666 F.2d 761 (2nd Cir. 1981), 505, Doe v. New York University

Docket Nº:505, Docket 81-7680.
Citation:666 F.2d 761
Party Name:Jane DOE, Plaintiff-Appellee, v. NEW YORK UNIVERSITY: John Sawhill, individually and as President of New York University; Ivan Bennett, M.D., individually and as Dean of New York University School of Medicine; Jacobus Potter, individually and as Associate Dean of New York University School of Medicine; David S. Scotch, individually and as Dean of S
Case Date:November 24, 1981
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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666 F.2d 761 (2nd Cir. 1981)

Jane DOE, Plaintiff-Appellee,


NEW YORK UNIVERSITY: John Sawhill, individually and as

President of New York University; Ivan Bennett, M.D.,

individually and as Dean of New York University School of

Medicine; Jacobus Potter, individually and as Associate Dean

of New York University School of Medicine; David S. Scotch,

individually and as Dean of Students of New York University

School of Medicine, Defendants-Appellants.

No. 505, Docket 81-7680.

United States Court of Appeals, Second Circuit

November 24, 1981

Argued Oct. 26, 1981.

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S. Andrew Schaffer, New York City (Robert P. Walton, Ada Meloy, Annette B. Johnson, New York City, of counsel), for defendants-appellants.

Robert M. Levy, New York City (Christopher A. Hansen, Diana T. Tanaka, New York Civil Liberties Union, New York City, of counsel), for plaintiff-appellee.

Gerald Bodner, New York City, for amicus curiae Albert Einstein College of Medicine of Yeshiva University.

Before FEINBERG, Chief Judge, and MANSFIELD and NEWMAN, Circuit Judges.

MANSFIELD, Circuit Judge:

In this action under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, which prohibits a recipient of federal financial assistance from denying benefits to an "otherwise qualified" handicapped person solely because of his or her handicap, defendants, New York University and certain of its administrators (collectively referred to herein as NYU), appeal from an order of the Southern District of New York entered by Judge Gerard L. Goettel granting plaintiff Jane Doe preliminary injunctive relief directing NYU Medical School to readmit her as a first-year medical student and denying defendants' motion for summary judgment dismissing her complaint. We reverse the grant of preliminary injunctive relief and affirm the denial of NYU's motion for summary judgment.

Since the district court based its decision solely on a written record (consisting principally of affidavits, reports and medical records), without any evidentiary hearing, we are not limited, in determining whether preliminary injunctive relief was properly granted, to review of its exercise of discretion but may consider the record de novo, being "in as good a position as the district judge to read and interpret the pleadings, affidavits and depositions," Jack Kahn Music Co., Inc. v. Baldwin Piano & Organ Co., 604 F.2d 755, 758 (2d Cir. 1979) (quoting Dopp v. Franklin National Bank, 461 F.2d 873, 879 (2d Cir. 1972)). Preliminary injunctive relief ordinarily "should not be resolved on the basis of affidavits which evince disputed issues of fact," the proper course being first to resolve credibility issues through an evidentiary hearing, Forts v. Ward, 566 F.2d 849, 851-52 (2d Cir. 1977): Dopp v. Franklin National Bank, supra, 461 F.2d at 879, unless the facts admitted by the defendant would plainly entitle the plaintiff to such relief. In light of these principles, which apply with greater force where mandatory relief changing the status quo has been granted, we summarize the pertinent record facts.

Each year approximately 5,000 persons apply for admission as medical students to NYU Medical School, of whom those found best qualified by the Admissions Committee, some 170, are accepted. In 1975 Jane Doe was accepted after falsely representing

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in her application that she did not have any chronic or recurrent illnesses or emotional problems. In fact she, while gifted academically, had suffered for many years from serious psychiatric and mental disorders, which evidenced themselves in the form of numerous self-destructive acts and attacks upon others, followed by periodic treatments by psychologists and psychiatrists and admissions to various psychiatric hospitals for care and therapy. In the third grade she had trouble with her teacher, requiring the help of a psychologist and psychiatrist. In 1963, at 14 years of age, she tore up a report card and took five Doriden tablets (sleeping pills) in anger at her parents. Beginning in November, 1963, she was treated by a psychiatrist on 24 weekly visits. Despite her doctor's recommendation that she submit to at least several more months of therapy she terminated this treatment in June, 1964.

