Introduction

This commentary analyzes the Second Circuit’s non‑precedential affirmance in Arbeeny v. Cuomo. The panel upheld dismissal of federal civil‑rights claims against former New York officials and hospital‑industry defendants arising from New York State Department of Health’s March and April 2020 advisories (the “Directives”) that barred long‑term care facilities from denying admission solely due to a COVID‑19 diagnosis. Plaintiffs—children of residents who contracted COVID‑19 and later died after the Directives issued—brought claims under 42 U.S.C. § 1983 and § 1985 (and state wrongful‑death claims), alleging constitutional violations and violations of rights they attributed to the FNHRA. The district court dismissed: (1) the claims against the State Defendants (Andrew M. Cuomo, Melissa DeRosa, Dr. Howard A. Zucker) on qualified‑immunity grounds; (2) the § 1983 claims against private hospital‑sector defendants (Northwell Health, its CEO Michael Dowling; Greater New York Hospital Association (GNYHA), and its head Kenneth Raske) for lack of state action; and (3) the § 1985 claims for failure to plead animus, declining supplemental jurisdiction over the state wrongful‑death claims.

The central issues on appeal were whether (a) plaintiffs identified “clearly established” rights that would have put reasonable officials on notice that adopting the Directives was unlawful in spring 2020; and (b) lobbying activity, campaign contributions, meetings, and policy advocacy by hospital associations and executives sufficed to make those private actors “state actors” or § 1983 conspirators. The Second Circuit affirmed across the board.

Summary of the Opinion

• Qualified immunity affirmed (State Defendants): Plaintiffs did not identify “clearly established” statutory or constitutional rights—particularized to the circumstances of early COVID‑19—that the Directives violated. The panel held it was objectively reasonable for state officials to believe the Directives were lawful in spring 2020, especially given the absence of Supreme Court guidance on due‑process limits in infectious‑disease management.
• FNHRA theory narrowed (for qualified‑immunity purposes): While Talevski permits § 1983 suits to vindicate certain FNHRA resident rights against facilities, it was not clearly established that state officials themselves owed duties to “protect” those enumerated rights. The statute’s enforcement architecture assigns oversight to state and federal regulators vis‑à‑vis facilities, not a direct duty running from state officials to residents.
• No state action by hospital defendants: Allegations that hospital entities lobbied, contributed to campaigns, met with officials, or helped draft immunity provisions did not convert them into “state actors” or § 1983 conspirators. Mere efforts to influence policy—even if successful—do not satisfy the joint‑action or conspiracy standards; by contrast, bribery could (but was not alleged).
• Section 1985: The dismissal for failure to plead animus was not challenged on appeal.
• State claims: The district court appropriately declined supplemental jurisdiction after dismissing all federal claims.

Analysis

Precedents Cited and Their Influence

• Qualified immunity framework: Harlow v. Fitzgerald (457 U.S. 800) and Ashcroft v. al‑Kidd (563 U.S. 731) set the two‑prong test: (1) violation of a statutory/constitutional right; and (2) whether that right was “clearly established.” Pearson v. Callahan (555 U.S. 223) permits courts to address either prong first. The panel focused chiefly on the “clearly established” prong, consistent with Pearson’s flexibility.
• Particularized “clearly established” law: The decision relies on the Supreme Court’s repeated admonition—City & County of San Francisco v. Sheehan (575 U.S. 600) and District of Columbia v. Wesby (583 U.S. 48)—that clearly established rights must be particularized to the facts, supported by controlling authority or a robust consensus, not high‑level generalities.
• FNHRA enforcement via § 1983: Health & Hospital Corp. of Marion County v. Talevski (599 U.S. 166) recognized that certain FNHRA resident rights (freedom from unnecessary restraints; transfer/discharge protections) are enforceable under § 1983 against facilities. The panel distinguished Talevski, emphasizing it did not clearly establish direct duties of state officials to “protect” those rights.
• State‑created danger and safe‑conditions jurisprudence: The court cited Lombardi v. Whitman (485 F.3d 73) to describe the state‑created danger theory’s contours (affirmative conduct heightening risk from third parties), but noted the absence of analogous applications to public‑health crises or to unintentional transmission by returning patients. DeShaney v. Winnebago County (489 U.S. 189) and Brooks v. Giuliani (84 F.3d 1454) were invoked to show that “safe conditions” duties typically arise when the state has involuntarily confined the plaintiff—unlike the nursing home residents here.
• Bodily integrity: The panel referenced Blouin ex rel. Estate of Pouliot v. Spitzer (356 F.3d 348) to highlight that bodily‑integrity cases commonly address consent to medical procedures—not the indirect public‑health consequences alleged here. District decisions involving lead paint and cold conditions (Stewart; Davis) concerned hazards long understood, not the evolving uncertainties of early COVID‑19.
• Objective reasonableness in emergencies: Liberian Community Ass’n of Conn. v. Lamont (970 F.3d 174) underscored that, as of spring 2020, the Supreme Court had not delineated due‑process limits for disease‑control measures, supporting the reasonableness of officials’ judgments under crisis conditions.
• State action and private actors: Betts v. Shearman (751 F.3d 78) and Ciambriello v. County of Nassau (292 F.3d 307) supply the “joint action” and § 1983 conspiracy standards. Ginsberg v. Healey Car & Truck Leasing (189 F.3d 268) stands for the principle that private parties do not become state actors merely because they benefit from governmental action they urged. Dennis v. Sparks (449 U.S. 24) illustrates the exceptional case—bribery—where private parties may act under color of law; plaintiffs did not allege bribery here.

