Koch v. Mirza
| Decision Date | 18 February 1994 |
| Docket Number | No. 91-CV-685A.,91-CV-685A. |
| Citation | 869 F. Supp. 1031 |
| Parties | Gerald W. KOCH, D.D.S., Plaintiff, v. Mahmud MIRZA, M.D., Rubina Mirza, D.D.S., Robert Coffey, Russell Massaro, M.D., Elliott G. Rubenstein, John O. Swearingen, Genevieve Collins, Michael Weiner, C. Richard Orndoff, David J. Carlini, and Philip D. Smith, Defendants. |
| Court | U.S. District Court — Western District of New York |
COPYRIGHT MATERIAL OMITTED
J. Daniel Lenahan, Buffalo, NY, for plaintiff.
Robert Abrams, Atty. Gen., State of N.Y., (Peter B. Sullivan, Asst. Atty. Gen., of counsel), Buffalo, NY, for State defendants.
Damon & Morey (Anthony J. Colucci, III, Kathleen M. Kaczor, of counsel), Buffalo, NY, for defendant Smith.
This matter was referred to Magistrate Judge Leslie G. Foschio, pursuant to 28 U.S.C. § 636(b)(1), on April 8, 1992. Item No. 9. On December 4, 1991, defendants M. Mirza, R. Mirza, Coffey, Rubenstein, Collins, Weiner, Orndoff and Carlini filed a motion to dismiss the complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). On December 16, 1991, defendant Massaro filed a motion to dismiss the complaint on the same ground.1 Defendant Smith filed his answer to the complaint on March 18, 1992, asserting a cross-claim against the State defendants for indemnification. On March 25, 1992, the State defendants filed a motion to dismiss Smith's cross-claim. As of the filing of the motion to dismiss, defendant Swearingen had not been served with the summons and complaint and therefore did not join in the motion.
On October 25, 1993, Magistrate Judge Foschio filed a very thorough Report and Recommendation recommending that the State defendants' motion to dismiss the complaint be granted; that the complaint be dismissed against defendants Smith and Swearingen; and that the State defendants' motion to dismiss defendant Smith's cross-claim be deemed moot, or, in the alternative, be granted on the merits. Item No. 20. Plaintiff filed objections to the Report and Recommendation on November 29, 1993. Item No. 23. The State defendants filed a response to plaintiff's objections on December 13, 1993, Item No. 24, and the Court heard oral argument on February 17, 1994.
Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Although plaintiff purports to object to the entirety of Magistrate Judge Foschio's Report and Recommendation, the Court finds that he has asserted only one objection: that Magistrate Judge Foschio erred in finding that plaintiff failed to allege that he attempted to speak out publicly about Rubina Mirza. This objection is relevant to Magistrate Judge Foschio's consideration of plaintiff's § 1983 claim, and whether plaintiff had set forth a deprivation of any right, privilege or immunity protected by the Constitution or laws of the United States. See Item No. 20, at 6-9.
Upon de novo review of the Report and Recommendation, and after reviewing the submissions of the parties, and hearing argument from counsel, the Court adopts the proposed findings of the Report and Recommendation with respect to plaintiff's objection. The Court notes that Magistrate Judge Foschio interpreted plaintiff's claims very broadly—reading into the complaint any possible claim plaintiff could be attempting to assert. Accordingly, for the reasons set forth in Magistrate Judge Foschio's Report and Recommendation, defendants' motion to dismiss the § 1983 claim based on the First Amendment is granted.
With respect to defendants' motion to dismiss plaintiff's other claims, their motion to dismiss defendant Smith's cross-claim for indemnity, and Magistrate Judge Foschio's recommendation that the complaint be dismissed as to defendants Smith and Swearingen, based on the Court's review of the Report and Recommendation and the submissions of the parties, and no objections having been timely filed, the Court grants these motions and adopts these proposed findings for the reasons set forth in the Report and Recommendation.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
This matter was referred to the undersigned by the Hon. Richard J. Arcara on April 8, 1992 for report and recommendation on any dispositive motions. The matter is presently before the court on the Defendants M. Mirza, R. Mirza, Coffey, Rubenstein, Collins, Weiner, Orndoff, Carlini, and Massaro's motion to dismiss the complaint and the cross-claim, and Defendant Smith's cross-motion to dismiss the complaint.
Plaintiff, Gerald W. Koch, D.D.S., filed this complaint on October 22, 1991. Plaintiff, formerly the Director of Dental Services at the Buffalo Psychiatric Center, has raised causes of action under 42 U.S.C. §§ 1983, 1985, and 1986. Defendants, with the exception of Defendant Philip D. Smith, at the time of the events giving rise to this action, were employees of the State of New York, Division of Mental Hygiene (the ).
