Beechwood Restorative Care Ctr. v. Leeds

• Court: U.S. District Court — Western District of New York
• Writing for the Court: DAVID G. LARIMER
• Citation: Beechwood Restorative Care Ctr. v. Leeds, 811 F.Supp.2d 667 (W.D. N.Y. 2011)
• Decision Date: 12 September 2011
• Docket Number: No. 02–CV–6235L.,02–CV–6235L.
• Parties: BEECHWOOD RESTORATIVE CARE CENTER, Brook Chambery, Olive Chambery, Plaintiffs, v. Laura E. LEEDS, Edmund Russell Altone, Robert W. Barnett, Anna D. Colello, Arlene L. Gray, Henry M. Greenberg, Antonio C. Novello, Steven B. Steinhardt, Dennis P. Whalen, Sanford Rubin, Susan T. Baker, Sharon A. Carlo, Cynthia T. Francis, Mary Elizabeth Rich, Barbara W. Saner, Defendants.

811 F.Supp.2d 667

BEECHWOOD RESTORATIVE CARE CENTER, Brook Chambery, Olive Chambery, Plaintiffs,

v.Laura E. LEEDS, Edmund Russell Altone, Robert W. Barnett, Anna D. Colello, Arlene L. Gray, Henry M. Greenberg, Antonio C. Novello, Steven B. Steinhardt, Dennis P. Whalen, Sanford Rubin, Susan T. Baker, Sharon A. Carlo, Cynthia T. Francis, Mary Elizabeth Rich, Barbara W. Saner, Defendants.

No. 02–CV–6235L.

United States District Court, W.D. New York.

Sept. 12, 2011.

David Rothenberg, Geiger and Rothenberg, LLP, Kevin S. Cooman, Paul Garrett Barden, Peter J. Weishaar, McConville Considine Cooman & Morin, PC, Rochester, NY, for Plaintiffs.

Gary M. Levine, New York State Office of the Attorney General, Rochester, NY, for Defendants.

DECISION AND ORDER

DAVID G. LARIMER, District Judge.

INTRODUCTION

This long-running case has its origins in a series of disputes between plaintiff Brook Chambery (“Chambery”) and state and federal regulatory authorities over the operation of Beechwood Restorative Care Center (“Beechwood”), a nursing home owned by Chambery and his mother Olive Chambery (collectively “the Chamberys”) in Rochester, New York. Those disputes, and the matters underlying those disputes, eventually led to Beechwood losing its state-issued operating certificate and closing in 1999.

In this action, which was commenced in 2002, the Chamberys and Beechwood brought various civil rights claims against seventeen state and two federal defendants, who were employed by the New York State Department of Health (“DOH”) and the federal Health Care Financing Administration (“HCFA”) respectively. Plaintiffs alleged, in short, that defendants had targeted Beechwood for closure in retaliation for Chambery's many complaints, protests, and lawsuits over the years, in which he challenged regulatory policies and practices that he considered wrongheaded, foolish, or unreasonable. Plaintiffs have alleged that defendants subjected Beechwood to continual nitpicking inspections and surveys, which they used to generate fodder for trumped-up allegations of deficiencies, which in turn provided the basis for the state's revocation of Beechwood's operating certificate.

While the full procedural history of this case would take several pages to recite, much of that history has been set forth in other decisions of this Court and of the Court of Appeals for the Second Circuit, familiarity with which is assumed. See 436 F.3d 147 (2d Cir.2006); 494 F.Supp.2d 181 (W.D.N.Y.2007); 317 F.Supp.2d 248 (W.D.N.Y.2004). The full history of this litigation will therefore not be repeated here, and a short summary will suffice.

In 2004 this Court granted summary judgment for defendants, dismissing all of plaintiffs' claims. In 2006, the Court of Appeals for the Second Circuit affirmed in part and vacated and remanded in part this Court's decision. 436 F.3d 147. The court affirmed my dismissal of all of plaintiffs' claims, except for one: plaintiffs' First Amendment retaliation claim against the state defendants. The Court of Appeals remanded the action for further proceedings as to that single claim.¹

Additional discovery followed the Second Circuit's remand. In addition, the claims against two of the state defendants, Naomi Hauser and Joseph Moore, have been dismissed by stipulation of the parties. The remaining fifteen state defendants have once again moved for summary judgment, asserting that the record now before the Court conclusively demonstrates the lack of merit to plaintiffs' claims. Plaintiffs have filed papers in opposition to defendants' motion, and the Court heard oral argument on that motion on June 7, 2011.

SECOND CIRCUIT DECISION OF 2006

Before analyzing the pending summary judgment motion which relates to all fifteen of the remaining defendants, it is prudent to review certain aspects of the Court of Appeals' 2006 Decision. The relevant factual background of the case was set forth with some precision in that decision, 436 F.3d at 149–51. The only claim of plaintiffs' to survive this Court's prior summary judgment decision and the Court of Appeals' decision is plaintiffs' First Amendment retaliation claim.

