Reid indicating that they were involuntarily committed (at Eastern Long Island Hospital and Erie County Medical Center, respectively), but that no reports were filed against them under MHL § 9.46.122 OMH records further indicate that no record of any type has ever been filed concerning Carter, and that the suspension of Carter's pistol license was therefore the result of the Tonawanda Police Department providing information directly to the local licensing officer.123
As for Bechler, State Defendants acknowledge that he was the subject of a § 9.46 report, but contend that such report caused Bechler no injury because he had already been involuntarily admitted to the hospital, and his pistol license had already been suspended, by the time the § 9.46 report was filed.124 In particular, the record *333indicates that Bechler's firearms license was initially suspended after NYSP directly contacted the Ontario County licensing officer, the Honorable Frederick Reed, County Court Judge, on the day of Bechler's arrest, and related the details of the arrest.125 That same day, Judge Reed suspended the firearms licenses of both Mr. Bechler and Mrs. Bechler.126 Also that day, Clifton Springs Hospital notified OMH that Bechler had been involuntarily committed. OMH sent such information to DCJS, "both to update NICS and to [allow DCJS to] determine whether Mr. Bechler had a firearms license."127 Thereafter, on or about September 10, 2013, a mental health professional at Clifton Springs Hospital also filed an MHL § 9.46 report against Bechler. The Ontario County DCS reviewed the § 9.46 report and agreed that Bechler was likely to engage in conduct that would result in serious harm to himself or others, and forwarded Bechler's non-clinical identifying information to DCJS.128 State Defendants therefore argue that Bechler was not injured by MHL § 9.46. Alternatively, State Defendants contend that Bechler lacks standing because his injury has already been addressed, insofar as a state-court judge has reinstated his pistol license.
State Defendants further contend that venue is improper in the Western District, because none of them reside in the Western District, and because a substantial part of the events giving rise to the lawsuit did not occur in the Western District. With regard to residency, State Defendants contend that they all reside in the Northern District, while DeMarco and the Hospital reside in the Eastern District.
State Defendants also maintain that even if Plaintiffs have standing, the Amended Complaint fails to state actionable claims. In that regard, State Defendants contend that MHL § 9.46 violates neither the Second Amendment nor the Fourteenth Amendment. With regard to the Second Amendment, State Defendants maintain that MHL § 9.46 regulates conduct (possession of firearms by the mentally ill) that falls outside the scope of the Amendment, and that restrictions on the possession of guns by mentally ill persons are presumptively lawful. Indeed, State Defendants note that it has been a long-standing requirement of applicants for firearms licenses in New York to disclose their mental health records, and that MHL § 9.46 merely facilitates the conveyance of such information to local licensing officials. Further, State Defendants argue that even if MHL § 9.46 implicates Plaintiffs' Second Amendment rights, it does not substantially burden those rights since, as just mentioned, the statute merely adds to the existing requirement that firearms licensees disclose their mental health information. State Defendants also contend that even if MHL § 9.46 substantially burdens Plaintiffs' Second Amendment rights, the statute nevertheless passes constitutional muster under heightened (intermediate) scrutiny, since MHL § 9.46 is substantially related to important governmental objectives, *334such as crime prevention and suicide prevention. As for Plaintiffs' Procedural Due Process claims, State Defendants maintain that even assuming that Plaintiffs have a protected liberty interest, they have sufficient process available to them, through an Article 78 proceeding. Finally, State Defendants assert that Plaintiff's Equal Protection and Substantive Due Process claims are duplicative of their Second Amendment claim, and lack merit in any event. In that regard, State Defendants maintain that MHL § 9.46 does not discriminate, and is neither arbitrary nor a gross abuse of governmental authority.
On March 13, 2015, Plaintiffs filed a combined response [# 28] to all of the Defendants' various motions to dismiss. Plaintiffs' response is organized into three sections: 1) legal sufficiency of the claims; 2) standing; and 3) venue.
Regarding standing, Plaintiffs generally argue that they have standing because their "civil liberties have been and continue to be violated."129 Plaintiffs' response, however, does not attempt to explain how Montgomery, Carter or Reid have standing specifically under MHL § 9.46. Instead, Plaintiffs seem to argue that they have standing by virtue of having been wrongly labeled as involuntarily committed. Plaintiffs have not submitted affidavits concerning standing from any plaintiff except Montgomery, and, as already mentioned, Montgomery's affidavit indicates that he was improperly reported as "involuntarily committed,"130 but does not explain how he was injured by MHL § 9.46. In sum, Plaintiffs argue that they have standing because they were injured, regardless of the specific mechanism by which they were injured, whether it be MHL § 9.46 or some other provision of New York law, such as MHL § 9.41.
Regarding State Defendant's contention that Bechler was not injured by MHL § 9.46 because he was already reported as having been involuntarily committed, Plaintiffs assert, incorrectly, that Defendants have not submitted any evidence to support that claim.131 Alternatively, Plaintiffs vaguely argue that it was the MHL 9.46 report, and not the report of the involuntary commitment, that caused Ontario County Court Judge Reed to suspend Bechler's pistol license.132 However, this argument ignores the fact that, as State Defendants have shown, Judge Reed suspended Bechler's license on the same day that he was arrested, September 6, 2013, which was several days before the MHL § 9.46 report was filed.133 As for State Defendants' argument that Bechler lacks standing because his injury has already been remedied, Plaintiffs argue that even though Bechler's firearms license has been restored, the State could "swoop in" and take his license again.134
Regarding venue, Plaintiffs state that venue in this District is proper, in part, because "the State has physical offices *335throughout the state, including in Rochester," because NYSP also has offices in this District, and because OMH has a DCS in each county within the Western District.135 Plaintiffs also maintain that the "Western District [is the] place where several of the Plaintiffs... have suffered... injury... as a result of the actions of the Defendants."136 Otherwise, Plaintiffs discuss factors, such as "where a substantial presence of parties and witnesses are found, the means of the Plaintiffs, [and] the statewide reach of the State Defendants," as well as the fact that all counsel are admitted to practice in this district.137 Plaintiffs further contend that venue is proper in this district because an "abnormally high" number of reports under MHL § 9.46 have supposedly been filed in this district.138 Alternatively, Plaintiffs state that venue should "remain in the Western District, if for no other reason than in the interests of justice.
