MEMORANDUM OPINION
MICHAEL MILLS, District Judge
This cause comes before the court on Defendant DeSoto County's motion [5] to dismiss, or in the alternative, for summary judgment. Plaintiff, Eddie Carlisle, moves [10] to strike Defendant's request for summary judgment.
Plaintiff's complaint states that his constitutional rights were violated when:
(1) DeSoto County deputies submitted affidavits, as was their custom, which did not state facts showing probable cause when seeking a warrant for Carlisle's arrest.
(2) DeSoto County refused, consistent with an unwritten policy, to consider non-financial bail for Carlisle even though indigent defendants are constitutionally entitled to such consideration.
Facts
On December 17, 2007, Detective Sergeant Scott Sanko signed two affidavits alleging felony charges against Carlisle.
Affidavit one stated that Carlisle:
On or about 29 July 2007, in the county aforesaid, in said Justice District, did, willfully, unlawfully and feloniously take steal and carry away a Toro push mower and a weed eater, the personal property of Jefferson Rooney having the value of $800.
Affidavit two stated that Carlisle:
On or about 29 July 2007, in the county aforesaid, in said Justice District, did willfully, unlawfully and feloniously an burglariously break and enter attached garage at 6121 Wills Way Cr. Walls, MS 38680 the property of Jefferson Rooney in which valuable things kept for use with intent to steal therein; to wit Grand Larceny.
Acting only on the affidavits, a justice court judge issued arrest warrants for Carlisle that were ultimately served on September 22, 2008.
On September 25, 2008, Carlisle appeared before the Justice Court where he was charged with burglary and grand larceny. His bail was set at $60,000. Carlisle, who was an indigent, could not make bail and was incarcerated. On October 16, 2008 Carlisle's bail was reduced to $5,000. He was still unable to gather the necessary funds. Carlisle remained incarcerated in the DeSoto County Jail until July 9, 2009. There is no reference in the record as to why Carlisle was released. DeSoto County states that Carlisle has not been cleared of the charges. Carlisle does nothing to deny this allegation.
Standard of Review
This Court reviews DeSoto County's motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure Rule 12(b)(1). Lack of subject matter jurisdiction may be determined based on a: (1) complaint alone; (2) complaint supplemented by undisputed facts evidenced in record; or (3) complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001)
If a district court does not conduct an evidentiary hearing on a motion to dismiss, the party seeking to assert jurisdiction is required only to present sufficient facts to make out a prima facie case supporting jurisdiction. Central Freight Lines Inc. v. APA Transport Corp., 322 F.3d 376, 380 (5th Cir. 2003). The court must accept the party's uncontroverted allegations, so long as those allegations are not merely conclusory, and resolve all factual conflicts in favor of the party seeking to invoke the court's jurisdiction. Id.
A motion to dismiss under Federal Rule Civil of Procedure 12(b)(6) challenges the legal sufficiency of a complaint and raises an issue of law. In order to give a defendant fair notice of a claim, a plaintiff is required to plead a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R Civ. P. 8(a)(2). The Fifth Circuit has held that complaints "must contain either direct allegations on every material point necessary to sustain a recovery . . . or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial." Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995). When reviewing a motion to dismiss under Rule 12(b)(6), the court "accepts all well pleaded facts as true, viewing them in light most favorable to the plaintiff." Guidry v. Am. Pub. Life Ins. Co., 512 F.3d 177, 180 (5th Cir. 2007). "Factual allegations must be [substantial] enough to raise a right to relief above the speculative level, on assumption that all allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555, 127 S. Ct. 1955, 167 L. Ed.2d. 929. The Fifth Circuit summarizes its standard for dismissal under Rule 12(b)(6) as follows: "viewing the facts as pled in the light most favorable to the nonmovant, a motion to dismiss or for a judgment on the pleadings should not be granted if a complaint provides enough facts to state a claim to relief that is plausible on its face." Jebaco, Inc. v. Harrah's Operating Co., 587 F.3d 314, 318 (5th Cir. 2009).
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R. Civ P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 106 S. Ct 2548, 91 L.Ed.2d 265 (1986). An issue of material fact is genuine if a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty, 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In reviewing the evidence, this court must draw all reasonable inferences in favor of the nonmoving party, and avoid credibility determinations and weighing of the evidence. Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133,150, 120 S. Ct. 2097, 2110, 147 L.Ed.2d 105 (2000). In doing so, the court must disregard all evidence favorable to the moving party that the jury is not required to believe. Reeves, 530 U.S. at 151, 120 S.Ct at 2110.
Motion to Dismiss for Lack Subject Matter Jurisdiction Analysis:
Carlisle asserts that the Court has federal question jurisdiction under 28 U.S.C. § 1331 and civil rights jurisdiction under 28 U.S.C. § 1343 for a cause of action arising under the Fourth and Fourteenth Amendments. The action is brought under 42 U.S.C. § 1983. To state a claim under § 1983 a plaintiff must (1) allege he has been deprived of a right secured by the United States Constitution or the laws of the United States; and (2) demonstrate that the alleged violation was committed by a person acting under color of state law. Cornish v. Correctional Services Corp., 402 F.3d 545, 549 (5th Cir. 2005).
Carlisle asserts that his Fourth Amendment Rights were violated when DeSoto County adopted a policy allowing its officers to provide insufficient affidavits to judges issuing arrest warrants. It is alleged that these affidavits lacked factual details to support a finding of probable cause for the issuance of an arrest warrant.
Carlisle also claims that DeSoto County's refusal to consider non-financial bail options is a violation of his Fourteenth Amendment equal protection rights.
