Radin v. Tun
| Decision Date | 17 July 2015 |
| Docket Number | No. 12 Civ. 1393 (ARR) (VMS),12 Civ. 1393 (ARR) (VMS) |
| Parties | LIDYA MARIA RADIN, Plaintiff, v. DOCTOR TUN, DOCTORS AND STAFF AT RIKER'S ISLAND PRISON MENTAL HEALTH DEPARTMENT, DAPHNE HERARD, JESIKA ASARO, ROSE CHAN, MARIANNE CAPONE, LENA BLAU, BOB ARKOW, HAROLD CHARLES, MARGARITA GORMUS, MALANIE SPRITZ, LISA CHOLEFF, BRENDA R. HARRIS, ALKESH NAVIN PATEL, RAUL CALICDAN, RUKHASANA RASHEED, ESSAM YOUSEF, SHAHEENA AHMED, DR. MORALES, DR. GLICK, DR. GOME, DR. ROBERT LAMPSKE, PHD BRYAN FALLON, M.D. RAYMOND CLOVIS, PHYSICIAN ASSISTANT CHARLES, ELMHURST HOSPITAL, its doctors and staff, PATRICIA GUZOKWSKI, LCSW, DR. MICHELLE KANALY, DR. MICHAEL MANASHEROV, J. LOWNEY, New York City Department of Probations Officer, S. SELTZER, Supervisor, OFFICER RUBINKOWSKI, Probations Office at Riker's Island, VINCENT N. SCHIRALDI, Commissioner of Probation, DANIEL CARROW, ALBERT EINSTEIN COLLEGE OF MEDICINE OF YESHIVA UNIVERSITY, M.D. JAMES DAVID (JIMMY), MARTIN BOCKSTEIN, JUDGE ROBERT D. PATTERSON, JR., JUDGE GUIDO CALABRESI, JUDGE JAMES A. RESTANI, U.S. MARSHAL JAMES HOWARD, U.S. MARSHAL IMMANUEL MISCHA WARTOFSKY, U.S. MARSHAL SHERI ROBINSON, and JOHN DOES 1-100, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
REPORT AND RECOMMENDATION
Before the Court on referral from the Honorable Allyne R. Ross are Defendants' three motions to dismiss the Corrected Second Amended Complaint of Plaintiff Lidya Radin ("Plaintiff" or "Ms. Radin") pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6). For the reasons stated herein, this Court respectfully recommends that Defendants' motions be granted and that the Corrected Second Amended Complaint be dismissed in its entirety.
On March 15, 2012, Ms. Radin commenced this action by filing her original pleading. Compl., ECF No. 1. Ms. Radin thereafter filed a First Amended Complaint, ECF No. 7; a Second Amended Complaint, ECF No. 83; and a Corrected Second Amended Complaint, ECF No. 91. The procedural history and content of Ms. Radin's prior pleadings are described in detail in this Court's Order and Memorandum denying without prejudice Ms. Radin's motion for the Court to request pro bono counsel. Order at 2-9, ECF No. 124.
In short, the Honorable John Gleeson, to whom this case was then assigned, warned Ms. Radin that her original Complaint was "confusing," "unclear," "meandering and contains an abundance of extraneous information which makes it impossible to tell what these defendants are alleged to have done wrong." Order at 2, ECF No. 3. Judge Gleeson directed Ms. Radin to file an amended pleading that would comply with Rule 8(a) and "set forth the specific factual allegations to support her claims against all named defendants." Id. at 3. Ms. Radin then filed her First Amended Complaint, which narrowed her claims to allegations of defamation only. Am. Compl. at 1, ECF No. 7. Thereafter, Ms. Radin requested to file a second amended pleading, and this Court granted Ms. Radin multiple extensions of time in which to file her Second Amended Complaint. See 4/17/2013 Order, ECF; 4/30/2013 Order, ECF; 11/12/2013Scheduling Order, ECF; 3/14/2014 Order, ECF; 5/9/2014 Order, ECF. The Second Amended Complaint added and removed certain Defendants, and also added several claims, including claims under 42 U.S.C. § 1983. Sec. Am. Compl. ( ), ECF No. 83. Ms. Radin subsequently requested to file a corrected copy of her Second Amended Complaint, to include additional defendants and claims, and the Court allowed her to file this amended pleading. 6/5/2014 Scheduling Order, ECF. The Court warned Ms. Radin that "[n]o further amendments or corrections will be allowed absent exigent circumstances." Id. Ms. Radin then filed her Corrected Second Amended Complaint, the operative pleading for purposes of this motion. Corr. Am. Compl. II ( ), ECF No. 91.