Plaintiffs arguments concerning the legal sufficiency of the pleadings, are, for the most part, not responsive to Defendants' specific objections. Nevertheless, the Court is able to discern the following major points. Plaintiffs argue that they have plausibly pleaded that they were discriminated against insofar as they were wrongly categorized as having been "involuntarily committed."140 Plaintiffs' argument on this point briefly references MHL § 9.46 a few times, but does not attempt to explain how their claims of having been wrongly treated as "involuntarily committed," even if true, are related to MHL § 9.46. Plaintiffs further maintain that there are inadequate due-process procedures in place to assist persons who have been incorrectly labeled as "involuntarily committed." In this regard, Plaintiffs argue that the procedure for correcting an erroneous report of "involuntary commitment," consisting of an Article 78 proceeding, is inadequate and not meaningful.141 Specifically, Plaintiffs argue that Article 78 proceedings are too costly and time-consuming.142 Plaintiffs also assert that New York State has a "financial incentive" to encouraging hospitals to mis-categorize patients as "involuntarily committed," so that State can then report such information to NICS.143 Plaintiffs'
*336do not explain, however, how the State of New York could actually benefit financially from such false reporting. Plaintiffs also contend that the legislative history of the SAFE Act fails to demonstrate any connection between the legislation and public safety.144 On this point, Plaintiffs argue that there is no reliable evidence that mentally ill persons are more dangerous than anyone else.145 Plaintiffs also insist that their privacy rights were violated, when they were reported as having been involuntary committed, and that MHL § 9.46 violates HIPAA, and in particular,
On March 30, 2015, Defendants filed their replies. Suffolk County's reply [# 30] again asserts that the Amended Complaint fails to state a Monell claim, since the County was not acting pursuant to its own policy when it suspended Montgomery's pistol license and seized his guns.148 The County also contends that Plaintiffs' alternative request to amend would have no effect on the County's motion, and would therefore be futile as to the County, since the proposed amended pleading contains no new allegations or arguments concerning the County.
Eastern Long Island Hospital's reply [# 31] repeats that Montgomery was admitted under MHL § 9.39 by a private attending physician, and that no report was filed against him under MHL § 9.46. Further, the Hospital indicates that an MHL § 9.39 admission is an involuntary admission, which the Hospital was required to report to OMH. Regarding the sufficiency of the pleadings, the Hospital indicates, with regard to Plaintiffs' privacy claim, that reports of involuntary admissions are required by law ( MHL § 7.09(j) ), and therefore do not violate HIPAA. Regarding the Equal Protection, Due Process and Second Amendment claims, the Hospital reiterates that it cannot be sued under Section 1983 because it is not a state actor, and that Plaintiffs' response does not address this point. Further, as to the Second Amendment claim, the Hospital indicates that it merely reported Montgomery's commitment under MHL § 9.39 as required by law, and was not involved in the taking of his guns or firearms license. In sum, the Hospital emphasizes *337that it did not make the decision to admit Montgomery, and that the only action it took was to file the report concerning Montgomery's involuntary admission, as required by law, MHL § 7.09(j).
State Defendants' reply [# 33] begins by noting that "Plaintiffs' puzzling opposition ... neither engages the State Defendants' arguments [concerning standing] nor addresses the governing caselaw [on that issue] cited in [State Defendants'] moving brief."149 State Defendants point out, in that regard, that Plaintiffs have not challenged the assertion that MHL § 9.46 was never applied to Montgomery, Carter or Reid. As for Bechler, State Defendants repeat that MHL § 9.46 caused him no injury to begin with, and that in any event he has already regained his pistol license and his guns. The mere possibility of future harm, State Defendants argue, is too speculative to give Bechler standing. State Defendants also contend that Plaintiffs' response fails to explain how venue is proper in this District. Regarding the sufficiency of Plaintiffs' claims, State Defendants' begin by reasserting that MHL § 9.46 does not violate the Second Amendment, even assuming that a claim involving MHL § 9.46 was pleaded. In that regard, State Defendants specifically argue, contrary to what Plaintiffs claim, that any such Second Amendment analysis would not require strict scrutiny, and that MHL § 9.46 satisfies intermediate scrutiny. State Defendants further maintain that Plaintiffs' response fails to demonstrate a violation of Plaintiffs' privacy rights. Regarding Plaintiffs' procedural due process claims, State Defendants argue that Plaintiffs incorrect in asserting that persons reported under MHL § 9.46 have no remedies available to them, since they can bring Article 78 proceedings, and that pre-deprivation hearings in the context of MHL § 9.46 are not feasible for public safety reasons. State Defendants also contend that Plaintiffs' response fails to address their equal protection arguments, and that the cause of action fails in any event since Plaintiffs do not claim membership in a suspect class, and MHL § 9.46 does not treat similarly-situated persons differently or infringe fundamental rights. Finally, State Defendants argue that Plaintiffs' substantive due process claims should be deemed abandoned, since Plaintiffs did not address them in their response.
