Scheiner v. New York City Health and Hospitals, 98 CIV. 8330(JGK).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Citation152 F.Supp.2d 487
Docket NumberNo. 98 CIV. 8330(JGK).,98 CIV. 8330(JGK).
PartiesClifford J. SCHEINER Plaintiff, v. NEW YORK CITY HEALTH AND HOSPITALS, et al., Defendants.
Decision Date24 July 2001
152 F.Supp.2d 487
Clifford J. SCHEINER Plaintiff,
No. 98 CIV. 8330(JGK).
United States District Court, S.D. New York.
July 24, 2001.

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Eugene Nathanson, New York City, for Plaintiff.

Kevin J. Smith, ACC, New York City, for Defendants.


KOELTL, District Judge.

This action is brought pursuant to 42 U.S.C. § 1983 and also invokes the Court's supplemental jurisdiction over pendent state law claims. The plaintiff, Clifford J. Scheiner ("Scheiner"), alleges that he was stripped of his clinical privileges and fired from his position as an emergency room physician at Kings County Hospital Center in violation of his rights under the First and Fourteenth Amendments to the United States Constitution. The plaintiff also brings state law claims for malicious prosecution and for a violation of New York State's whistleblower statute, N.Y. Civ.

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Serv. Law § 75-b.1 The defendants, the New York City Health and Hospitals Corporation ("HHC"), Reinaldo Austin ("Dr.Austin"), Theodore Bania ("Dr.Bania"), Bonny Baron ("Dr.Baron"), Gene Becker ("Dr.Becker"), Randall Bloomfield ("Dr.Bloomfield"), Audrey Phillips-Caesar ("Phillips-Caesar"), Louis Camilien ("Dr.Camilien"), Devitt Elverson ("Dr.Elverson"), James Fine ("Dr.Fine"), Edward Fishkin ("Fishkin"), Ronald Hartnet ("Dr.Hartnet"), Charles Hyman ("Dr.Hyman"), Jean G. Leon ("Leon"), Ronald B. Low ("Dr.Low"), Luis R. Marcos ("Dr.Marcos"), Richard Meehan ("Dr.Meehan"), Pedro Penha ("Dr.Penha"), Venkatesalu Rajagopal ("Dr.Rajagopal"), James Reilly ("Dr.Reilly"), Philip Rice ("Dr. Rice"), Martin Salwen ("Dr.Salwen"), Thonas Scalea ("Dr.Scalea"), Steven Seligman ("Dr.Seligman"), Constance Shames ("Dr. Shames"), Richard Sinet ("Dr.Sinet"), Ian Shivack ("Dr.Shivack") and Arnold Strashun ("Dr.Strashun") now move for summary judgment pursuant to Fed.R.Civ.P. 56. The plaintiff has cross-moved for partial summary judgment against Dr. Elverson, Dr. Strashun, Dr. Bloomfield, Dr. Hyman, Dr. Seligman, Dr. Philips-Caesar, Dr. Leon, Dr. Marcos, and HHC (collectively the "Responding Defendants").


The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir.1994). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The substantive law governing the case will identify those facts which are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)); see also Gallo, 22 F.3d at 1223. If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P.

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56(e). With respect to the issues on which summary judgment is sought, if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir.1994).


The following facts are not in dispute, except where noted. Kings County Hospital Center ("KCHC") is a municipal hospital and is a facility of the defendant HHC, a public corporation chartered by the State of New York. (Compl. ¶ 9; Pl.'s 56.1 St. ¶ 2; Defs.' 56.1 Counter-St. ¶ 1.) The plaintiff began employment at KCHC in 1976, first as an intern and ultimately as an attending physician. (Pl.'s 56.1 St. ¶ 1; Defs.' 56.1 St. ¶¶ 1-4; Pl.'s 56.1 Counter-St. ¶¶ 1-3.) The plaintiff worked in the Department of Emergency Medicine ("DEM") and the Urgent Care Center ("UCC") until December 5, 1995, when his clinical privileges were revoked. (Defs.' 56.1 St. ¶ 6; Pl.'s 56.1 St. ¶ 3.) The plaintiff's employment was terminated on or about March 6, 1996. (Defs.' 56.1 St. ¶ 7; Pl.'s 56. St. ¶ 4; Defs.' 56.1 Counter-St. ¶ 3.)

