Talarico v. The Port Auth. of N.Y. & N.J.

• Decision Date: 23 February 2022
• Docket Number: 18-CV-909 (JPO)
• Court: U.S. District Court — Southern District of New York
• Parties: CHARLENE TALARICO, Plaintiff, v. THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendant.

CHARLENE TALARICO, Plaintiff, v. THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendant.

No. 18-CV-909 (JPO)

United States District Court, S.D. New York

February 23, 2022

OPINION AND ORDER

J. PAUL OETKEN, UNITED STATES DISTRICT JUDGE

Charlene Talarico brings this action against the Port Authority of New York and New Jersey (“Port Authority”) under 42 U.S.C. § 1983, alleging that the clandestine recording of a medical examination of her hand in the Port Authority's Office of Medical Services (“OMS”) violated her Fourth and Fourteenth Amendment rights. The Port Authority moves for summary judgment. For the reasons that follow, the Port Authority's motion is granted.

I. Background

The following facts are undisputed. Talarico worked as a senior administrative secretary for the Port Authority Technical Center within its Chief Security Office. (See Dkt No. 83 ¶ 6.) The Port Authority was and is a body corporate and politic, created by compact between the states of New York and New Jersey, and recognized and endorsed by Congress. (See Dkt. No. 83 ¶ 5.)

On August 4, 2016, Talarico and one of her supervisors got into an altercation. (See Dkt. No. 83 ¶¶ 13-14.) During this altercation, the supervisor removed Talarico's cellphone from her hand, which Talarico alleges injured her hand. (See Dkt. No. 83 ¶ 14.) Because of this alleged injury, Talarico visited the OMS, where a doctor examined her hand. (See Dkt. No 83 ¶¶ 17, 22.) The doctor's initial examination of Talarico's hand took place in a room that also served as a nurse supervisor's office. (See Dkt. No. 83 ¶ 21.) Unbeknownst to Talarico and the doctor who examined her hand, this initial examination was clandestinely recorded by a security camera installed within the room. (See Dkt. No. 83 ¶¶ 24-25.) The camera records only a portion of the room where Talarico had her examination, and a curtain within the room, when drawn, blocks the view of the camera. The Port Authority purportedly installed this camera at the request of personnel within the medical department to monitor potential theft of medication from a medicine cabinet. (See Dkt. No. 89 ¶¶ 7-8.) The footage of Talarico's examination from this security camera, filed under seal, does not contain audio, and mostly depicts Talarico and the doctor talking. At one point, the doctor physically examines Talarico's hands and demonstrates different hand movements that Talarico then attempts to replicate. Before leaving the room, the doctor gives Talarico an ice pack for her hand.

Talarico filed this action on February 1, 2018, asserting that the recording of the medical examination of her hand violated her Fourth Amendment right to be free of unreasonable searches and her privacy rights under the Fourteenth Amendment.^[1] (See Dkt. No. 1.) Talarico contends that the Port Authority is liable under 42 U.S.C. § 1983 because its practice of using security cameras to make recordings is what led to the deprivation of her constitutional rights. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). The Port Authority moved for summary judgment on May 3, 2021, asserting that Talarico did not experience a constitutional deprivation and disputing Monell liability. (See Dkt. No. 79.)

II. Legal Standard

A party is entitled to summary judgment if it can “show[] that there is no genuine dispute as to any material fact and [it] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party, ” and a fact is “material” if “it might affect the outcome of the suit under the governing law.” Hurley v. Tozzer, Ltd., No. 15 Civ. 2785, 2018 WL 1087946, at *1 (S.D.N.Y. Feb. 26, 2018) (quoting Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002)). The party moving for summary judgment bears the burden of showing that no genuine dispute of material fact exists, id., and in assessing whether the movant has carried this burden, a court “must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his or her favor, ” Access 4 All, Inc. v. Trump Int'l Hotel & Tower Condo., 458 F.Supp.2d 160, 166 (S.D.N.Y. 2006).

III. Discussion

The Court first considers whether Talarico experienced a deprivation of her Fourth or Fourteenth Amendment rights. Because the Court concludes that whether Talarico experienced a violation of her privacy rights under the Fourteenth Amendment cannot be decided at the summary judgment stage, the Court then considers whether the Port Authority is liable for a potential violation of Talarico's Fourteenth Amendment rights.