On September 17, 2015, counsel for the parties appeared before the undersigned for oral argument. During oral argument, the Court questioned Plaintiffs' counsel on issues including standing, joinder and Eastern Long Island Hospital's status as a state actor for purposes of § 1983. The Court also discussed a motion for temporary-sealing of documents that had been filed by Defendants, and Plaintiffs' response to that application. After oral argument, the Court invited additional briefing on the issue of joinder, and granted Plaintiffs permission to file their own motion to seal. On October 15, 2015, counsel for Plaintiffs and for Suffolk County submitted supplemental letter briefs, in which Plaintiffs argue that Eastern Long Island Hospital is a state actor under § 1983, while Suffolk County addresses issues of standing and joinder. Plaintiffs also filed a motion to seal (Docket No. [# 39] ), after which there was additional briefing on that application.150
In connection with the Court's consideration of all of the pending applications, it requested additional information relating to the circumstances of Mr. Montgomery's admission to Eastern Long Island Hospital, *338because it was relevant to the issue of his standing to challenge MHL § 9.46. In that regard, the Court observed, for example, that although Nurse de Reeder's affidavit indicated that Montgomery had been involuntarily admitted, it neither identified the private attending physician who admitted Montgomery, nor explained the circumstances warranting an involuntary admission. Also, based upon its review of the Mental Hygiene Law, the Court determined that a Form OMH 474 must have been completed by a physician at the time of Montgomery's admission, though it was not part of the record. On April 26, 2016, the Court sent a request to all counsel, requesting a copy of the Form OMH 474 that was allegedly used to involuntarily admit Montgomery. Counsel for the Hospital responded that she had a copy of the form, but was reluctant to provide it to the Court without Mr. Montgomery's express permission, in light of HIPAA. Plaintiffs' counsel responded and provided a copy of the form to the Court, but not to Defendants' counsel. Thereafter, Defendants' counsel requested copies of the form that Plaintiffs' counsel had provided to the Court.
On May 10, 2016, the Court issued a letter Order [# 43] which, inter alia , observed that Montgomery had placed his medical/mental condition at issue, and directed the parties to immediately prepare a stipulated confidentiality order. The letter Order also directed Plaintiffs' counsel to provide opposing counsel with authorizations for "medical/mental health records." The letter Order further directed that Eastern Long Island Hospital submit a supplemental affidavit "clarifying the circumstances of Mr. Montgomery's admission, including the identity of the doctor who signed the OMH 474 form and his/her relationship to the hospital and to Mr. Montgomery," and indicating whether the Hospital had a policy of "classifying all psychiatrically-based emergency room admissions as involuntary commitments," as Montgomery alleged. The Court also directed Plaintiffs' counsel to submit an affidavit from Montgomery's doctor, who, the Hospital claimed, had recommended Montgomery for involuntary commitment.
Subsequently, the Court received a series of communications from counsel, regarding their unsuccessful attempts to draft a mutually-acceptable confidentiality order. The communications from Defendants indicated that Plaintiff's counsel was holding up the process. On August 9, 2016, the Court issued an Order to Show Cause [# 44] directing Plaintiffs to show cause why they should not be sanctioned for failing to comply with the Court's prior Order [# 43].
On September 1, 2016, Plaintiffs filed a response [# 45], addressing the Order to Show Cause, requesting a stay of the action to allow settlement negotiations, and submitting additional exhibits relating to the pending motions. The response includes an affidavit from Mr. Montgomery, dated June 4, 2016, indicating that he was admitted by doctors at the hospital, whose identity he does not know, and not by his own primary care physician. The response also includes an affirmation [# 45] from Plaintiffs' counsel which is interesting to the Court insofar as it expresses her belief that the instant lawsuit, which is ostensibly directed at MHL § 9.46, and which demands relief (including preliminary injunctive relief) relating only to MHL § 9.46, actually involves "two topics" or "two tracks," namely, an "involuntary commitment" track and an MHL § 9.46 track. With regard to this so-called "involuntary commitment" track, counsel seems to allege that this lawsuit is attempting to assert a claim that Defendants have failed to conduct an "independent analysis" as to "whether a medical report of 'involuntary *339commitment' [from a hospital] rises to the federal standards for disqualification encoded at
On September 9, 2016, State Defendants filed a response to Plaintiffs' submission [# 45], stating, in pertinent part, that
although Plaintiffs have repeatedly tried to confuse the issue, this case is about New York Mental Hygiene Law ("MHL") § 9.46[.]... That is the only statutory provision challenged in the operative Amended Complaint. It is likewise the only aspect of New York law that Plaintiffs see to "strike down," "render void ab initio ," and enjoin the State Defendants from "administering, operating and implementing." Plaintiffs have not mounted a challenge to other, separate provisions of state and federal law relating to gun possession and involuntary commitments.
Letter of William J. Taylor, Jr. dated September 9, 2016 (citations and internal quotation marks omitted).153
On December 8, 2016, the Court issued a letter Order [# 46], declining to impose sanctions on Plaintiffs, but directing that the parties finalize a confidentiality order within seven days. The Court further directed that the parties address the matters discussed in the Court's prior Order [# 43] "expeditiously." That is, the Court directed the parties to expeditiously submit the additional information (concerning Montgomery's hospitalization) requested by the Court in its letter Order [# 43] issued on May 12, 2016, once the confidentiality order was finalized.