Legal Reasoning

1) Qualified Immunity for State Defendants

FNHRA as a source of “clearly established” rights against state officials: Plaintiffs argued that FNHRA’s resident‑rights provisions, as recognized in Talevski, established rights enforceable against state officials via § 1983. The panel disagreed, emphasizing that FNHRA’s text and enforcement scheme assign oversight roles to state and federal regulators to police facility compliance—not a direct duty running from state officials to residents. As of spring 2020, no controlling authority or robust consensus had made it “clearly established” that state officials could be sued for damages under § 1983 for infringing FNHRA resident rights. That absence defeats the “clearly established” prong.

Constitutional theories framed at too high a level of generality: Plaintiffs invoked rights to be free from cruel or degrading treatment, to be free from state‑created danger, to safe conditions, to bodily integrity, and to life. The panel found these framed at a level of abstraction inconsistent with the “particularized” requirement. The cited cases either involved vastly different contexts (e.g., torture, kidnapping) or doctrinal settings (involuntary confinement; consent to medical care) not analogous to early‑pandemic public‑health directives governing admissions to privately operated long‑term care facilities. Absent factually similar precedent applying these doctrines to epidemic‑response policymaking or to unintentional third‑party spread, the rights were not “clearly established.”

Objective reasonableness in spring 2020: Even were there a recognizable right, qualified immunity still applies if reasonable officials could believe their conduct lawful. Given hospital surge fears, limited testing, evolving guidance, and the acknowledged lack of Supreme Court guidance on due‑process constraints in infectious‑disease management, the panel held that it was objectively reasonable for New York officials to believe the Directives were a legitimate public‑health response.

2) No “State Action” by Hospital Defendants

Plaintiffs alleged the hospital association and executives urged the Directives, contributed to political campaigns, met frequently with officials, and helped draft immunity provisions. The court held that such lobbying and policy advocacy—even if influential—does not convert private entities into state actors. The “willful participant in joint activity” test requires more than benefiting from or persuading government action; it demands joint engagement in the challenged decision with the state wielding its authority, or other indicia of concerted action such as bribery or coercive entwinement. The panel underscored that mere political contributions, without bribery or quid pro quo allegations (as in Dennis v. Sparks), are insufficient. The § 1983 conspiracy theory failed for similar reasons: the pleaded facts did not plausibly allege an unlawful agreement with state actors to violate a specific federal right.

3) Section 1985 and State Claims

The § 1985 claims were dismissed for failure to plead class‑based discriminatory animus; appellants did not challenge that ruling on appeal. With all federal claims dismissed, the district court declined supplemental jurisdiction over the state wrongful‑death claims, an exercise of discretion the panel found unassailable.