"Congress intend[ed] municipalities and other local government units to be included among those persons to whom § 1983 applies " Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978). To claim that DeSoto County is liable for a § 1983 violation, Carlisle must prove that the deprivation of his constitutional rights was inflicted pursuant to an official policy or custom established by the [local] county. Piotrowski v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2001). Official policy is normally found in promulgated policy statements, ordinances or regulations, but an official policy may also be evidenced by a custom. Id. A custom is "a persistent, widespread practice of [c]ity officials or employees, which, although not authorized by officially adopted . . . policy, is so common and well-settled as to constitute a custom that fairly represents municipal policy." Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984). In other words, "the unconstitutional conduct must be directly attributable to the municipality by some sort of official action; [however], [i]solated incidents of unconstitutional actions by municipal employees will almost never trigger municipal liability." Piotrowski, 237 F.3d at 578. The Supreme Court has held that county is liable under § 1983 for those actions of its sheriff that constitute county "policy". Monell, U.S. at 694. The Fifth Circuit has held that "]s[heriffs in Mississippi are final policymakers with respect to all law enforcement decisions made within their counties." Brooks v. George County, 84 F.3d 157, 165 (5th Cir. 1996). The Fifth Circuit's cases are clear that "[a] single decision may create municipal liability if that decision [is] made by a final policymaker responsible for that activity." Woodard v. Andrus, 419 F.3d 348, 352 (5th Cir. 2005); see also Jett v. Dallas Indep. Sch. Dist., 7 F.3d 1241, 1246 (5th Cir. 1993). Carlisle must also prove that the Sheriff's actions were more than mere negligence before a constitutional violation can be considered. Sanchez v. Swyden, 139 F.3d 464, 469 (5th Cir. 1998).
Motion to Dismiss For Failure to State a Claim Analysis of Fourth Amendment Violation:
The Fourth Amendment to the United States Constitution governs the right to be free from unjust arrest and detention. Albright v. Oliver, 510, U.S. 266, 274 (1994). The standard for arrest is probable cause, defined in terms of facts and circumstances "sufficient to warrant a prudent man in believing that the (suspect) had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91 (1964). An arrest warrant can only be constitutionally issued if there are specific facts present in the submitting officer's affidavit that demonstrate probable cause. Malley v. Briggs, 475 U.S. 335, 345 (1986). A "bare bones" affidavit stating little more than the accused committed the crime is insufficient. United States v. Brown, 941 F.2d 1300, 1303 (5th Cir. 1991).
Carlisle contends that neither of Detective Sanko's affidavits contained any specific facts that could justify the issuance of an arrest warrant, and therefore he was incarcerated in violation of his Fourth Amendment rights. DeSoto County asserts that all essential operative facts required for each element of grand larceny and burglary are provided in the sworn affidavits. Miss Code Ann. § 97-17-41 (1972) states in part that "(1) every person who shall be convicted of taking and carrying away, feloniously, the personal property of another, of the value of five hundred dollars ($500.00) or more, shall be guilty of grand larceny." The grand larceny affidavit does not provide any specific proof that Carlisle's actions satisfied these elements. The affidavit only restates the elements and inserts the name of the victim, location of the theft, and what was stolen. There are no facts offered to prove that Carlisle committed this crime or was apprehended in possession of the stolen object. The second affidavit charged Carlisle with the crime of burglary of a dwelling. Miss Code Ann. § 97-17-23 (1972) states in part that "(1) [e]very person who shall be convicted of breaking and entering the dwelling house or inner door of such dwelling house of another, whether armed with a deadly weapon or not, and whether there shall be at the time some human being in such dwelling house or not, with intent to commit some crime therein, shall be punished by commitment to the custody of the department of corrections for not less than (3) three years nor more than (25) twenty-five years." Miss. Code Ann. § 97-17-31 (1972) states in part, "[e]very building joined to, immediately connected with or being part dwelling house, shall be deemed the dwelling house." The affidavit states that Carlisle committed the elements of the burglary on an attached garage to the victim's dwelling, but it also provides no operative facts to prove such an assertion.
DeSoto County claims that even if the court finds the affidavits lacking, they are not liable for any constitutional violation because the chain of causation has been severed. The Fifth Circuit has held that when facts supporting an arrest are put forth to an intermediary, such as a municipal judge, the intermediary's decision to issue a warrant breaks the causal chain and insulates the initiating police officer from liability. Wheeler v. Cosden Oil, 744 F.2d 1131, 1132 (5th Cir. 1984). However, the U.S. Supreme Court held that it is reasonable to require the officer applying for a warrant to minimize the danger of issuing an unlawful warrant by exercising reasonable professional judgment. Malley v. Briggs, 475 U.S. 335, 346 (1986). "If no officer of reasonable competence would have requested [such a] warrant" it is an "unacceptable error indicating gross incompetence or neglect of duty." Id. at n. 9. In light of the error, the officer cannot "excuse his own fault by pointing to the greater incompetence of the magistrate". Id. Thus, it is plausible that Carlisle may prove that his Fourth Amendment rights were violated by DeSoto County; therefore, the Court denies DeSoto County's motion to dismiss for failure to state a claim in which relief can be granted.
Analysis of Fourteenth Amendment Violations:
The Fourteenth Amendment assures that one arrested for a crime be granted bail unless there is a compelling state interest for its denial. United States v. Salerno, 481 U.S. 739, 753-54 (1987). In Pugh v. Rainwater, a Fifth Circuit panel held that the State of Florida's revised procedures for pretrial bail were unconstitutional because they did not provide a presumption that indigent defendants were entitled to release without financial bail. 557 F.2d 1189, 1194 (5th Cir. 1977). On rehearing en banc, the Fifth Circuit held that there was no requirement that written procedures create a presumptive release without requiring financial bail for indigent defendants. Pugh v. Rainwater, 572 F.2d 1053, 1056 (5th Cir. 1978) (en banc). The en banc court found Florida's revised bail procedures constitutional because the rules mandated all relevant factors be considered in determining "what form of release is necessary to assure the defendant's appearance." Id. The Fifth Circuit maintained that incarceration of those who cannot make monetary bail, without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements. Id.
