Aiken v. Nixon, 1:01-CV-73.
| Decision Date | 30 September 2002 |
| Docket Number | No. 1:01-CV-73.,1:01-CV-73. |
| Citation | 236 F.Supp.2d 211 |
| Parties | William AIKEN; and Disability Advocates, Inc. on behalf of all present and future patients of the Capital District Psychiatric Center who are subject to unlawful strip searches and body cavity searches, Plaintiffs, v. Jesse NIXON Jr., in his official capacity as Director of the Capital District Psychiatric Center and individually; Capital District Psychiatric Center, a public entity; and Gail Bellinger-Alleman, Thomas Deseve, Jay Edmond Harper, Richard Monte, Jo DiBlasio and Jeff Glebba, in their official capacities and individually, and Kathleen Cavanaugh, individually, Defendants. |
| Court | U.S. District Court — Northern District of New York |
Eliot Spitzer, Attorney General of the State of New York, Albany, NY (Nelson R. Sheingold, Esq., Assistant Attorney General, of counsel), for Defendants.
This is an action brought pursuant to Title II of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12101, et seq.; § 504 of the Rehabilitation Act of 1973 (the "Rehabilitation Act" or "§ 504"), 29 U.S.C. § 794, et seq.; 42 U.S.C. § 1983 ("§ 1983") asserting deprivations of rights secured by the Fourth and Fourteenth Amendments to the United States Constitution; and the New York State common law asserting tort claims sounding in "assault and battery" and negligence.
Defendants move pursuant to FED. R. CIV. PRO. 12(b)(6) to dismiss plaintiffs' claims under the ADA, the Rehabilitation Act, plaintiffs' claims for injunctive relief, and the § 1983 claims and pendent state law claims against defendants Nixon, Glebba, DiBlasio, and Cavanaugh. For the reasons that follow, the motion is granted in part and denied in part.
The case surrounds the search policy of the Capital District Psychiatric Center ("CDPC") in Albany and the application of that policy when patients are voluntarily admitted there. As addressed more fully below, plaintiff William Aiken ("Aiken") alleges that on January 19, 2000 he was illegally strip searched and body cavity searched upon his voluntary admission to CDPC. Aiken serves as the representative plaintiff for the association claims brought by Disability Advocates, Inc. on behalf of all present and future patients of the Capital District Psychiatric Center who may be subjected to the challenged searches, Second Amended Complaint ("complaint" or "compl.") ¶ 12,1 and who challenge the legality of the policy.
The complaint alleges that in October of 1998, Defendant Kathleen Cavanaugh, then-CDPC Program Director and Supervisor of the crisis nursing staff, placed a "standing order" on Aiken's clinical record at CDPC which ordered staff in the crisis unit of CDPC to carefully search Aiken whenever he appeared for admission. Compl. ¶¶ 32-33. Plaintiffs contend that Cavanaugh lacked probable cause to issue this standing order and that it was issued in violation of CDPC's search policy. Compl. ¶¶ 36-40.
On January 19, 2000 Aiken sought voluntary admission for emergency psychiatric care and treatment at CDPC's crisis unit. Compl. ¶¶ 43, 49. He was strip searched and visual body cavity searched by defendants DeSeve, Harper, and Monte in a bathroom, allegedly pursuant to the direct order of defendant Bellinger-Alleman. Compl. ¶¶ 51-57. Plaintiffs allege that Aiken's search was unreasonable in scope and without probable cause or a warrant, and therefore in violation of his constitutional rights. Compl. ¶ 105.
Many of the defendants' arguments turn on whether this search occurred in accordance with — or in contravention to — the CDPC policy in issue. Plaintiffs contend that "plaintiff Aiken and other CDPC patients" were "searched pursuant to the illegal policy." Compl. ¶ 104. However, the complaint also alleges that Aiken's January 19, 2000 search deviated in certain material respects from the requirements of the policy. See Compl. ¶¶ 51-57, 65-75.2 As addressed more fully below, plaintiffs seem to argue that this search was conducted pursuant to the authority of the policy (which they assert is itself unconstitutional), and further that the manner of search (the deviations from the policy) compounded Aiken's injury.