There is no evidence of further symptoms of psychiatric difficulties on Doe's part until November, 1972, when at the age of 23 she became upset by an interview she had had at the University of San Francisco Medical School and attempted suicide by drinking potassium cyanide. Over her resistance she was taken to the Stanford University Hospital emergency room. There she threatened to kill herself and had to be strapped to a stretcher. She was then moved to Santa Clara Valley Medical Center (Valley), where she stayed for 21/2 days. In January, 1973, she injected herself with cytosine arabinoside, a drug for treatment of cancer which attacks certain cells and renders them susceptible to infection. In March, 1973, she carved a hole in her stomach with a kitchen knife, using a local anesthetic stolen from a laboratory. Later in the month, after a counsellor at school asked her to accept inpatient treatment at Langley Porter Neuropsychiatric Institute, she severed an artery in her elbow with a razor blade. She was then admitted to Langley Porter, where she stayed for eight days. During her stay there she broke a light bulb, scratched her wrists, attacked a doctor, tore his nameplate off his door, and left against medical advice.

In July, 1973, after seeing her psychiatrist, Dr. David N. Daniels, Doe cut a vein in her left arm, losing a litre of blood which necessitated a transfusion and was admitted to Valley where she stayed six days. During her stay there she tried to leave, pulled sutures out of her wound, wrote in her blood on the wall, took charts from a nursing station, bit a staff member in the arm, and departed against medical advice. In October, 1973, after a visit to Dr. Daniels, she used a razor blade to cut her foot, resisted police custody and was admitted against her will to Valley for a 14-day stay. In the hospital she attacked a woman doctor, scratching her in the forearm and kicking her in the pelvis. In January, 1974, she cut herself again and was admitted to the Cowell Student Health Service at Stanford University. In March, 1974, she cut her left elbow, tried to seize her health records, kicked a doctor in the groin and tried to break a window, following which she was taken to the Stanford Hospital where she falsified her identity, claiming to be "Marita S. Williams." This was followed by more instances in which she cut herself and was admitted to hospitals for short periods.

In May, 1974, Doe became angry when her psychiatrist, Dr. Daniels, did not see her immediately upon her arrival at his office, and proceeded to cut her arm and smear blood on the wall of his waiting room. After the doctor finished with the patient he had been seeing and observed Doe in the waiting room, she attacked him, first biting him on the wrist and attempting to kick him in the groin, and then charging at him with a pair of scissors in an apparent effort to stab him. The doctor escaped to his inner office, locking his door. Doe left, only to return shortly thereafter and stand outside the doctor's window with a syringe, filled with a cyanide solution, that she had jabbed into her arm. The doctor called the police, who took her into custody. Doe was subsequently taken to Valley again, where she fought with staff members. In spite of a recommendation that she stay in the hospital for 90 days of treatment, she escaped through a window with the help of her husband six days after being admitted.

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In July, 1974, Doe applied to five medical schools through the American Colleges Admissions System, falsely representing that she did not then have and had not had any chronic or recurrent illnesses or emotional problems. In December, 1974, she applied to NYU Medical School, answering "NO" to the question, "Do you have any chronic or recurrent illnesses, emotional problems, or bodily defects?" Her application was accepted in April of 1975, on the understanding she would become a student in September of that year. In the meantime, in January, 1975, while still in California, Doe cut herself in the waiting room of another psychiatrist, Dr. Charles W. Casella, who was scheduled to see her. When she lost a large amount of blood she was admitted to Kaiser Permanente Medical Center where she remained five days despite a recommendation that she stay for an indefinite period.

After starting at NYU Medical School in September, Doe was required as a matriculating student to undergo a medical examination early that month but delayed doing so until October 30, 1975. When the doctor who examined her, Dr. Michael Ruoff, noticed scars on Doe's arm, and inquired as to their cause she for the first time informed the University of some of her history of psychiatric problems. Dr. Ruoff recommended that Doe undergo a psychiatric examination to determine whether she was fit to stay at the school. Her reply was, "It is my body and what I do to it is my concern. If I want to go out and f a cat I can." She then walked out without completing the examination.

Shortly thereafter Doe met with Dr. David S. Scotch, Associate Dean of NYU Medical School, and agreed to be examined by a Student Health Service psychiatrist, Dr. Marvin Stern. In an interview with Dr. Stern on November 3, 1975, she gave a more detailed history of her psychiatric problems. Dr. Stern reached the conclusion that Doe had a "fragile personality" and sent her to Dr. Emmanuel Fisher for psychological tests. Doe underwent testing by Fisher on November 5, 1975. On the basis of these tests and his interview of...

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