In 1971, when this action was instituted, the Florida Rules of Criminal Procedure contained no provision to guide the judge in setting bail. In December 1972, the Florida Supreme Court adopted a comprehensive revision of its Rules of Criminal Procedure. The 1972 revision stated the purpose of bail is to insure the defendant's appearance at trial. The judge shall, therefore, at the defendant's first appearance, consider all available relevant factors to determine whether bail is necessary to assure the defendant's appearance and, if so, the amount of bail.
DeSoto County notes that in Smith v. City of Tupelo, MS the trial court held that when a justice court sets a reasonable bond amount it eliminates a plaintiff's liberty interest claim and meets its constitutional requirements. No. 1:05CV266-D-D, 2007 WL 2071811, at *7 (N.D. Miss. July 19, 2007). The Fifth Circuit has not adopted this as the standard of review concerning the constitutional requirements for setting bail. On appeal the Fifth Circuit affirmed summary judgment against Smith's liberty interest claim, but not for the reasons set forth by the trial court. Smith v. City of Tupelo, 281 Fed.App'x 279, 283 (5th Cir. 2008). The Fifth Circuit affirmed on the grounds of mootness. Id. The Fifth Circuit reviews the constitutional requirements of bail under Pugh, which states that the judge must consider all possible factors and forms of bail necessary to reasonably assure the appearance of the defendant. Pugh, 557 F.2d at 1201. "[P]rotection standards are not satisfied unless judge is required to consider less financially onerous forms of release before he imposes money bail." Id. Stated more plainly, the right to equal protection requires the court to consider all factors when setting bail, and requires that an indigent, whose appearance at trial could reasonably be assured by one of the alternate forms of release, not suffer pretrial confinement because of his inability to post monetary bail. Pugh, 281 Fed.App'x at 283; see also 16B C.J.S. Constitutional Law § 1160 (2010).
According to Carlisle's complaint, no consideration was given to a non-financial bail option. Following Fifth Circuit precedent and viewing all evidence in the light most favorable to the plaintiff, it is possible that Carlisle's Fourteenth Amendment right to equal protection was violated due to DeSoto County's failure to consider non-monetary bail options. DeSoto County's motion to dismiss for a failure to state a claim for which relief cannot be granted is denied.
Plaintiff's Motion To Strike Defendant's Request for Summary Judgment
Carlisle sets forth three grounds supporting his motion to strike DeSoto County's request for summary judgment:
(1) DeSoto County did not request summary judgment until it filed its Reply Brief, in violation of the local rules.
(2) The attachments to the Reply Brief seeking summary judgment were not authenticated.
(3) Federal Rule of Civil Procedure 56(f) prohibits summary judgment until after adequate time for discovery has elapsed.
Rule 56(f) states that: "[i]f a party opposing the [summary judgment] motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) deny the motion; (2) order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or issue any other just order." Fed.R.Civ.Pro. 56(f). DeSoto County's response maintains that summary judgment is appropriate because the facts submitted into the record are dispositive under controlling authority. Further, it argues Rule 56(f) is inapplicable because Carlisle has not demonstrated what discovery is necessary.
"[S]ummary judgment is [only] proper after adequate time for discovery [has elapsed]". Celotex, 477 U.S. at 322-23, 106 S. Ct. at 2552-53; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (Likewise, the Fifth Circuit has held that Rule 56 prohibits summary judgment until after adequate time for discovery.) Carlisle has failed to properly present the required affidavit. However, justice requires that parties be given an opportunity to develop legitimately raised claims. As such, the court will deny without prejudice the motion for summary judgment at this time.
Conclusion
DeSoto County's motion [5] to dismiss, or in the alternative, for summary judgment, is denied without prejudice. Plaintiff's motion [10] to strike Defendant's request for summary judgment is denied.
This the 30th day of September, 2010.
nd Goldsmith on November 22, 2006 focused on the dysfunctionality of the OMS resident program with respect to "power struggles," pitting education interest against clinical service, residents' bad attitudes, and using residents as pawns, among other things. 56.1 Statement ¶ 63, Ex. S; 56.1 Response, Ex. 2 (Geldzahler Dep. at 134:14-135:17). Dr. Geldzahler testified that he did not remember this meeting, and therefore, could not say whether he brought up the issue of patient or public safety. 56.1 Response, Ex. 2 (Geldzahler Dep. at 134:14-134:20).
In December 2006, Dr. Geldzahler wrote to Dr. Rosa Martinez, Chief of Dental Service at WMC, about his contentious relationship with Dr. Morales, the "constant battle and frustration" at MET, the continual pressure from Dr. Morales to increase his work hours at MET and reduce his work hours at WMC, and how these factors influenced him to consider resigning as OMS Program Director at NYMC. 56.1 Statement ¶ 64, Ex. T. In that same month, he resigned based on certain conditions, but when the conditions could not be met, he withdrew his resignation. 56.1 Statement, Ex. V. At around the same time, Dr. Morales drafted a list of 28 problems with Dr. Geldzahler's performance as the OMS residency Program Director, which included issues such as (1) not maintaining complete, organized, and centralized program records including all residents' patient care activity data as required by the ADA; (2) overly focusing on certain categories of OMS procedures where he can privately bill cases and limiting focus on other required categories of procedures; (3) disregarding certain clinic obligations of the OMS service and patient needs in MET's ambulatory walk-in area; (4) failing to demonstrate and maintain an ongoing and systematic outcome assessment
program; (5) minimizing or overlooking unprofessional resident behavior; and (6) arriving late and leaving early on numerous occasions. 56.1 Statement ¶ 75, Ex. D ¶ 37; 56.1 Response, Ex. 7. Dr. Geldzahler disputes that any of the items on this list were actually problems. 56.1 Response ¶ 75, Exs. 2 (Geldzahler Dep. at 240:25-241:3) 8.