On February 6, 2017, having heard nothing further from the parties, the Court emailed counsel to inquire about the case, pointing out that the Court still had "not received the materials discussed [in] the Court's letter order issued on May, 12, 2016." The same day, counsel for the Hospital responded, indicating that Defendants had only just received releases from Mr. Montgomery on January 12, 2017.154
On February 10, 2017, the Hospital filed a supplemental affirmation, with Mr. Montgomery's medical chart and affidavits from hospital staff attached as exhibits. The submission details that on May 23, 2014, Montgomery came to the Hospital emergency room with a letter from his treating nurse practitioner, indicating that Montgomery was "begging to be sedated" and required "hospitalization to stabilize *340his anxiety [and] psychotic thought processes[,] and to sleep."155 The affirmation further indicates that Montgomery was examined by an emergency room physician, Lawrence Schiff, M.D. ("Schiff"), who then consulted with another physician, Daniel Klages, M.D. ("Klages"), and a psychiatrist, Douglas Hoverkamp, M.D. ("Hoverkamp"), after which the decision was made to admit Montgomery to the hospital psychiatric unit pursuant to MHL § 9.39.156 Dr. Schiff and Dr. Hoverkamp both signed the OMH 474 form used to involuntarily admit Montgomery. Neither Schiff nor Hoverkamp are employees of the Hospital, though they have admitting privileges at the Hospital.157 The relevant Form OMH 474 states that Montgomery was complaining of insomnia and racing thoughts, and was sent to the Hospital by his therapist's office "for admission evaluation for personal safety."158 The Form OMH 474 indicates that Montgomery did not "show a tendency to cause serious harm" to himself or to others.159 In a progress noted dated May 25, 2014, Dr. Hoverkamp noted that Montgomery had been "admitted under a 9.39 status," due to "worsening depressed mood, intractable insomnia and bordering on psychosis, in terms of worry and paranoia."160 The Hospital also submitted a supplemental affidavit from Nurse de Reeder, stating that the Hospital "does not have a policy of classifying all psychiatrically based admissions from the emergency room as involuntary commitments," but rather, that "[t]he type of admission to the psychiatric unit is determined by the on call psychiatrist directing the admission," which in Mr. Montgomery's case was Dr. Hoverkamp.161 The Hospital further indicates that once Montgomery was involuntarily admitted under MHL § 9.39, the Hospital was required by MHL §§ 7.09(j) & 31.11(5) to report such fact, through the New York State Department of Health Portal.162 Nurse de Reeder further states that no one at the Hospital filed a report concerning Montgomery under MHL § 9.46.163
Upon the Court's receipt of the Hospital's supplemental response, no further briefing deadlines were extant. Nevertheless, on March 13, 2017, State Defendants submitted a supplemental letter brief,164 expressing the view that the Hospital's supplemental submission, along with the rest of the record, conclusively establishes that Montgomery was never reported under MHL § 9.46, and therefore lacks standing in this action.
Having received no further communications from the parties, on March 24, 2017, the Court issued a text order [# 49], stating:
*341"Counsel have had a sufficient amount of time to brief any applications currently pending before the Court. Accordingly, briefing on such applications is closed. The Court will render a written decision at its earliest opportunity."
One month later, on April 26, 2017, the Court received a letter from Plaintiffs' counsel, acknowledging the Court's text order [# 49], but asking the Court to consider some additional points. Counsel first expresses confusion regarding the Court's handling of the case,165 and questions whether the Court might be taking an incorrect view of the merits of the case due to its "apparent [negative] opinion of [her]." Counsel further contends that "none of the medical records" submitted by Defendants are "relevant to the legal inquiry of whether any [Plaintiffs] were 'involuntarily committed' in accordance with
In rendering its decision herein, the Court has considered all of the aforementioned submissions.
DISCUSSION
Defendants' motions contend that the Court should dismiss this action for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1), for improper venue, pursuant to Fed.R.Civ.P. 12(b)(3), and for failure to state a claim, pursuant to Fed.R.Civ.P. 12(b)(6). The Court will consider the issues in that order.
Motions to Dismiss for Lack of Subject Matter Jurisdiction
Eastern Long Island Hospital and State Defendants166 contend that all Plaintiffs lack standing to maintain this action, and the general legal principles concerning standing can be succinctly stated as follows:
*342The defect of standing is a defect in subject-matter jurisdiction. In order to establish constitutional standing, a plaintiff must demonstrate that a case or controversy exists by showing (1) that he has suffered an "injury in fact" that is "concrete and particularized" and "actual or imminent, not conjectural or hypothetical"; (2) that the injury is "fairly traceable" to the challenged action of the defendant; and (3) that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Ass'n of Am. Physicians & Surgeons, Inc. v. Sebelius ,
Moreover, "[t]o establish standing to obtain prospective relief, a plaintiff must show a likelihood that he will be injured in the future." Carver v. City of New York ,
"The basic question when standing is at issue is whether the plaintiff has alleged "such a personal stake in the outcome of the controversy" as to warrant his or her invocation of federal-court jurisdiction, and to justify exercise of the court's remedial powers on his or her behalf. Baker v. Carr ,
When considering this issue, District Courts must be careful not to confuse standing with the merits of the plaintiff's claim.167
The Second Circuit has emphasized that the fundamental aspect of standing is its focus on the plaintiff and not on the issues the plaintiff wishes to have adjudicated. United States v. Vazquez ,145 F.3d 74 , 80 (2d Cir.1998). The aim of a court's investigation into a plaintiff's standing is to determine "whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his *343behalf." Warth v. Seldin ,422 U.S. 490 , 498-99,95 S.Ct. 2197 ,45 L.Ed.2d 343 (1975) (internal quotation omitted). The standing issue must therefore be resolved "irrespective of the merits of [the] substantive claims."168 Bordell v. Gen. Elec. Co. ,922 F.2d 1057 , 1060 (2d Cir.1991).
State Farm Mut. Auto. Ins. Co. v. Mallela , No. CV-00-4923 (CPS),
Challenges to standing can be either "facial" or "fact based," and the burden on the plaintiff varies depending upon which type of challenge is being made.
[A] challenge to subject-matter jurisdiction pursuant to Rule 12(b)(1) may be facial or fact-based. When a defendant raises a facial challenge to standing based solely on the complaint and the documents attached to it, the plaintiff has no evidentiary burden and a court must determine whether the plaintiff asserting standing alleges facts that affirmatively and plausibly suggest that the plaintiff has standing to sue. In making such a determination, a court must accept as true all allegations in the complaint and draw all inferences in the plaintiff's favor. Where a Rule 12(b)(1) motion is fact-based, a defendant proffers evidence outside the pleadings and a plaintiff must either come forward with controverting evidence or rest on the pleadings if the evidence offered by the defendant is immaterial. Where the evidence presented by defendants is both material and controverted, a court must make findings of fact in aid of its decision as to standing.