On December 4, 1991, the Defendants M. Mirza, R. Mirza, Coffey, Rubenstein, Collins, Weiner, Orndoff, and Carlini, filed a motion to dismiss the complaint on the ground that the complaint failed to state a cause of action. On December 16, 1991, Defendant Massaro also filed a motion to dismiss the complaint on the same ground. Defendant Smith filed his answer to the complaint on March 18, 1992, asserting a cross-claim against the State Defendants for indemnification. On March 25, 1992, the State Defendants filed a motion to dismiss the cross-claim which was asserted in the answer of Defendant Smith. As of the time of the filing of the motion to dismiss the complaint, Defendant Swearingen had not been served with the summons and complaint, therefore, Swearingen did not join in the motion.
On May 22, 1992, Plaintiff filed a motion to amend the complaint to add additional parties. This motion will be discussed in a separate Decision and Order.
On August 7, 1992, Defendant Smith filed a Memorandum of Law in support of his cross-motion to dismiss the complaint for failure to state a claim, asserted as an affirmative defense in his Answer, dated March 18, 1992.
Following the submission of various memoranda of law, the court determined that no oral argument on the motions was necessary.
For the reasons as set forth below, I recommend that the State Defendants' motion to dismiss the complaint should be GRANTED. I also recommend that the complaint should be dismissed as against Defendants Swearingen and Smith. Finally, I also recommend that the State Defendants' motion to dismiss the cross-claim of Defendant Smith should be deemed moot, and, as such, dismissed. Alternatively, I recommend that the State Defendants' motion to dismiss Defendant Smith's cross-claim be GRANTED.
Plaintiff, a dentist, was appointed, on September 24, 1986, as the interim supervisor of the dental office at the Buffalo Psychiatric Center.1 Thereafter, Plaintiff was appointed as Director of Dental Services. At the time of the events giving rise to this lawsuit, Defendant Mahmud Mirza was the Director of the Buffalo Psychiatric Facility, Defendant Rubina Mirza, his wife, was a staff dentist at the facility, Defendant Coffey was the Deputy Director of the facility, Defendant Massaro was the Associate Medical Clinical Director of the facility and the Associate Commissioner, Medical, of the New York State Office of Mental Health, Defendant Rubenstein was the Associate Director of Personnel Services at the facility, Defendant Swearingen was the Director of Manpower Resources at the facility, Defendant Collins was the Director of Affirmative Action at the facility, Defendant Weiner was a member of the Western New York Regional Office of Mental Health, Defendant Orndoff was the Director of the Western New York Regional Office of Mental Health, and Defendant Carlini was the Deputy Director of the Western New York Regional Office of Mental Health. Defendant Smith, the only defendant who is not employed by New York State is the owner of Philip D. Smith & Associates, and is alleged to have questioned Plaintiff with regards to a workers' compensation claim.
Plaintiff claims that he received several complaints about the professional work of Rubina Mirza, but that he was hindered in his attempts to investigate the complaints by Defendants M. Mirza, Coffey, Rubenstein, and Massaro. Plaintiff further alleges that Rubina Mirza withdrew files from Plaintiff's offices without authorization, but that, upon reporting such incidents, Plaintiff was told to ignore her actions. According to Plaintiff, Defendants Weiner, Orndoff and Carlini refused to intervene in the dispute, despite being told of the difficulties with Rubina Mirza. Finally, on May 31, 1989, Plaintiff resigned his position at Buffalo Psychiatric Facility, on the basis that he was unable to continue his duties in a lawful and ethical manner.
On June 25, 1990, Defendant Smith questioned Plaintiff regarding the incidents in the context of investigating a workers' compensation claim concerning Rubina Mirza. Plaintiff claims that the tenor of his conversation with Smith was hostile, and that the meeting appeared to be at the instigation of the State Defendants, and for the purpose of preventing Plaintiff from "speaking with regard to" his difficulties with Rubina Mirza. See, Complaint at ¶ 5.
On a motion to dismiss, the court looks to the four corners of the complaint and is required to accept plaintiff's allegations as true and to construe those allegations in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Dacey v. New York County Lawyers' Association, 423 F.2d 188, 191 (2d Cir.1969), cert. denied, 398 U.S. 929, 90 S.Ct. 1819, 26 L.Ed.2d 92 (1970). The complaint will be dismissed only if "it appears...
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