There are several aspects of the Second Circuit's decision relating to retaliation which bear repeating here. Of particular importance is, first, that court's holding that “issue preclusion does not bar litigation of the First Amendment retaliation claim.” Id. at 153. In so ruling, the court rejected defendants' argument that the court should give preclusive effect to the decision of a state administrative law judge (“ALJ”) who found, after an evidentiary hearing on DOH's claim that Beechwood's operating certificate should be revoked, that DOH had proved several serious deficiencies at Beechwood that justified revocation.

In his decision, the ALJ rejected Beechwood's allegations of improper motive on the part of DOH officials, finding that DOH acted in good faith and that it had attempted to keep Beechwood open, but that Beechwood and the Chamberys failed to take advantage of the opportunities afforded by DOH to rectify the problems with the facility. As the Second Circuit put it, “[t]he ALJ ‘emphatically rejected Beechwood's allegations of regulatory ‘bias or ill will.’ ” 436 F.3d at 151.

The Court of Appeals, however, held that these findings concerning DOH's motives are not entitled to preclusive effect in this case. The court explained that although the issue of improper motive was “actually decided” by the ALJ, it was not “necessarily decided,” because the ALJ's decision on that issue was not “ ‘necessary to support a valid and final judgment on the merits'....” Id. (quoting Leather v. Eyck, 180 F.3d 420, 426 (2d Cir.1999)). Therefore, the court concluded, “issue preclusion does not bar litigation of the First Amendment retaliation claim.” Id.

The Court of Appeals went on to hold that “Beechwood [had] produced sufficient evidence of retaliatory motive to survive summary judgment.” Id. The court cited evidence of “[s]uspect chronology—the close sequence of protest [by Chambery] and scrutiny” of Beechwood by DOH, which the court stated constituted circumstantial evidence of retaliatory motive, as well as “direct evidence ... that the State's hostile pursuit of the partnership was motivated by an intent to punish the partnership for exercising First Amendment rights of speech and petition....” Id. at 153, 154. Noting evidence of statements by some DOH officials to the effect that they “were going to get” Chambery for his previous lawsuits against DOH, as well as evidence concerning other statements expressing similar motives, the court concluded that “[t]his is evidence from which a jury could reasonably find that the DOH was campaigning against the partnership as retaliation for the exercise of First Amendment rights.” Id. at 154.

As stated, having held that plaintiffs had presented sufficient evidence for a jury to find in their favor on the retaliation claim, the Court of Appeals remanded the action to this Court for further proceedings on that claim.

The Second Circuit's decision might seem, then, to have foreclosed any argument that plaintiffs' First Amendment claim should be dismissed as a matter of law, prior to trial. That is, however, precisely what defendants now seek to do.

Of course, this Court must comply with directives from the appellate court and must adhere to its mandate. Therefore, it indeed seems audacious, to say the least, for defendants to seek dismissal in favor of all the remaining defendants, in the face of the very clear Court of Appeals decision. That court found sufficient evidence to warrant a trial on the retaliation claim, and this Court must be ever mindful of that.

I do, however, recognize that a party is not generally precluded from making successive motions for summary judgment, as long as the party is not simply asking the court to rethink its earlier decision. See Sira v. Morton, 380 F.3d 57, 68 (2d Cir.2004) (“district courts enjoy considerable discretion in entertaining successive dispositive motions”) (citing Kovacevich v. Kent State Univ., 224 F.3d 806, 835 (6th Cir.2000) (“District courts may in their discretion permit renewed or successive motions for summary judgment”)); see also Campers' World Int'l, Inc. v. Perry Ellis Intern., Inc., 221 F.R.D. 409, 409 (S.D.N.Y.2004) (“it is improper for a party to file a successive motion for summary judgment which is not based upon new facts and which seeks to raise arguments it could have raised in its original motion”).

Defendants contend that their new motion for summary judgment is appropriate because it is based on evidence obtained through discovery following the Second Circuit's decision, as well as on new grounds. Defendants contend that “[e]xtensive discovery, including numerous depositions, have [sic] been conducted and before the Court is a new summary judgment [motion] on a complete record.” Def. Mem. (Dkt. # 187) at 3. Defendants also argue that whereas their prior motion, and this Court's and the Court of Appeals' previous decisions were based on the general legal principles of issue preclusion and absolute and qualified immunity, their present motion is based, in part, on the particular facts as to each individual defendant. It is also true, though, that defendants did not move previously on the primary ground raised here, i.e., that the evidence was lacking as to each individual defendant.

Although I am not convinced that some of the grounds now asserted in support of defendants' current motion could not have been presented previously, there has been a significant amount of discovery since the Second Circuit issued its decision in 2006. Whether the evidence unearthed in that discovery helps or hurts defendants is one of the points of contention here, but since defendants are not simply seeking to reargue matters that they raised, or could have raised, on their prior motion, I conclude that they are not precluded from...