Fullwood v. Wolfgang's Steakhouse, Inc. , No. 13 CIV. 7174 (KPF),
A dismissal for lack of standing must be without prejudice. See, Katz v. Donna Karan Co., L.L.C. ,
The question of standing is claim-specific.169 In other words, before a *344court can consider whether a plaintiff has standing to assert a claim, it first must identify the claim that is being asserted.170 The instant case is unusual, because the parties disagree about what claims Plaintiffs are asserting. Movants insist that Plaintiffs' action involves only a challenge to MHL § 9.46. Plaintiffs, however, contend that they are actually asserting two different claims: First, a challenge to MHL § 9.46 ; and second, a claim ("the involuntary commitment claim") that Defendants are intentionally mis-categorizing patients as "involuntarily committed" or that they have failed to conduct an "independent analysis" as to "whether a medical report of 'involuntary commitment' rises to the federal standards for disqualification encoded at
"[W]here, as here, the parties disagree whether the complaint was sufficient to put the defendant on notice of a particular claim, notice pleading standards require that the complaint be read liberally in favor of the plaintiff." Perry v. Am. Airlines, Inc. ,
Rule 8(a) of the Federal Rules of Civil Procedure requires only that a complaint give the defendant "fair notice" of the claims being asserted. See , Keiler v. Harlequin Enterprises Ltd. ,
Here, the Amended Complaint [# 14] fails to satisfy Rule 8(a) insofar as Plaintiffs claim to be asserting an "involuntary commitment" claim. To begin with, the Amended Complaint opens with a one-page statement purporting to explain the "NATURE OF THE ACTION," which is entirely focused on MHL § 9.46. This paragraph does not mention involuntary commitment. Rather, this paragraph gives the reader the clear and unmistakable impression that this lawsuit involves a challenge to the recently-enacted MHL § 9.46, which is not a commitment statute. If Plaintiffs were intending to assert a claim involving systematic mis-classification of persons as "involuntarily committed," as they now claim, this opening paragraph would have been a very opportune place for them to say so. They did not do so, and consequently the reader is led to believe that this action is about MHL § 9.46. Certainly, that was the Court's understanding from reading the paragraph.
The Amended Complaint [# 14] then continues with 292173 paragraphs of factual allegations, almost all of which expressly relate to MHL § 9.46. "Involuntary commitment" is not mentioned until the thirteenth page of the pleading, and even then it is only mentioned in the context of differentiating MHL § 9.46 from the rest of Mental Hygiene Law Article 9. The eighteenth and nineteenth pages of the pleading discuss the fact that a person may become ineligible from possessing firearms under 18 U.S.C, § 922(g) after being adjudicated mental defective or involuntarily committed, but without any explanation for how such fact relates to MHL § 9.46, which had been the sole topic of discussion up until that point. Page twenty-seven of the pleading again briefly mentions
In reality, NYS Police have taken the position of instructing local licensing officials to suspend and terminate pistol permits for all persons reported through MHL § 9.46 as having been involuntarily committed to a mental institution.
Amended Complaint [# 14] at ¶ 91. However, although this paragraph mentions involuntary commitment, it implies that Plaintiffs were "reported through MHL § 9.46," and does not indicate that Plaintiffs are attempting to assert a stand-alone claim involving improper involuntary commitments.
It is not until page thirty-eight of the Amended Complaint, at paragraphs 134-136, that the pleading says anything resembling what Plaintiffs now refer to as their "involuntary commitment" claim. Paragraph 134 asserts, without explanation, that "State Defendants in their political drive to confiscate firearms are failing to distinguish between the new MHL § 9.46 and the continuing MHL § 9.41, which is a pre-existing provision for involuntarily [sic] commitment." Paragraph 135 asserts that "it appears" that OMH and "emergency room providers" are classifying persons as "involuntarily committed"
*346who were not in fact involuntarily committed, but provides no factual basis for that statement. And finally, paragraph 136 states:
It appears that the Office of Mental Health, Department of Criminal Justice Services, and NYS Police are failing to obtain critical data that would support an accurate characterization of a patient as having been 'involuntarily committed," meaning to have been formally adjudicated as a mental defective or involuntarily committed as these terms are defined at federal law and regulations cited herein.
Judging from Plaintiffs' later submissions, paragraph 136 of the Amended Complaint is apparently where Plaintiffs believe they have pleaded an "involuntary commitment" claim. Only with the benefit of such later submissions does it now appear that Plaintiffs were attempting to claim that state officials should not rely upon reports, provided to them by hospitals or doctors, indicating that someone has been involuntarily committed. Apparently, in that regard, Plaintiffs contend that state officials should not accept such reports at face value, and should not report involuntary commitments to NICS, until after a court has performed its own investigation into the circumstances of each alleged involuntary commitment.
However, regardless of what Plaintiffs intended, the Amended Complaint does not give Defendants fair notice of such a claim. Notably, after paragraphs 134-136, the pleading makes factual allegations concerning the individual plaintiffs, which, although they include allegations that Plaintiffs were wrongly labeled as involuntary commitments, seem to blame any mistake in that regard on the SAFE Act, and, particularly, MHL § 9.46.174 Consequently, since the expressly-stated purpose175 of the Amended Complaint is to attack a specific section of the SAFE Act- MHL § 9.46 -the reader is left with the impression that Plaintiffs are somehow blaming the fact that they were improperly classified as "involuntarily committed" on MHL § 9.46. Although such a claim makes no logical sense, it nevertheless seems to be what the pleading is asserting.176
This impression is reinforced at the end of the Amended Complaint, where Plaintiffs set forth their four causes of action. The first cause of action ("right to privacy"), third cause of action ("due process") and fourth cause of action ("right to keep and bear arms") refer only to MHL § 9.46, and do not mention involuntary commitment. The second cause of action repeatedly references MHL § 9.46, but then ends with two references to involuntary commitment. However, it is not obvious that those references to involuntary commitment are attempting to assert a separate claim, unrelated to the immediately-preceding statements about MHL § 9.46.
Similarly, the Amended Complaint's ad damnum clause seeks relief almost entirely related to MHL § 9.46, and does not mention involuntary commitment. "The prayer for relief is no part of the plaintiff's cause of action." City of Los Angeles v. Lyons ,
In sum, the Court finds that the Amended Complaint fails to give fair notice to Defendants that it is attempting to assert a stand-alone involuntary commitment claim. Rather, the pleading only gives fair notice that it is challenging MHL § 9.46. Accordingly, to the extent that Plaintiffs were attempting to assert an "involuntary commitment" claim in the Amended Complaint, it is dismissed under Rule 8(a), without prejudice.177 Therefore, in connection with the challenge to Plaintiffs' standing, the Court will only consider whether Plaintiffs have standing to challenge MHL § 9.46.