With regard to the policy, plaintiffs contend that CDPC's written policy authorizes unconstitutional strip searches, visual body cavity searches, and internal body cavity searches because these searches are allowed if there is merely a "potential risk" or "reasonable possibility" that the admittee possesses contraband or an item restricted by the treatment team, but does not require a finding of probable cause or a judicial warrant. Compl. ¶¶ 88-105. Plaintiffs also allege that the CDPC policy violates the ADA and Rehabilitation Act. Compl. ¶¶ 120-127.
Inasmuch as CDPC's search policy is repeatedly referenced in the complaint and integral to a determination of the instant motion, pertinent portions of that policy are recited here. See Yak v. Bank Brussels Lambert, 252 F.3d 127, 130 (2d Cir. 2001)(On a motion to dismiss, the court may consider "any written instrument attached to [the complaint] as an exhibit or any statements or documents incorporated in it by reference.") (citation omitted).
Regarding the decision to institute a search, the policy provides as follows:
It is recognized that CDPC staff have responsibility for making clinical decisions in accordance with their expertise and delegated responsibility. The decision to search a patient is authorized when the basis for this decision is clinical. Staff shall at all times attempt to balance issues concerning the clinical appropriateness or necessity of action vs. legal aspects of patients' rights. However, the most important consideration is the ability to provide services in a safe and secure environment.
The decision to search a patient ... is based upon a determination that there exists potential risk and/or reasonable possibility that the patient possesses an item restricted by his or her treatment team, an item considered to be contraband by local, state, or federal law, or an item that is stolen.
Search Policy, part II, p. 1 (emphasis added).
The policy is divided in to "emergency" and "non-emergency" situations and indicates that the "senior clinical staff member on duty" shall make the determination whether an emergency situation exists. Assuming one does, the senior clinical staff member on duty shall be responsible: "for taking appropriate action to insure the safety of other patients;" for making a decision regarding the ability of "program staff to handle the situation without assistance" from the Safety Office; and for making decisions "concerning the level and degree of search as well as the appropriate place to conduct the search." Search Policy, p. 3, ¶ 1. In conducting a search in an emergency situation, the staff is to inform the patient of the reason for conducting the search and seek the patient's permission if possible. Id., p. 3, ¶ 2. The staff must also insure that two staff members are present with at least one being of the same sex as the person being searched with the "staff member of the same sex ... responsible for conducting the actual search." Id., p. 3, ¶ 2.
Searches in non-emergency situations proceed in essentially the same fashion with the exception that the non-emergency search needs to be authorized by the "Program Director or designee." Id., p. 4, ¶¶ 1-3. The policy applies to individuals being screened by the Crisis Intervention Program and, in accordance with the policy, the Crisis staff has initiate guidelines for searches of these patients. These guidelines do not deviate in material respect from the general policy.
The policy delineates that "the typical and routine search" for both emergency and non-emergency situations involves having a patient empty his or her pockets and packages, with staff then examining the patient's clothing to "ensure noting is concealed within the clothing." Search Policy, p. 3, ¶ 4(a). The policy further provides that "[o]n occasion, based on clinical judgment, a patient will be asked to submit to a metal detector search" to be conducted by a Safety Officer. Id. at ¶ 4(b).
Still further, the policy provides that:
[o]n rare occasion, based on clinical judgement, a patient will be asked to submit to a body search and to disrobe down to their undergarments for the search. The Program Director, or Administrator on Call after hours, must give permission for a strip search. Upon reasonable belief and to prevent serious harm to themselves, a body cavity search may be instituted with the permission of the Program Director, Administrator on Call after hours. Strip searches and body cavity searches may only be conducted by or under the supervision of a physician (resident physician after hours). The presence of at least one same sex staff member during a strip or body cavity search is essential.
Id. ¶ 4(c)(emphasis added).
The policy indicates that "items obtained in a search that were confiscated because they are restricted by the patient's treatment team should be held by the facility until such time as the patient is discharged ...." Id., p. 2, § III(A). "Items that are confiscated because they are contraband ... and items that are stolen, but their ownership cannot be determined, shall be turned into the Safety Office." Id. The complaint alleges that the Safety Officers are peace officers under New York Law and, therefore, this provision of the policy "permits searches for law enforcement purposes." Compl. ¶ 98. However, there is no allegation of any criminal prosecution arising from any search conducted in accordance with this policy.
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