After Dr. Geldzahler ended up not resigning, he and Dr. Morales continued to argue over the OMS residency program curriculum in January and February 2007. As of January 22, 2007, Dr. Geldzahler declared that he was restructuring the OMS residency program's curriculum and service schedules for WMC and MET, a proposal that Dr. Morales opposed. 56.1 Statement, Ex. V; 56.1 Response ¶ 69. In January or February of 2007, Dr. Geldzahler told Dr. Morales that changes had to be made to the OMS residency program or he would report the deficiencies to CODA; in particular, Dr. Geldzahler wanted first-year residents in the operating room starting March 1, 2007. 56.1 Statement ¶¶ 69 70, Exs. B (Geldzahler Dep. at 92:24-96:14) W; Geldzahler Decl. ¶ 85; 56.1 Response, Ex. 2 (Geldzahler Dep. at 101:14-102:5). Dr. Morales responded to this program change by stating that Dr. Gelzahler did not seem to have any goals or objectives for the resident clinical assignment. 56.1 Statement, Ex. W.
At a meeting on February 26, 2007, Dr. Morales informed Dr. Geldzahler that if he would not resign, then he would be terminated, effective April 1, 2007. 56.1 Statement ¶ 76, Ex. D (Morales Decl. ¶¶ 38-39).
Dr. Geldzahler made his first formal complaint to CODA on March 1, 2007. 56.1 Statement ¶ 78, Exs. B (Geldzahler Dep. at 25:2-25:4) X. In his complaint, Dr. Geldzahler cited practices at MET that he alleged were in violation of certain CODA Standards. 56.1 Statement, Ex. X. To support his claim, Dr. Geldzahler stated in the letter that "Dr. Morales is constantly walking the clinic floor and pushing the residents to increase numbers of patient visits" and that "[h]e continually posts O.R. statistics for residents to review, which indicates an interest in the quantity of cases and not the quality." In addition, Dr. Geldzahler also wrote that "[b]ecause the residents are driven so hard to increase production numbers, they have little time to spend with attendings. . . . The senior attendings, who spend the largest blocks of time at Metropolitan Hospital, have complained bitterly to me about the deterioration of conditions at that institution." 56.1 Statement ¶ 79, Ex. B (Geldzahler Dep. at 31:10-33:6).
On March 19, 2007, Dr. Morales sent Dr. Geldzahler a letter stating that, consistent with their conversation on February 26, 2007, he was terminated as the Program Director of the OMS residency program, effective April 1, 2007. 56.1 Statement ¶ 77, Exs. B (Geldzahler Dep. at 99:3-100:12) E.
On March 26, 2007, CODA advised NYMC by letter of a formal complaint concerning the OMS Residency Program. 56.1 Statement ¶ 85, Ex. Z. CODA will also notify programs by phone about a complaint that has been filed against it before the program receives the letter in the mail. 56.1 Response, Ex. 3 (Goldsmith Dep. at 225:16-228:14). Here, CODA called Dr. Goldsmith before he received the written notice, but he was not told very much except that the complaint concerned orthognathics. Id. (Goldsmith Dep. at 228:15-229:15).
Following his termination as Program Director, Dr. Geldzahler continued to act as Chief of OMS at WMC and maintained privileges to practice dental medicine at MET and WMC, where he remained as a voluntary faculty member with NYMC. 56.1 Statement, Ex. B (Geldzahler Dep. at 136:23-137:18). He was not paid a salary for these positions. 56.1 Statement ¶ 98, Ex. B (Geldzahler Dep. at 142:2-142:4, 172:6-173:2). Instead, he earned income through billing for services on his private cases at both facilities. 56.1 Statement ¶¶ 5 82; 56.1 Response, Ex. 2 (Geldzahler Dep. at 179:20-179:23).
Dr. Geldzahler chose not to renew his faculty teaching position at MET in June 2007. 56.1 Response, Ex. 2 (Geldzahler Dep. at 139:3-139:8).
On April 17, 2007, Dr. Geldzahler filed a second complaint with CODA about the legitimacy of NYMC's online resident evaluation system. 56.1 Statement ¶¶ 86-87, Ex. AA.
Dr. Geldzahler subsequently engaged the services of a lawyer to send a series of letters between March 30, 2007 and April 15, 2008 to various high-level personnel at NYMC and MET, including Dr. Morales, Waldemar Comas (NYMC's General Counsel), Jose Sanchez (Senior Vice President with the New York City Health and Hospitals Corporation, which owns and operates MET), Dr. Ralph O'Connell (Dean of NYMC), Dr. Richard McCarrick (Dean of NYMC), and Dr. Karl Adler (President and CEO of NYMC). Geldzahler Decl. ¶ 3, Ex. 2. In these letters, Dr. Geldzahler alleged that he was unlawfully terminated as the OMS resident program director, and in some of the letters, he alleged that his termination was a retaliatory discharge in violation of the New York Whistleblower Statutes. Id. The May 30, 2007 letter to Waldemar Comas, for example, stated that Dr. Geldzahler frequently warned Dr. Morales about the practice of pressuring residents to approve emergency or ambulatory surgical procedures for patients who did not need them. Id. Dr. Geldzahler alleged that Dr. Morales pushed this practice to improve MET's financial health.Id. The letters do not mention the lack of supervision by attendings of residents. Id.
On February 8, 2008, CODA sent a letter to NYMC regarding its investigation into Dr. Geldzahler's March, 2007 complaint. 56.1 Statement ¶ 88, Ex. BB. It notified NYMC of its resolution to grant the program the accreditation status of "approval with reporting requirements" to demonstrate NYMC's compliance with Standards 1-5, 2, and 4-7. Id.
The letter also added that NYMC's OMS program submitted falsified documentation relating to student/resident attendance at weekly conferences. Because this violated CODA's policy on integrity, CODA notified NYMC of its intent to withdraw the program's accreditation unless NMYC could demonstrate sufficient progress towards achieving compliance with CODA's "Principles of Integrity."