The Corrected Second Amended Complaint named the following Defendants:
Plaintiff asserts her claims against each individual defendant in that defendant's personal and professional capacity. Am. Compl. III ¶¶ 2-45.
The following Defendants are represented by the Corporation Counsel of the City of New York: Elmhurst, Rikers MHD, the DOP, Ms. Herard, Ms. Asaro, Ms. Chan, Ms. Capone, Ms. Blau, Mr. Arkow, Mr. H. Charles, Ms. Gormus, Ms. Spritz, Ms. Choleff, Ms. Harris, Mr. Calicdan, Ms. Rasheed, Dr. Glick, Dr. Fallon, Dr. Clovis, Ms. Guzowski, Dr. Kanaly, Dr. Manasherov, Mr. Seltzer, and Mr. Shiraldi. Hereinafter, the Court will refer to these Defendants as the City Defendants. Although not named as defendants, Corporation Counsel also represents the DOHMH and the City.
Defendants Dr. Patel and Dr. Ahmed, psychiatrists at Rikers Island, retained private counsel. They will be referred to as the Psychiatrist Defendants.
Defendants Albert Einstein, Mr. Bockstein and Dr. David are represented by counsel for Albert Einstein and will be referred to as the Einstein Defendants.
Calabresi, Judge Restani, Marshal Howard, Marshal Wartofsky, and Marshal Robinson have not appeared in this action and are not represented. As discussed below, it does not appear that they were ever served with the summons and complaint as required by Rule 4. They will be referred to as the Non-moving Defendants.
In her Corrected Second Amended Complaint, Ms. Radin alleged that Defendants violated 42 U.S.C. §§ 1983, 1985, 1986, 1988; 18 U.S.C. §§ 241, 242, 245, 249; 18 U.S.C. § 4; 18 U.S.C. § 1589; and New York Education Law § 6530. Am. Compl. III ¶¶ 50, 53.6 Ms. Radin also alleged state law claims sounding in negligence, medical malpractice and fraud. Id. ¶¶ 54-56. Furthermore, as discussed infra, Section II.B.8, Ms. Radin alluded in her opposition papers and elsewhere to additional claims she would like to bring.
Ms. Radin alleged that in or around March 2010, the DOHMH "attempted to undertake the psychiatric care of Plaintiff Radin without Plaintiff Radin's consent," which she alleged violated New York Education Law § 6530 and demonstrated negligence and medical negligence. Am. Compl. III ¶¶ 53-54. According to Ms. Radin, she was falsely imprisoned in the DOHMH mental health observation ward "where she suffered physical assault." Id. ¶ 70.
Ms. Radin alleged that the DOHMH demonstrated negligence by "not following proper protocol for providing psychiatric care for recalcitrant persons" and by creating "false records." Am. Compl. III ¶ 55. These false records were purportedly "built on, among other things, intentionally false records at Jersey City Medical Center," which in turn were "built on, among other things, intentionally false records at [Albert Einstein]." Id. ¶¶ 57-59. Jersey City MedicalCenter is not a defendant in this case.7 Ms. Radin also asserted that she "was never a patient of any one at [Albert Einstein]," including Defendant Dr. David, as well as Dr. Janice Bennett ("Dr. Bennett") and Dr. Michael J. Reichgott ("Dr. Reichgott"), who were not named as defendants in this action. Id. ¶¶ 61-64.8
Ms. Radin further alleged that the DOHMH acted fraudulently by billing for "un-authorized[] and unwanted services." Am. Compl. III ¶ 56. Ms. Radin also alleged that she was fraudulently induced into enrolling at Albert Einstein in 1994 "based on false promises made during the admissions process." Id. ¶ 67. Finally, Ms. Radin alleged that Maria Piovanetti ("Ms. Piovanetti"), whom Ms. Radin did not name as a defendant in this action, made threatening phone calls to Ms. Radin. Am. Compl. III ¶¶ 75-77.
The City Defendants, the Einstein Defendants and the Psychiatrist Defendants each moved under Rule 12(b)(6) to dismiss Plaintiff's Corrected Second Amended Complaint. City Mot., ECF No. 137; Einstein Mot., ECF No. 142; Psychiatrist Mot., ECF No. 144. Each of these three motions was supported by a memorandum of law. City Mem., ECF No....
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