A. Constitutional Deprivation

1. Fourth Amendment

A search occurs when the government violates an individual's reasonable expectation of privacy. See Katz v. United States, 389 U.S. 347, 351 (1967). Whether Talarico had a reasonable expectation of privacy hinges on whether she “exhibited an actual (subjective) expectation of privacy” and if her subjective expectation was “one that society is prepared to recognize as reasonable.” United States v. Knotts, 460 U.S. 276, 281 (1983) (internal quotation marks omitted). For individuals in hospital settings, courts in this circuit and elsewhere have held that they generally do not have an objectively reasonable expectation of privacy. See, e.g., Sparks v. Seltzer, 607 F.Supp.2d 437, 442-43 (E.D.N.Y. 2009), aff'd, 380 Fed.Appx. 26 (2d Cir. 2010) (holding that “under Fourth Amendment jurisprudence, patients cannot be said to have a reasonable expectation of privacy in a hospital visiting room which may be entered by anyone during a visit and which indeed is used by more than one patient at a time for visits”); United States v. Franklin, 64 F.Supp.2d 435, 439 (E.D. Pa. 1999) (“We seriously doubt that the defendant had any reasonable expectation of privacy in the hospital emergency room which he shared with all the medical personnel.”).

The logic undergirding these opinions - that other patients or hospital personnel frequently enter hospital rooms while an individual is inside being treated, meaning that the individual cannot reasonably expect privacy - applies here. Talarico was in a room within the OMS, which the doctor who examined her described as an “emergency room” (see Dkt. No. 84-3 at 12:18-25). Talarico does not contest that nurses could enter the room. Indeed, the room she was in also served as a nurse supervisor's office. (See Dkt. No. 84-3 at 38:24-39:5.) Talarico insists that her expectation of privacy was reasonable because the room had a curtain that partitioned the area where she was being treated from the rest of the room. (See Dkt. No. 84-3 at 39:3-5.) Yet the footage shows that the curtains were not drawn around Talarico, a fact that she admitted in her deposition (see Dkt. No. 81-4 at 53), undermining both whatever subjective expectation of privacy she had and the objective reasonableness of any such expectation. The Court thus concludes, based on the undisputed facts, that the recording of her medical examination did not violate her Fourth Amendment rights.

2. Substantive Due Process Right to Privacy^[2]

Though substantive due process categorically protects privacy in medical information, see Hancock v. County of Rensselaer, 882 F.3d 58, 66-67 (2d Cir. 2018), “the constitutional right to privacy is not absolute, ” see id. at 65. Rather, “[a] constitutional violation only occurs when the individual's interest in privacy outweighs the government's interest in breaching it.” Id. Here, where an executive action is alleged to have infringed constitutionally protected privacy rights, “a plaintiff must show not just that the action was literally arbitrary, but that it was arbitrary in the constitutional sense.” O'Connor v. Pierson, 426 F.3d 187, 203 (2d Cir. 2005) (internal quotation marks omitted). “[O]nly the most egregious official conduct . . . that shocks the conscience[] will subject the government to liability.” Id. Whether an executive action shocks the conscience depends on “the state of mind of the government actor and the context in which the action was taken.” Id.

The Second Circuit's application of this “shocks the conscience” interest-balancing analysis in O'Connor v. Pierson is particularly instructive here. In O'Connor, the Second Circuit held that it could not be decided at the summary judgment stage whether a board of education requirement that a teacher had to turn over his medical records to be reinstated shocked the conscience. See O'Connor, 426 F.3d at 203-04. The board of education's proffered motive for the requirement - wanting the superintendent to directly review the medical records before reinstating the teacher - was directly contradicted by the superintendent's testimony in a deposition, casting doubt on the board of education's true motive. See id. Since the O'Connor court could not “conclude definitively that the Board acted without culpable intent toward [the teacher], ” it vacated the district court's grant of summary judgment to the board of education. Id. at 203.

Likewise the Court here cannot conclude definitively that the Port Authority acted without culpable intent toward Talarico. The Port Authority offered testimonial evidence that it had installed the camera in 2003 to monitor any potential theft of medication from a medicine cabinet. (See Dkt. No. 89 ¶ 8.) Yet Dr. Kerlegrand testified in her deposition that medications were not kept in the cabinet, obviating the Port Authority's proffered justification for the camera. (See Dkt. No. 84-3 at 27:14-29:03.) From this record, it is unclear whether the Port Authority's installation and continued use of a hidden camera to make recordings - in...