Dr. Jay Goldsmith, who had been the Associate Program Director of the OMS program and Chief of OMS at MET, was hired as Program Director of the OMS residency program in March 2008. 56.1 Statement ¶¶ 8 91, Ex. F (Goldsmith Dep. at 26:5-26:14, 58:12-58:22). Based on his experience with Dr. Geldzahler in preparing for a regular accreditation site visit by CODA on October 10, 2008, Dr. Goldsmith came to believe that Dr. Geldzahler was not acting in the best interest of the OMS residency program or its residents. 56.1 Statement ¶ 96, Ex. F (Goldsmith Dep. at 186:25-189:12, 186:1-186:24). Dr. Goldsmith had informed the faculty of the Department of Dental Medicine, which included Dr. Geldzahler, of the upcoming visit and requested that they send him orthognathic cases for CODA's inspection to determine compliance with ADA
According to the Mayo Clinic website, orthognathic surgery is a combination of jaw surgery and orthodontics. Mayo Clinic, "Jaw Surgery," http://www.mayoclinic.org/jaw-surgery/ (last visited Sept. 29, 2010).
certification standards. 56.1 Statement ¶ 92, Ex. F (Goldsmith Dep. at 158:10-159:6). On October 3, 2008, when Dr. Goldsmith asked Dr. Geldzahler for documentation of his orthognathic cases, Dr. Geldzahler responded by requesting that Waldemar Comas, NYMC's General Counsel, contact Dr. Geldzahler's attorney. 56.1 Statement ¶ 93, Ex. DD. Dr. Geldzahler stated that this was an attempt to get someone at NYMC to speak with his lawyer about his possible improper termination claim and had nothing to do with the orthognathic cases. 56.1 Response ¶ 93. Four days later, Dr. Geldzahler requested that Dr. Goldsmith remove his 20 private orthognathic cases from what would be provided for CODA's site visit. 56.1 Statement ¶ 94, Ex. EE. Dr. Geldzahler did not believe that these cases were compliant with CODA Standard 4-11, which states that a resident will be considered the resident surgeon only when the program has documented that he or she has played a significant role in the diagnosis, the pre-operative care, the operative procedure, the post-operative course, and any other patient follow-up. 56.1 Statement ¶ 95, Ex. FF. It was not until the day before, and the morning of, the CODA site visit, that Dr. Geldzahler advised Dr. Goldsmith as to which of his orthognathic cases were compliant with Standard 4-11 and how the other orthognathic cases could be brought into compliance. 56.1 Statement ¶ 95, Exs. FF GG.
On October 30, 2008, Dr. Goldsmith received a request from Dr. Morales to either recommend or not recommend existing OMS faculty members for reappointment as part of NYMC's two-year reappointment cycle. 56.1 Statement ¶ 97, Ex. HH. On November 3, 2008, Dr. Goldsmith recommended that Dr. Geldzahler not be reappointed to the faculty because, based on his experience in preparing for the CODA site visit, Dr. Goldsmith believed that Dr. Geldzahler was trying "to derail and to sabotage [the OMS residency] training program." 56.1 Statement ¶¶ 99-100, Ex. II; 56.1 Response, Ex. 3 (Goldsmith Dep. at 182:13-190:5, 246:16-247:18).
Dr. Geldzahler filed a third complaint with CODA on December 12, 2008, alleging that some of the orthognathic cases used by the NYMC OMS residency program during the October site visit were not compliant with CODA Standard 4-11, and, therefore, NYMC did not generate enough orthognathic surgery cases for its residents. 56.1 Statement ¶ 101, Ex. JJ. CODA informed Dr. Goldsmith that a third complaint had been filed, which he found to be "strikingly similar" to the concerns that Dr. Geldzahler had expressed before, though he had not been told by CODA or anyone else who filed the complaint. 56.1 Statement ¶¶ 102-103, Ex. F (Goldsmith Dep. at 231:2-233:23).
In January 2009, NYMC informed Dr. Geldzahler that his faculty appointment had not been renewed. 56.1 Statement ¶ 103, Ex. B (Geldzahler Dep. at 171:20-172:5). On February 13, 2009, Dr. Goldsmith directed Dr. Petti, the Associate Program Director and Site Director at WMC, to remove Dr. Geldzahler from all schedules that involved resident supervision or education. Geldzahler Decl. ¶ 7, Ex. 4. Dr. Geldzahler claims that his removal from all resident supervision or education destroyed his private OMS practice at WMC because residents could no longer assist him in operations, and he no longer had access to new patients. Geldzahler Decl. ¶ 7; 56.1 Response, Ex. 2 (Geldzahler Dep. at 178:8-179:19, 181:24-182:11).
On February 25, 2009, Dr. Geldzahler filed the instant action. 56.1 Statement ¶ 105, Ex. A.
III. DISCUSSION
The remaining causes of action in this case come under two provisions of New York's Whistleblower Statutes. Section 740 of New York's Labor Law, enacted in 1984, is the general Whistleblower Statute; it encompasses any employee who has suffered a retaliatory personnel action as a result of reporting or threatening to report an illegal activity by the employer which constitutes a "substantial and specific danger to the public health or safety." N.Y. Lab. Law § 740(2). In 2002, the New York State legislature enacted an additional Whistleblower Statute, which is codified as Section 741 of New York Labor Law, specifically intended to cover health care professionals. N.Y. Lab. Law § 741.
A. Summary Judgment Standard
Summary judgment is appropriate only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In deciding a summary judgment motion, the Court must construe the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in its favor.Niagara Mohawk Power Corp. v. Jones Chem. Inc., 315 F.3d 171, 175 (2d Cir. 2003) (citing Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 255 (1986)).
As Dr. Geldzahler is a pro se plaintiff, this Court will "read [his] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (citation omitted). Dr. Geldzahler's pro se status, however, does not relieve him from the usual requirements of summary judgment. Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003); Fitzpatrick v. New York Cornell Hosp., No. 00 Civ. 8594 (LAP), 2003 WL 102853, at *5 (S.D.N.Y. Jan. 9, 2003). Those requirements include the obligation not to rest upon mere conclusory allegations or demands, but instead to set forth "concrete particulars" showing that a trial is needed. R.G. Grp., Inc. v. Horn Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984).