Having found that the Amended Complaint asserts a challenge only to MHL § 9.46, it is clear that Montgomery, Carter and Reid have no standing in this action, since they were not affected by MHL § 9.46, and have not shown that they are in imminent danger of being affected by MHL § 9.46 in the future. That is, they have not shown an injury that is "fairly traceable" to the challenged action of the defendants in enacting and/or enforcing MHL § 9.46.
For example, there is not a single shred of evidence in the record that MHL § 9.46 had anything whatsoever to do with what happened to Mr. Montgomery. Rather, all of the evidence indicates that whatever happened to Montgomery resulted from him being admitted to the hospital pursuant to MHL § 9.39, rightly or wrongly.
There is similarly no evidence that a § 9.46 report was filed concerning Carter. At most, the Amended Complaint indicates that after Carter was taken to the hospital by police under circumstances clearly implicating MHL § 9.41, a police officer told him that his guns could not be returned to him, "due to the SAFE Act."178 However, even if it could be inferred that this vague statement refers to MHL § 9.46, as opposed to some other provision of the SAFE Act, such as PL § 400.00(1)(j) & (11)(a) & (c), Defendants have provided sworn evidence that no MHL § 9.46 report was filed concerning Carter. Moreover, Plaintiffs admit that the relevant entry in Carter's medical chart refers to MHL § 9.41.179
As for Reid, at most the Amended Complaint vaguely indicates that Reid received a notice which she interpreted as indicating that MHL § 9.46 might had something to do with the suspension of her pistol license.180 However, the pleading admits that the "language [of the notice Reid received] implicates both MHL § 9.41 and § 9.46, without referencing any section of law. "181 Further, Reid has not submitted the actual document to which the pleading refers, nor has she otherwise refuted Defendants' sworn evidence that no MHL § 9.46 report was ever actually filed concerning her.
In any event, to the extent that there is any bona fide factual issue on this point, the Court finds that Montgomery, Carter and Reid were never reported under MHL § 9.46, and that to the extent that they *348suffered any injuries, they were not caused by MHL § 9.46. Further, Montgomery, Carter and Reid have not shown that they are in imminent danger of being reported under MHL § 9.46 in the future. Accordingly, the claims of Montgomery, Carter and Reid in the Amended Complaint [# 14] are dismissed in their entirety, pursuant to Rule 12(b)(1), without prejudice. Moreover, since the only claims being asserted against Suffolk County and Eastern Long Island Hospital are by Montgomery, the County and the Hospital are dismissed from the action entirely, pursuant to Rule 12(b)(1), without prejudice.
Regarding Bechler, the issue remains whether he has standing to maintain claims involving MHL § 9.46 against State Defendants, where an MHL § 9.46 report was filed against him only after his pistol license had already been suspended due to an involuntary commitment.182 In this regard, it appears clear to the Court that even without the MHL § 9.46 report, Bechler's firearms license would have been suspended or revoked, his firearms would have been seized, his name would have been reported to both NICS and the New York State database, and he would have become ineligible to buy or possess firearms pursuant to
For purposes of standing, the burden on a plaintiff to show that his injury is "fairly traceable" to the challenged conduct of the defendant is modest, and is less than the showing required to prove proximate causation:
The requirement that a complaint allege an injury that is fairly traceable to defendants' conduct for purposes of constitutional standing is a lesser burden than the requirement that it show proximate cause. Thus, the fact that there is an intervening cause of the plaintiff's injury may foreclose a finding of proximate cause but is not necessarily a basis for finding that the injury is not "fairly traceable" to the acts of the defendant.... [I]t is wrong to equate injury "fairly traceable" to the defendant with injury as to which the defendant's actions are the very last step in the chain of causation. Rather, at the pleading stage of the litigation, the plaintiffs' burden of alleging that their injury is "fairly traceable" to the challenged act is relatively modest.
*349Rothstein v. UBS AG ,
Nevertheless, State Defendants contend that Bechler cannot meet this burden, since his firearms license was already suspended by the time the MHL § 9.46 report was filed, and he would have faced all of the same consequences (suspension of license, reporting to DCJS and NICS, seizure of weapons) about which he complains in this action even if no MHL § 9.46 report had been filed. On this point, State Defendants cite, inter alia , Exotic Animal Owners v. New York , No. 03-7327,
The Court agrees with State Defendants, and finds that Plaintiffs have failed to carry their burden of affirmatively showing that Bechler has standing to challenge MHL § 9.46. Specifically, Plaintiffs have not shown either that Bechler's alleged injury is "fairly traceable" to actions of State Defendants involving MHL § 9.46, or that it is likely such injury will be redressed by a favorable decision by this Court involving MHL § 9.46.
Bechler's injury is not fairly traceable to MHL § 9.46, because the filing of the MHL § 9.46 report was redundant, and put him in no worse position than he was already in after he was reported as involuntarily committed. See , Phelps v. Bosco , No. 113CV1510GTSCFH,
Similarly as to "redressability," Plaintiffs have not explained how a favorable ruling in this action concerning MHL § 9.46 would redress Bechler's alleged injury, since he suffered even more injuries due to having been classified as "involuntarily committed" than he would have suffered solely from an MHL § 9.46 report.186 Nor has Bechler shown that he is in imminent danger of being reported under MHL § 9.46 in the future. Accordingly, Bechler lacks standing to challenge MHL § 9.46.
