Hernandez v. Kirby Forensic Psychiatric Hosp.

Victor Hernandez, Plaintiff, v. Kirby Forensic Psychiatric Hospital, et al., Defendants.

14-cv-5910 (AJN)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

September 24, 2019

OPINION & ORDER

ALISON J. NATHAN, District Judge:

In this action under 42 U.S.C. § 1983, Plaintiff alleges that Defendant violated Plaintiff's constitutional right to privacy by disclosing his HIV status to other patients and staff at a psychiatric hospital. Defendant now moves for summary judgment, which Plaintiff opposes. For the reasons given below, Defendant's motion is GRANTED.

I. BACKGROUND

Except where otherwise noted, the following facts are not in dispute. Plaintiff was hospitalized at Kirby Forensic Psychiatric Hospital ("Kirby") from December 5, 2013, to January 3, 2014. Dkt. No. 165 ¶ 11. On January 2, 2014 Plaintiff was arrested and taken to central booking for processing on charges that he had attacked Kirby staff. Id. ¶ 52. As further discussed below, the details of this incident are in dispute. Plaintiff was soon transferred to the New York City Department of Corrections. Id. ¶ 12. Plaintiff did not return to Kirby after this transfer. Id. ¶ 13.

Plaintiff alleges that during the brief period after he had returned to Kirby, he was approached by three other patients who informed him that Jonathan Daniels, a Kirby staff member and the remaining Defendant in this case, had told them that Plaintiff was HIV positive. Sec. Am. Compl. ¶¶ 8-17. Plaintiff further alleges that Daniels had not been authorized by Plaintiff to make this disclosure. Id. Plaintiff later claimed in his deposition that Daniels also told other Kirby staff about Plaintiff's HIV status. Hernandez Tr., Dkt. No. 166-1, at 57:3-58:12. Daniels denies that he made any such disclosure and counters that Plaintiff himself disclosed his HIV status publicly during an attack on Kirby staff. Daniels Decl., Dkt. No. 171 ¶¶ 5-6, 10.

On May 8, 2015, relating to the December 31 incident, Plaintiff pleaded guilty before Justice Wittner of the New York State Supreme Court to one charge of Aggravated Harassment of an Employee by an Inmate. Dkt. No. 165 ¶¶ 56-57. Under oath, Plaintiff responded "[y]es" to the question of whether he "threw a tissue which has blood on it at a Corrections employee or mental health employee." Id. ¶ 58. In response to the question of whether he had done so "[w]ith intent to harass, annoy or alarm," Plaintiff again responded in the affirmative. Id.

Plaintiff filed his initial complaint in this action on July 28, 2014. Dkt. No. 1. On December 14, 2015, Plaintiff filed his Second Amended Complaint, ("Sec. Am. Compl."), Dkt. No. 65, which is the operative pleading in this action. In addition to the claims against Daniels, Plaintiff also brought suit against two of Daniels' supervisors under a theory of supervisory liability. Id. ¶¶ 27, 33. On January 13, 2016, Defendants moved to dismiss Plaintiff's claims against Daniels' supervisors, Dkt. No. 67, which this Court granted on September 14, 2016, Dkt. No. 90. Daniels filed for summary judgment on December 7, 2018, Dkt. No. 163. Plaintiff's opposition was filed on May 15, 2019. Dkt. No. 189. Defendant then filed a reply on May 28, 2019. Dkt. No. 191.

II. LEGAL STANDARD

A court will grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R. Civ. P. 56(a). In conducting this analysis, a court must "construe the facts in the light most favorable to the non-moving party and resolve all ambiguities and draw all reasonable inferences against the movant." Delaney v. Bank of Am. Corp., 766 F.3d 163, 167 (2d Cir. 2014) (internal quotation marks and alterations omitted). If the court determines that "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial" and accordingly the court will grant summary judgment to the moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks and citation omitted). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007).

Additionally, the Court construes all of Plaintiff's arguments liberally as "[i]t is well established that the submissions of a pro se litigant must be construed liberally and interpreted 'to raise the strongest arguments that they suggest.'" Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)).