B. The Claims Under Section 740 Are Either Time-Barred or Precluded Because Dr. Geldzahler Does Not Meet the Statutory Definition of an Employee
Dr. Geldzahler asserts that defendants took two different adverse actions against him. On April 1, 2007, he was terminated from his position as Program Director at NYMC. 56.1 Statement ¶ 4, Exs. B E. More than a year later, on November 3, 2008, his faculty appointment at NYMC was not renewed upon the recommendation of Dr. Goldsmith. 56.1 Statement ¶ 99, Exs. II F. As a result, Dr. Goldsmith directed Dr. Petti, the Associate Program Director and Site Director at WMC, to remove Dr. Geldzahler from all schedules that involved resident supervision or education by February 13, 2009. Geldzahler Decl. ¶ 7, Ex. 4.
Dr. Geldzahler's claim under Section 740 based on the April 1, 2007 termination is time-barred. The statute of limitations for bringing an action under Section 740 is "one year after the alleged retaliatory action was taken." N.Y. Lab. Law § 740(4)(a). Dr. Geldzahler filed the present action on February 25, 2009, more than a year after he was terminated as the Program Director of NYMC.
While the Section 740 claim vis-à-vis Dr. Geldzahler's faculty appointment is not time-barred, it is not cognizable because he was not an employee at the time his faculty appointment was not renewed. The statute only applies to an individual who works "under the control and direction of an employer for wages or other remuneration" as an employee. N.Y. Lab. Law § 740(1)(a) (emphasis added). Dr. Geldzahler's termination as the Program Director for NYMC meant that he was no longer a full-time salaried employee. 56.1 Statement ¶ 98, Ex. B (Geldzahler Dep. at 142:2-142:4, 172:6-173:2). He continued to teach at NYMC as a voluntary, non-salaried attending. Id. And while he still retained privileges to practice at WMC and MET (the latter of which he voluntarily declined to renew in June 2007), he only earned income through billing for services on his private cases at both facilities and not from NYMC. 56.1 Statement ¶¶ 5 82; 56.1 Response, Ex. 2 (Geldzahler Dep. at 179:20-179:23). He was therefore not an employee as defined by Section 740 when Defendants failed to renew his faculty position and removed him from all resident supervision and education. Rotwein v. Sunharbor Manor Residential Health Care Facility, 181 Misc. 2d 847, 851, 695 N.Y.S.2d 477, 481-82 (N.Y. Sup. Ct. 1999) (attending podiatrist who billed patients directly for services not considered employee under Section 740). For these reasons. Defendants' motion for summary judgment on Dr. Geldzahler's Section 740 claims is granted.
Magistrate Judge Peck rejected defendants' statute of limitations arguments in resolving the motion to dismiss. In doing so, however, he did not differentiate between the two adverse actions, focusing entirely on the second one (which did not occur until November, 2008). Geldzahler, 663 F. Supp. 2d at 390. Nothing in his decision precludes the finding that the challenge to the first personnel action, which took place in April, 2007, is time-barred. As to the decision not to renew Plaintiff's faculty appointment, Judge Peck does not address the statutory definition of "employee," or make any findings on that issue. Therefore, the law of the case doctrine (which is discretionary in any event) is not implicated here.
C. The Claims Under Section 741
Section 741 was enacted in 2002 as a Whistleblower Statute designed particularly for health care employees, but enforcement of a claim under Section 741 must be sought through Section 740(4)(d). N.Y. Lab. Law § 741(4). The protection afforded by Section 741 is as follows:
[N]o employer shall take retaliatory action against any employee because the employee does any of the following:
(a) discloses or threatens to disclose to a supervisor, or to a public body an activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care; or (b) objects to, or refuses to participate in an activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care.
N.Y. Lab. Law § 741(2). Though it has been eight years since it was enacted, there is little case law interpreting Section 741. To the extent that there is any jurisprudence that analyzes language that is similar in Section 740, we will refer to these cases for guidance. N.Y. Stat. § 222 cmt. ("It is a general rule of statutory construction that earlier statutes are properly considered as illuminating the intent of the Legislature in passing later acts, especially where there is doubts as to how the later act should be construed, since when enacting a statute the Legislature is presumed to act with deliberation and with knowledge of the existing statutes on the same subject.");Reddington v. Staten Island Univ. Hosp., 511 F.3d 126, 135 (2d Cir. 2007) (New York statutory construction rules require equivalent construction of terms in statutes on same subject matter).
1. The Section 741 Claim Is Dismissed as to Dr. Goldsmith Because Dr. Geldzahler Does Not Meet the Statutory Definition of an "Employee"
Like Section 740, Section 741 also offers protection to employees against retaliatory action by their employers. The definition of "employee" is slightly different between the two statutes. An "employee" under Section 741 is "any person who performs health care services for and under the control and direction of any public or private employer which provides health care services for wages or other remuneration." N.Y. Lab. Law § 741(1)(a) (emphasis added). As determined above, Dr. Geldzahler was no longer an employee after April 1, 2007 because he no longer received a salary from NYMC. Therefore, the Court will not consider any of the events which occurred after this date for purposes of Dr. Geldzahler's Section 741 claim. The adverse personnel actions for which Dr. Goldsmith is responsible include when, in his capacity as the new OMS Program Director, he declined to recommend Dr. Geldzahler for a faculty position at NYMC in November 2008 and directed Dr. Petti to remove Dr. Geldzahler from any resident supervision or education by February 2009. Accordingly, because they arise out of events occurring after Dr. Geldzahler was no longer an "employee" under Section 741, the remaining claim against Dr. Goldsmith must be dismissed.
Unlike the one year statute of limitations in Section 740, the statute of limitations for a claim under Section 741 runs for two years after the alleged retaliatory personnel action was taken. N.Y. Labor Law § 740(4)(d). Both adverse personnel actions taken by Defendants against Dr. Geldzahler fall within this time period.