For all of the foregoing reasons, the applications to dismiss the Amended Complaint, for lack of standing pursuant to Rule 12(b)(1), by Eastern Long Island Hospital and State Defendants, are granted. Moreover, although Suffolk County did not move to dismiss for lack of standing, the Court finds, sua sponte , that Plaintiffs also lack standing to assert claims under MHL § 9.46 against the County, for the same reasons that they lack standing to assert MHL § 9.46 claims against the other defendants. See, In re Indu Craft, Inc. ,
Although the Court is satisfied that it lacks subject-matter jurisdiction over this action, due to Plaintiffs' lack of standing to challenge MHL § 9.46, it knows that on appeal, a reviewing Court might disagree. Moreover, the Court is keenly aware of the amount of time and energy that has been expended in researching, briefing and arguing the remaining aspects of the pending motions, concerning venue and the merits of Plaintiffs' claims. Therefore, despite the Court's ruling on jurisdiction, it would be the Court's preference to proceed and consider, in the alternative, the remaining aspects of the pending applications. However, the Second Circuit has indicated that such an alternative ruling by this Court would amount to an advisory opinion and a "nullity." For example, in Roistacher v. Bondi ,
[T]he portion of the judgment purporting to [alternatively] grant summary judgment to the defendants must be vacated as well. "Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Ex parte McCardle , 74 U.S. (7 Wall.) 506, 514,19 L.Ed. 264 (1868). See also Steel Co. v. Citizens for a Better Env't ,523 U.S. 83 , 101,118 S.Ct. 1003 ,140 L.Ed.2d 210 (1998) ("[A] court... resolv[ing] contested questions of law when its jurisdiction is in doubt ... produces nothing more than a hypothetical judgment-which comes to the same thing as an advisory opinion, disapproved by this Court from the beginning."). Having determined that it lacked subject-matter jurisdiction, the district court's subsequent consideration of the merits of Roistacher's claims was thus a nullity. We therefore cannot simply affirm the judgment's dismissal, in the alternative, of the case on the merits. The only effective part of the judgment below was the dismissal for lack of subject-matter jurisdiction[.]
Roistacher v. Bondi ,
Plaintiffs' Alternative Motion for Leave to Re-plead is Denied
Plaintiffs have alternatively requested leave to replead,189 and although the Court lacks subject matter jurisdiction over Plaintiffs' MHL § 9.46 claims, it may nevertheless allow Plaintiffs an opportunity to file an amended complaint. See , Oliver Sch., Inc. v. Foley ,
However, even the liberal amendment standard has its limits. See, Jin v. Metro. Life Ins. Co. ,
Leave to amend may also be denied where the plaintiff has already had sufficient opportunities to fix the complaint. As one Court has stated,
[w]hile pleading is not a game of skill in which one misstep may be decisive to the outcome, neither is it an interactive game in which plaintiffs file a complaint, and then bat it back and forth with the Court over a rhetorical net until a viable complaint emerges. It is the plaintiffs' responsibility to plead their case adequately, and a court may deny a plaintiff leave to replead when that party has-as here-been given ample prior opportunity to allege a claim.
In re Refco Capital Markets, Ltd. Brokerage Customer Sec. Litig. , No. 06 CIV. 643 (GEL),
Here, Plaintiffs have already filed two complaints that are not actionable for the reasons stated above. (Docket Nos. [# 1] & [# 14] ). Additionally, Plaintiffs have requested leave to file a "Second Amended Complaint" in the event that the Court is "inclined to grant the Defendants' motions to dismiss,"190 which it is. In support of this alternative request to amend, Plaintiffs' make a one-page argument,191 which states in pertinent part:
*352A 'Second Amended Complaint' would bring together the additional information from the Defendants [referring to the exhibits filed by Defendants in support of their motions to dismiss] to, in essence, complete the story against '9.46' in the full context of its associated '9.41' reporting system.... This amendments would not relate to the Plaintiffs; the amendments finish the narrative about the actions being taken in an on-going manner against those tagged as 'mentally ill' and/or 'involuntarily committed,' reported through the PERDS form or the ISARS form, being fanned out across state and local offices and agencies and uploaded to the federal government.
Docket No. [# 28-2] at p. 49 (Memo p. 42).
As for the proposed Second Amended Complaint itself (Docket No. [# 28-3] ), the Court notes, as an initial matter, that the proposed pleading does not comply with Rule 15(b) of the Local Rules of Civil Procedure.192 As for the actual allegations, the proposed pleading, like the first two complaints, is focused almost entirely on MHL § 9.46. Indeed, the vast majority of the proposed pleading appears to be identical to the Amended Complaint [# 14]. From the Court's visual comparison of the two documents, the changes in the proposed pleading seem to be in paragraphs 134, 141-156, 340-346, 357, 361-362, 364, and the ad damnum clause, paragraphs VI-IX. The bulk of these changes, appearing at paragraphs 141-156, are factual allegations summarizing the procedures under New York State law for reporting persons, who have been involuntarily committed under the Mental Hygiene Law, to OMH/DCJS/NICS, as discussed by the Court above. The proposed pleading then asserts that such provisions are confusingly similar to the provisions under MHL § 9.46, which has "created confusion, including among licensing officers, court personnel, and other government employees charged with license interface."193 The proposed pleading further alleges that the State of New York "actively recruits medical providers, especially hospitals," to report information to the federal government, to help the State get "grant moneys and further its goals of termination of firearms licenses and firearms ownership."194 Although the proposed pleading does not expressly say so, the Court understands, from Plaintiffs' other submissions, that Plaintiffs' theory in this regard is that the State of New York encourages medical providers to file false reports of involuntary commitments, so that the State can reap financial rewards related to the NICS Improvement Amendments Act of 2007.
The proposed Second Amended Complaint [# 28-3], like the Amended Complaint, purports to set forth four causes of action.195 These causes of action are basically identical to those in the Amended Complaint, except that instead of referring just to MHL § 9.46, they now refer to " [MHL] 9.41 and/or 9.46" or " '9.46' and '9.41.' " As for relief, the proposed amended *353pleading demands, in addition to previously-demanded relief relating to MHL § 9.46, that the Court order an audit of all of the State of New York's records concerning reports of involuntary commitments under the Mental Hygiene Law, and that the Court issue
an order requiring that any persons reported by the State to the FBI or otherwise uploaded to the federal government to be included in the NICS database shall be released from said disqualification unless the third party audit can establish that the patient was 'involuntarily committed' as such term means at statutory and regulatory federal law.