In the summer of 1994, defendant Phillips-Caesar became Deputy Executive Director of KCHC with supervision over various areas of hospital administration. (Defs.' 56.1 St. ¶ 8; Pl.'s 56.1 Counter St. ¶ 4.) Defendant Jean Leon began her employment at KCHC in or about July 1994 as the Interim Executive Director, and became the Executive Director in or about February 1995. (Defs.' 56.1 St. ¶ 9.) Defendant Dr. Rice, who was asked to join the staff of KCHC by defendant Dr. Scalea, began his employment at KCHC in or about July 1992 as the Director of the DEM. (Defs.' 56.1 St. ¶ 10.)

In April 1994, Dr. Rice initiated disciplinary proceedings against Scheiner by initiating a Request for Disciplinary Action ("RDA") against the plaintiff with the Chairman of the Medical Staff Committee. (Defs.' 56.1 St. ¶ 29; Third Declaration of Assistant Corporation Council Kevin J. Smith dated October 30, 2000 (hereinafter "Joint Ex."), Joint Ex. 2.) The RDA contained four allegations against the plaintiff: lack of basic medical knowledge; repeated displays of rudeness; refusal to or delay in evaluating or treating patients in violation of the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"); and, insubordination. (Joint Ex. 2 at 1.) Pursuant to the KCHC Medical Staff By-laws (Joint Ex. 1 at 33-34), the RDA was referred to an Ad Hoc Committee of the DEM ("AHC"). (Defs.' 56.1 St. ¶ 30.) The Ad Hoc Committee consisted of Drs. Low, Baron, Hartnet, and Bania. (Joint Ex. 3; Defs.' 56.1 St. ¶ 44.) Under the KCHC Medical Staff By-laws, the AHC investigates the matter and makes a report on the matter to the Medical Staff Committee ("MSC"). The KCHC Medical Staff By-laws provide that the AHC is to interview the practitioner subject to discipline, but the interview does not constitute a hearing. (Joint Ex. 1 at 33-34.)

On or about April 27, 1994, Dr. Low, a physician and faculty member within the DEM, sent the plaintiff a letter which: (1) informed the plaintiff that he was the Chairman of the AHC; (2) informed the plaintiff of the general nature of the statements made about him that were included within the RDA; (3) provided to the plaintiff a list of the medical cases that were the subject of the RDA, a statement about the complaints of rudeness regarding the plaintiff, a statement of the alleged COBRA violations, and a statement regarding the plaintiff's insubordination. (Joint Ex. 3.)

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On or about April 30, 1994, the plaintiff requested that he have the opportunity to review the medical records of the patient cases that were the subject of the RDA. (Defs.' 56.1 St. ¶ 41.) The plaintiff was given the opportunity to review the medical charts of the patient cases over a period of 1 to 1½ hours. (Defs.' 56.1 St. ¶¶ 42-43.) On May 3, 1994, the AHC met with the plaintiff. (Defs.' 56.1 St. ¶ 44; Pls. 56.1 Counter-St. ¶ 20.) The AHC, pursuant to Article 9 of the KCHC Medical Staff By-laws, then recommended to the MSC that the plaintiff be dismissed from the KCHC Medical Staff. (Joint Ex. 1, at 34; Joint Ex. 4 at 5.)

Pursuant to the KCHC Medical Staff By-laws, the MSC is to consider the AHC report and conduct its own investigation and take whatever action it deems appropriate under the circumstances. (Joint Ex. 1 at 34-35.) The MSC that investigated the plaintiff consisted of Drs. Meehan, Camilien, Rajagopal, Reilly, Salwen, and Shames. (Defs.' 56.1 St. ¶ 53.) The MSC convened on June 3, 1994, and met with the plaintiff regarding the RDA. (Joint Ex. 5.) The MSC recommended that the President of the Medical Staff inform defendant Leon that, due to Scheiner's unsatisfactory performance, he should be dismissed. (Joint Ex. 5 at 14.) By letter dated Sept. 29, 1994, Dr. Meehan informed Leon of the MSC's recommendation regarding the plaintiff. (Joint Ex. 6.)

Subsequently, by letter dated October 11, 1994, Leon informed the plaintiff that, based upon the recommendations of the AHC and the MSC, it was proposed that the plaintiff's clinical privileges and staff membership at KCHC be revoked, and that he not be reappointed to the medical staff at KCHC. (Joint Ex. 7.) Leon also advised the plaintiff of his right to invoke the grievance procedure pursuant to Article 10 of the KCHC Medical Staff By-laws, and set forth the grievance procedures to which the plaintiff was entitled. (Joint Ex. 7.) The letter also allegedly included a copy of the RDA. (Joint Ex. 7; Joint Ex. 11; Pl.'s 56.1 Counter-St. ¶ 22.)

Thereafter, in a November 4, 1994 letter to Dr. Meehan, the President of the Medical Staff, the plaintiff initiated the grievance procedure set forth in the...

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