2. The Section 741 Claim Is Dismissed as to Dr. Morales Because He Does Not Meet the Statutory Definition of an "Employer"
Section 741 defines an employer as any "partnership, association, corporation, the state, or any political subdivision of the state" that provides health care services. N.Y. Lab. Law § 741(1)(b). While this definition is clearly applicable to NYMC, it is not applicable to Dr. Morales.
The Court is aware of only one case that has interpreted the definition of "employer" under Section 741. In Sulieman v. Roswell Park Cancer Institute, the court concluded that the definition should be read to include individuals as well, contrary to the plain language of the statute. No. 05 CV 766S, 2008 WL 2690278, at *15 (W.D.N.Y. June 30, 2008) (citing N.Y. Lab. Law § 741(4)). The court observed that Section 741 specifically excludes individuals from the definition of an employer, but because enforcement of Section 741 claims must be sought under Section 740, it determined that the two statutory sections should be construed in tandem.
Section 740 states that "a health care employee who has been the subject of a retaliatory action by a health care employer in violation of section seven hundred forty-one of this article may institute a civil action in a court of competent jurisdiction for relief . . ." N.Y. Lab. Law § 740(4)(d). Section 740's definition of an "employer" includes a "person." Id. § 740(1)(b). The conflicting statutory definitions of "employer" led the Sulieman court to consider extrinsic material to determine the correct definition under Section 741. Sulieman, 2008 WL 2690278, at * 15 (citing N.Y. Stat. § 111; Reddington, 511 F.3d at 135 (New York statutory construction rules require equivalent construction of terms in statutes on same subject matter)).
Based on the legislative history of Section 741, the court concluded that the New York Legislature intended for Section 741 to "expand[] the definition of employer to include employer's agents" and to protect "against retaliation by employers or supervisors." Id. (citing N.Y. Legis. Serv. Governor's Bill Jacket, 2002 A.B. 9454, ch. 24; Memorandum to James M. McGuire, Counsel to the Governor, from Dennis P. Whalen, Executive Deputy Commissioner of New York Department of Health). As a result, theSulieman court held that the defendant doctor could be sued in his individual capacity under Section 741. Id. It concluded that the defendant doctor was an agent of the health care facility at which the plaintiff worked and was effectively the plaintiff's employer: as her supervisor, he had the power to hire, fire, and administer the funding of the plaintiff's fellowship program. Id.
The Court disagrees with the analysis in Sulieman regarding the definition of "employer." New York law requires statutes to be construed with reference to earlier statutes. N.Y. Stat. § 222. The Legislature presumably acted "with deliberation and with knowledge of the existing statutes on the same subject" and crafted Section 741 so that it would not be a carbon copy of Section 740. N.Y. Stat. § 222 cmt. Much of the language contained in Section 741 mirrors what is contained in Section 740; we must therefore assume that the differences between the two statutory provisions were deliberate. N.Y. Stat. § 230 cmt. ("It is fundamental that the words used should be given the meaning intended by the lawmakers, and words will not be expanded so as to enlarge their meaning to something which the Legislature could easily have expressed but did not."). The New York Court of Appeals, in determining the definition of the word "employee" under Section 741, noted that Section 741 had "an exactingly specific definition" of the word compared to Section 740.Reddington v. Staten Island Univ. Hosp., 11 N.Y.3d 80, 91, 893 N.E.2d 120, 127 (2008). As a result, the court held that "the universe of covered employees [under Section 741] must be smaller than all those . . . who are afforded the more generalized protection of Section 740." Id. Similarly, Section 741 has a more specific definition of "employer" than Section 740, and it is necessary to take that difference into account, notwithstanding the fact that Section 741 is enforced under Section 740.
The New York Court of Appeals decided Reddington one day after the decision in Sulieman was issued, so the Sulieman court did not have the benefit of the Court of Appeals' analysis.
Even if the legislative history provides that the statute "expands the definition of employer to include employer's agents," as the Sulieman court observed, the word
"agent" only appears in Section 741 to refer to the entity (the employer or the agent) whose activity, policy, or practice the employee reasonably believes constitutes improper quality of patient care. N.Y. Lab. Law § 741(2)(a) and (b) (retaliatory action prohibited if the employee discloses, threatens to disclose, objects to, or refuses to participate in "any activity, policy or practice of the employer or agent"). The clause prohibiting retaliatory action under Section 741, however, is directed only at the employer. N.Y. Lab. Law § 741(2) ("no employer shall take retaliatory action against any employee . . ."); see also N.Y. Stat. § 240 cmt. ("It is a universal principle in the interpretation of statutes that . . . the specific mention of one person or thing implies the exclusion of other persons or things."). Because the prohibition against retaliatory action in Section 741 is not directed at the employer's agents, Dr. Geldzahler's claim against Dr. Morales must be dismissed.
Even if there is individual liability under Section 741, the claim against Dr. Morales must still be dismissed based on the uncontroverted defense discussed in Section III.C.3 infra.
Nonetheless, NYMC may still be held liable under Section 741 for Dr. Morales' actions as Dr. Morales is clearly its agent. N.Y. Lab. Law § 741(c) ("`Agent' means any individual . . . acting on behalf of an employer."). We turn to the question of NYMC's liability below.
3. Summary Judgment Should Be Granted on the Section 741 Claim Against NYMC Based on Its Uncontroverted Defense That It Had Reasons Unrelated to Whistleblowing for Discharging Dr. Geldzahler
Section 741 provides the employer with a defense if "the personnel action was predicated upon grounds other than the employee's exercise of any rights protected by this section." N.Y. Lab. Law § 741(5). For example, in Luiso v. Northern Westchester Hosp. Center, the defendant obtained summary judgment dismissing a Section 741 claim because it was able to establish that the plaintiff had been transferred out of her management position in the operating room based on her work performance. 65 A.D.3d 1296, 886 N.Y.S.2d 216 (2d Dep't 2009). Similarly, the defendant inTimberlake v. New York Presbyterian Hospital prevailed on its motion for summary judgment on the plaintiff's 741 claim after offering "ample evidence" that the plaintiff's reprimand and termination were based on her insubordination and deficient performance. No. 05 Civ. 5616 (LAP), 2009 WL 3122580, at *6 (S.D.N.Y. Sept. 20, 2009).