Docket No. [# 28-3] at pp. 85-86, ¶ ¶ VII & VIII. In other words, Plaintiffs want this Court to order that the names of any New York residents who have been reported to NICS due to involuntarily commitment, be expunged and removed from the State's records and from NICS, unless the State can independently prove that such persons were, in fact, involuntarily committed. In this regard, Plaintiffs are contending that it is unconstitutional for the State to rely solely upon reports, from hospitals and medical providers, indicating that patients have been involuntarily committed, when disqualifying persons from holding firearms licenses or from possessing guns.
Plaintiffs' request to replead is denied. To the extent that the proposed amended pleading re-asserts claims involving MHL § 9.46, leave to amend is denied as futile for the reasons already discussed herein. Leave to amend is also denied as futile insofar as the proposed pleading attempts to state claims regarding "involuntary commitment." The proposed pleading contends that medical providers are being confused by similarities between MHL § 9.46 and the involuntary commitment provisions under MHL Article 9, and implies that such confusion is resulting in reports being improperly filed against persons seeking mental health treatment. The proposed pleading further alleges that the State is intentionally encouraging medical providers to file false reports concerning involuntary commitments, which can be uploaded to NICS. According to the proposed pleading, the purpose of the State's alleged scheme is twofold: To disarm citizens, and to obtain money from the Federal Government.
However, the proposed pleading fails to allege facts to make any of these allegations plausible. For example, there are no factual allegations plausibly suggesting that medical providers are actually failing to distinguish between MHL § 9.46 and MHL § 9.41.196 Nor are there any factual allegations to support Plaintiffs' contention that the State is encouraging medical providers to file false reports of involuntary commitments. Additionally, there are no factual allegations to plausibly suggest that the State would benefit financially from padding the number of names reported to NICS. To the contrary, the Court has already discussed how the financial incentives under the NICS Improvement Amendments Act of 2007 are based upon the accuracy of reporting, not upon the number of names reported.
Furthermore, to the extent that Plaintiffs are maintaining that the State cannot permissibly rely upon the reports of doctors to disqualify persons from firearms ownership, or to report names to NICS, the argument fails as a matter of law.197
*354Specifically, the Second Circuit recently stated that such reports from doctors are "exactly the sort of" evidence that should be used to establish an "involuntary commitment" under
Like Section 9.27, Section 9.39 [of the New York Mental Hygiene Law] creates a procedure to admit an individual into a hospital against her will when her mental illness presents a serious danger to herself or others. Individuals hospitalized under either provision, or their representatives, have a right to seek judicial review of that determination. See N.Y.M.H.L. § 9.31(a) (providing this right for Section 9.27 confinements); N.Y.M.H.L. § 9.39(a) (providing this right for Section 9.39 confinements). And, as in [ U.S. v. Waters ,23 F.3d 29 (2d Cir. 1994),198 cert. denied ,513 U.S. 867 ,115 S.Ct. 185 ,130 L.Ed.2d 119 (1994) ], [the Appellant's] 2005 admission was based on the recommendation of at least two physicians, at least one of whom was a psychiatrist, and included treatment during the course of his stay. That is exactly the sort of determination that a federal statute should include in its definition of "commitment" insofar as it is concerned with preventing firearms from getting into the hands of those whose mental illness might lead them to commit acts of violence. And it is the sort of process that ensures the determination is not arbitrary.
Phelps v. Bosco ,
Plaintiffs have not requested further leave to amend, and the Court would not be inclined to grant such a request in any event. Plaintiffs have already made three attempts to plead actionable claims, and seem to be no closer to doing so than when they started. For example, although Defendants raised the issue of Plaintiffs' lack of standing to challenge MHL § 9.46 as soon as they appeared in the action, Plaintiffs have continued to press the same claims under that statute in all three iterations of the complaint. Further, Plaintiffs' pleadings have repeatedly insisted that MHL § 9.46 violates HIPAA, while overlooking the very provision (
*355Additionally, the Court believes, from its experience to date with this action, that if Plaintiffs are given a further opportunity to amend, they will continue to press the very same claims and theories, rather than admit that they have been barking up the wrong tree all along by focusing on MHL § 9.46.200 For example, Plaintiffs's papers indicate that if they were given a further opportunity to amend, they would use it to take information from Defendants ' submissions, and "bring together the additional information from the Defendants to, in essence, complete the story against '9.46' in the full context of its associated '9.41' reporting system."201 The Court has fully reviewed Defendants' submissions, and fails to see how they help Plaintiffs' case.
In the Court's view, Plaintiffs' claims arise, if at all, from the fact that they were wrongly classified as having been involuntarily committed under provisions of MHL Article 9 other than MHL § 9.46.202 To the extent that Plaintiffs were incorrectly classified in that regard, such fact would be the result of error in medical judgment, as opposed to any defect in the provisions of MHL Article 9. Moreover, Plaintiffs have already argued to this Court that such provisions have adequate due-process procedures built into them.203 Accordingly, it seems that what Plaintiffs really need to do is to utilize those procedures to correct the record as to the nature of their admissions. Indeed, it appears that all or most of the Plaintiffs have already done so through Article 78 proceedings or similar proceedings. To the extent that Plaintiffs now claim that MHL Article 9's commitment provisions are unconstitutional, they may wish to bring an action to that effect, preferably in the Northern District where venue would unquestionably be proper as to State Defendants.204
For all of the foregoing reasons, any further request for leave to amend is denied. See, Levin v. Credit Suisse, Inc. ,
CONCLUSION
Defendants' applications to dismiss for lack of subject matter jurisdiction are *356granted, and this action is dismissed without prejudice. Plaintiffs' cross-motion to amend is denied, and further leave to amend is also denied. Plaintiffs' application for preliminary injunctive relief is denied as moot.205 The Clerk of the Court is directed to close this action.
SO ORDERED.
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