Impact and Implications

• Pandemic‑response litigation: The order reinforces a high bar for damages suits against state officials arising from early COVID‑19 decision‑making. Absent controlling, factually analogous precedent defining “clearly established” limits during fast‑moving public‑health crises, qualified immunity will often shield officials. Plaintiffs seeking accountability may need to focus on timely injunctive relief, state tort avenues, or statutory claims against facilities rather than damages against policymakers.
• FNHRA after Talevski: Talevski remains potent against facilities, but Arbeeny underscores that—at least for qualified‑immunity purposes—it was not clearly established in 2020 that FNHRA creates damages‑enforceable duties running directly from state officials to residents. Future plaintiffs would need controlling authority squarely holding that specific FNHRA provisions impose such duties on state officials.
• State‑created danger in public‑health contexts: The panel’s reasoning signals skepticism about applying state‑created danger or “safe conditions” doctrines to unintentional disease transmission in non‑custodial settings. Unless appellate courts extend those doctrines to epidemic policies, plaintiffs will struggle to show clearly established law in analogous circumstances.
• Lobbied‑for policies and “state action”: The decision draws a firm line between vigorous policy advocacy and § 1983 liability. Meetings, campaign contributions, and drafting assistance—even if causally connected to the resulting policy—do not, without more, transform private actors into state actors. Proof of bribery, a formal delegation of sovereign power, coercive entwinement, or joint decision‑making that commandeers state authority is needed.
• Pleading strategy going forward: Plaintiffs aiming to overcome qualified immunity must identify controlling or consensus authority with close factual similarity. For private defendants, detailed allegations showing bribery, contractual delegation of governmental functions, or concrete joint decision‑making are necessary to plausibly allege “under color of law.”

Complex Concepts Simplified

• Qualified immunity: A doctrine shielding government officials from damages unless they violated a statutory or constitutional right that was “clearly established” at the time, in a way that a reasonable official would have known. It focuses on whether prior cases clearly prohibited the specific conduct in context.
• “Clearly established” law: Not a general principle (e.g., “right to be safe”), but a fact‑specific rule recognized by controlling courts or a robust consensus, indicating that the precise conduct was unlawful under similar circumstances.
• Federal Nursing Home Reform Act (FNHRA): A federal statute setting minimum standards and enumerating rights for residents of Medicaid‑certified nursing facilities. Talevski permits certain resident rights to be enforced against facilities via § 1983. Whether, and in what circumstances, those rights run directly against state officials for damages remains unsettled.
• State‑created danger doctrine: A due‑process theory under which the state can be liable when its affirmative acts increase a plaintiff’s vulnerability to harm from third parties. Courts typically require concrete state action that heightens a specific risk in a manner that is foreseeable and, often, conscience‑shocking.
• “Under color of state law” (state action): Private parties are generally not liable under § 1983 unless they act jointly with the state, are coerced by the state, are delegated exclusive public functions, or otherwise entwined with the state’s authority. Lobbying and benefiting from government decisions, without more, do not suffice.
• Supplemental jurisdiction: Federal courts can hear state claims related to federal claims in the same case, but if all federal claims are dismissed early, courts commonly decline to keep the state claims, which can then be pursued in state court.

Conclusion

Arbeeny v. Cuomo affirms three practical propositions—albeit in a non‑precedential posture—that are likely to resonate in pandemic‑related litigation and beyond:

• In fast‑moving public‑health emergencies, qualified immunity will usually protect state officials from damages unless plaintiffs can point to highly analogous “clearly established” authority squarely forbidding the specific policy choices at issue.
• Talevski empowers suits to vindicate certain FNHRA resident rights against facilities, but Arbeeny underscores that, as of spring 2020, it was not clearly established that those rights imposed damages‑enforceable duties on state officials themselves.
• Private parties do not become state actors for § 1983 purposes by lobbying, contributing to campaigns, meeting with policymakers, or even drafting legislative language; the line is crossed by bribery, coercion, formal delegation, or other concrete joint action harnessing state power.

For practitioners, the decision is a reminder to frame § 1983 claims with precise, fact‑matched precedents and to allege specific, non‑conclusory facts showing either (1) a particularized violation of a clearly established right by officials, or (2) for private defendants, genuine joint action under color of state law. For policymakers and facilities, the order highlights the continuing doctrinal separation between regulatory oversight of nursing homes (where FNHRA applies directly) and damages exposure of state officials for system‑level emergency policies—a separation that, unless narrowed by future precedential decisions, will continue to shape the accountability landscape in health‑crisis responses.