In this case, there is no dispute in the record that the tense relationship between Dr. Geldzahler and his supervisor, Dr. Morales, was the reason that Dr. Morales chose to terminate Dr. Geldzahler from his position as program director and to remove him from his other positions. 56.1 Statement ¶ 72, Ex. D (Morales Decl. ¶ 38). Much of the tension stemmed from disagreements about the quality of education and training received by OMS residents.
Dr. Geldzahler contends that the disagreements and the resulting tension were caused by his complaining about the improper supervision of residents. However, the timing as to when he made his complaints and when he was terminated does not support an inference that his termination was a retaliatory action. In Dougherty v. Memorial Sloan-Kettering Cancer Center, No. 00 Civ. 4083 (JGK), 2002 WL 1610916, at *7-8 (S.D.N.Y. July 22, 2002), the court granted summary judgment and dismissed a Section 740 claim because there was no evidence of retaliation by the employer when the plaintiff had been making the same complaints for 21 years but had not been terminated until she made two serious errors within a month of her termination. Much like the plaintiff in Dougherty, Dr. Geldzahler testified that he had been complaining about the danger of unsupervised first-year residents to Dr. Morales since 2001, though his dismissal did not occur until 2007. Geldzahler Dep. at 81:12-82:23.
Moreover, by the time Dr. Geldzahler threatened to report his concerns to CODA and by the time Dr. Morales requested Dr. Geldzahler's resignation, there were already other significant disagreements contributing to the problems in their relationship that had been building over the years. It is undisputed that, in as early as 2001, there were strong differences in opinion between Dr. Geldzahler and Dr. Morales regarding whether first-year residents should be in the operating room, a disagreement which continued through February 2007. Geldzahler Dep. at 81:12-82:16; 56.1 Statement, Ex. W. From March 2005 to at least December 2006, the two doctors argued over how Dr. Geldzahler should divide his work schedule between MET and WMC and how he disciplined residents. 56.1 Statement ¶¶ 40-43, Exs. J-L T. A meeting about developing a business and strategic plan for the OMS residency program at MET between Dr. Geldzahler and Dr. Morales on October 17, 2006 resulted in conflict, which included disagreement over how residents' time should be structured. 56.1 Statement, Ex. P. On November 22, 2006, Dr. Morales, Dr. Geldzahler, and Dr. Goldsmith met to discuss different problems with the OMS residency program, one of which was the power struggles that pitted educational interest against clinical service. 56.1 Statement, Ex. S, Geldzahler Dep. at 134:14-135:17.
Dr. Morales had even discussed with Dr. Geldzahler the possibility of his either being terminated or resigning as Program Director before he was actually terminated. The evidence in the record demonstrates that the reasons for these discussions were disagreements about the OMS residency program curriculum, Dr. Geldzahler's work schedule, and the troubled relationship between Dr. Geldzahler and Dr. Morales. In discussing curriculum changes on October 23, 2006, for example, Dr. Morales told Dr. Geldzahler that he could be fired at will and without cause. 56.1 Statement, Ex. R. In December 2006, Dr. Geldzahler had resigned as Program Director based on certain conditions, but when they could not be fulfilled, he withdrew his resignation. 56.1 Statement, Ex. U. On December 13, 2006, Dr. Geldzahler confirmed in an email that he had wanted to resign because he and Dr. Morales got along like "oil and water," he experienced constant battling and frustration at MET, and he was continually pressured by Dr. Morales to increase his work hours at MET and reduce his work hours at WMC. 56.1 Statement, Ex. T.
Right before Dr. Morales asked for Dr. Geldzahler's resignation on February 26, 2007, there were arguments over the OMS residency program curriculum. Dr. Geldzahler declared on January 22, 2007 that he was restructuring the OMS residency program's curriculum and service schedules between WMC and MET, a proposal that Dr. Morales opposed. 56.1 Statement, Ex. V. Dr. Geldzahler then announced on February 1, 2007 that he wanted to have first-year OMS residents in the operating room, which prompted Dr. Morales to respond that Dr. Geldzahler did not seem to have any goals or objectives for the resident clinical assignment. 56.1 Statement, Ex. W.
By the time Dr. Geldzahler told Dr. Morales that either the OMS residency program had to change by March 1, 2007 or he would report alleged violations to CODA, it was January or February 2007. 56.1 Statement ¶¶ 69-70; Geldzahler Dep. at 92:24-96:14, 101:14-102:5. Dr. Geldzahler testified that he could not remember if he had raised patient or public safety issues at this meeting or the October 23 or November 22 meetings; at most, he testified, these issues were implied. Geldzahler Dep. at 92:24-96:14, 103:17-105:2, 123:17-124:12, 134:14-134:20. Dr. Morales informed Dr. Geldzahler on Feburary 26, 2007 that he would either have to resign or be terminated, effective April 1, 2007. 56.1 Statement ¶ 76, Ex. E.
The undisputed evidence shows that Dr. Morales' decision to terminate Dr. Geldzahler involved their inability to get along and disagreements about resident education. Dr. Geldzahler had complained about the danger to patients and public safety due to unsupervised OMS residents for years without adverse consequences. Therefore, his termination cannot be considered a retaliatory action protected by Section 741. Granting summary judgment on Dr. Geldzahler's Section 741 claim as against NYMC is therefore appropriate.
IV. CONCLUSION
For the foregoing reasons, Defendants' motion for summary judgment (Doc. No. 31) is GRANTED. The Clerk of the Court is directed to enter judgment for Defendants and close this case.
SO ORDERED.