III. DISCUSSION

Plaintiff asserts that by disclosing Plaintiff's HIV status to others on the hospital ward without authorization, Defendant violated Plaintiff's constitutional right to privacy. Defendant moves for summary judgment on the grounds that the only evidence in the record that Defendant made such a disclosure is Plaintiff's inconsistent testimony; that Plaintiff forfeited his right to privacy by publicly disclosing his own HIV status; that any disclosure would have served a legitimate penological interest; and finally that Defendant is protected by qualified immunity. For the reasons below, the Court concludes that Defendant is entitled to summary judgment because Plaintiff's public disclosure of his HIV status eliminated any reasonable expectation thatthis information would remain confidential. Since the Court finds that this is sufficient to resolve this motion, it is not necessary to reach any of Defendant's other arguments.

Before turning to the merits, the Court initially notes that Plaintiff failed to respond to Defendant's Statement of Undisputed Facts, filed pursuant to Local Rule 56.1. Dkt. No. 165. Generally, any fact asserted in a moving party's Rule 56.1 Statement "will be deemed to be admitted for purposes of the motion unless specifically controverted by a corresponding numbered paragraph in the statement required to be served by the opposing party." Local Rule 56.1(c). "Pro se litigants are 'not excused from meeting the requirements of Local Rule 56.1.'" Lee v. Starwood Hotels & Resorts Worldwide, Inc., No. 14-cv-5278 (KPF), 2016 WL 3542454, at *7 (S.D.N.Y. June 22, 2016) (quoting Wali v. One Source Co., 678 F. Supp. 2d 170, 178 (S.D.N.Y. 2009)). Nonetheless, "the Court retains some discretion to consider the substance of the plaintiff's arguments, where actually supported by evidentiary submissions." Wali, 678 F. Supp. 2d at 178 (citing Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001)). Particularly in light of Plaintiff's pro se status, the Court therefore conducts an independent review of the evidentiary record to ensure that Defendant has met its burden of production, that no genuine disputes of material fact remain, and that Defendant is entitled to judgment as a matter of law. See Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).

A. Plaintiff's Highly Inconsistent Testimony, Standing Alone, Cannot Create a Genuine Dispute of Material Fact

Plaintiff disputes that he attacked Kirby staff on December 31, 2013 and that during that attack he publicly disclosed his HIV status. However, the only evidence in support of Plaintiff's argument is his own testimony, which is so inconsistent that it on its own cannot create a genuine dispute of material fact.

As a general matter, a court will not make credibility determinations on a motion for summary judgment. However, summary judgment is appropriate if (1) there is "nothing in the record to support plaintiff's allegations other than plaintiff's own contradictory and incomplete testimony" and (2) "even after drawing all inferences in the light most favorable to the plaintiff . . . no reasonable person could believe [their] testimony." Jeffreys v. City of N.Y., 426 F.3d 549, 555 (2d Cir. 2005) (internal quotation marks and brackets omitted); see also Rivera v. Rochester Genesee Reg'l Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014) (same). Thus, if a plaintiff's testimony is riven with contradictions and no "hard evidence" exists that could "show[] that [his] version of the events is not wholly fanciful," then this testimony will be insufficient on its own to create a genuine dispute of material fact. D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998). That is the case here.

Plaintiff's testimony as to a December 31, 2013 altercation contradicts his previous testimony under oath and his own testimony here. In his interrogatory response, Plaintiff stated that he had been arrested "for no reason." Liebowitz Decl. Ex. H at 4. At his deposition, Plaintiff testified that there was no altercation, but rather that it was a conspiracy against him by Kirby staff. Hernandez Tr. at 84:3-87:14, 90:15-20; 128:21-129:6. This is in direct contradiction with Plaintiff's own testimony under oath in New York Supreme Court in which he admitted to intentionally throwing a blood-covered tissue at staff. See Liebowitz Decl. Ex. C at 3:17-4:14.

This is not the only inconsistency. In his Second Amended Complaint, Plaintiff alleges that he returned to Kirby after "an unrelated outside medical procedure." Sec. Am. Compl. ¶ 8. Yet at his deposition, he acknowledged that he had been taken off the ward to process his arrest. Hernandez Tr. at 128:11-130:22. Finally, Plaintiff does not offer any hard evidence to supporthis version of these events.

Plaintiff's testimony as to the alleged disclosure of his HIV status is also replete with inconsistencies. At his deposition, Plaintiff initially testified that he had not personally witnessed Daniels telling others about Plaintiff's HIV status, Hernandez Tr. at 56:25-57:3, before moments later reversing course and testifying that he had witnessed Daniels telling...