Milton v. McClintic

CRAIG R. MILTON, Plaintiff, v. ELYSA McCLINTIC and WILLIAM McCLINTIC, Defendants.

No. 22-CV-6077L

United States District Court, W.D. New York

May 5, 2022

DECISION AND ORDER

DAVID G. LARIMER UNITED STATES DISTRICT JUDGE

Plaintiff Craig R. Milton, through counsel, brings this action against Elysa and William McClintic, pursuant to 42 U.S.C. § 1983. Plaintiff alleges that both defendants are physicians and that they violated his constitutional rights in connection with certain events that occurred when he was receiving medical treatment in February 2019, as explained below.

Service of process has been effected on both defendants, but William McClintic has not yet appeared in this action. Elysa McClintic (“Dr. McClintic”) has filed a motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

BACKGROUND

The complaint alleges the following facts, which for purposes of the pending motion are accepted as true. Plaintiff is a United States Navy veteran who resides in Elmira, New York. In the past, he has received medical treatment at a health clinic in Elmira that is administered by the Department of Veterans Affairs (“VA”).

On or about February 8, 2019, at the recommendation of an optometrist at the Elmira VA Clinic, plaintiff underwent surgery to correct a medical problem around his eyes. The surgery was performed by Dr. McClintic at Guthrie Robert Packer Hospital (“Packer”) in Sayre Pennsylvania, where Dr. McClintic was employed. Neither Packer nor Dr. McClintic have any direct association with the VA.

On February 13, 2019, plaintiff saw Dr. McClintic at Packer for a followup visit. During their conversation, he told her that although he was supposed to have been completely anesthetized during the operation, he was awake during part of it, and that he was unable to speak but he tried, unsuccessfully, to alert her to that fact by moving his arms and legs. He alleges that although he was in “tremendous pain” during the procedure, and that at the followup visit he thanked Dr. McClintic for working quickly so as not to “drag it out and make the surgery more painful.” Complaint ¶¶ 14, 16.

At some point in the conversation, Dr. McClintic mentioned that she knew that plaintiff carried a pistol in his pocket. Plaintiff, who at the time possessed both New York and Pennsylvania “concealed carry” permits, said that he did, and removed what he describes as a “miniature palm pistol” from his pocket. He alleges that he held it flat against his chest with one hand, and with the other hand pointed out the various parts of the pistol. He explained that he carried it for self-defense and that although he kept a spent round in the chamber, there were four more live bullets in the gun. Dr. McClintic made no response other than to raise one eyebrow. Shortly thereafter the session came to an end, and plaintiff left.

A week later, plaintiff received a letter from the Bradford County (Pa.) Sheriff, which “labeled [him] a ‘Danger to the General Public'” and directed him to turn over his Pennsylvania pistol permit within five days. He called the sheriff, who told him that someone from the VA had reported plaintiff for showing his pistol to Dr. McClintic. Id. ¶ 27.

Plaintiff states that based on reports that he has obtained from the Sayre Police Department and the VA, he believes that the source of this report was William McClintic, who is Dr McClintic's father-in-law. According to plaintiff, William McClintic, who is also a physician, had previously worked at Packer, and at the time of these events was employed by the VA. Plaintiff alleges that William McClintic, with the “encourage[ment]” of Dr. McClintic, falsely reported that plaintiff had brandished a firearm on federal property, and threatened a federal employee, i.e., Dr. McClintic, by pointing his pistol at her face. Plaintiff states that these accusations were false not only because he did not point his gun at Dr. McClintic, but because Packer is a private hospital not affiliated with the VA or any other federal agency, and because Dr. McClintic is not a federal employee.

Plaintiff alleges that William McClintic's report led to the issuance of a disruptive-behavior report by the VA Health System, which repeated William McClintic's allegations and also falsely characterized plaintiff as having been “very upset, angry, shaking, and unstable appearing” during the February 13 followup visit. The report also stated that Dr. McClintic reported that plaintiff had been talking about his pistol and about knives while he was sedated, during the surgery.

Apparently some report was made to officials in New York as well. On March 6, 2019, Chemung County (N.Y.) Court Judge Christopher P. Baker issued an order suspending plaintiff's New York pistol permit and ordering him to surrender his registered pistols. The order was carried out on March 15, 2019, by two Chemung County sheriff's deputies who seized four pistols registered to plaintiff.

Plaintiff had one more followup visit with Dr. McClintic on March 13, 2019, which apparently went off without incident. From March 11, 2019 to January 30, 2020, he was barred (apparently by the VA) from returning to the Elmira VA clinic for any reason. During that time, he had to travel over forty miles to the Bath, New York VA Medical Center for medical care, and he was required to notify local law enforcement prior to any visit there.

Based on these allegations, plaintiff asserts six claims for relief under § 1983, all of which are asserted against both defendants: (1) malicious prosecution; (2) violation of his rights to procedural and substantive due process; (3) conspiracy to violate plaintiff's civil rights; (4) denial of the “right to a fair proceeding, ” in violation of the Fifth, Sixth and Fourteenth Amendments; (5) violation of plaintiff's Second Amendment right to keep and bear arms; and (6) unlawful retaliation for plaintiff's exercise of his right to free speech under the First Amendment.

DISCUSSION

I. State Actor Requirement

To plead a claim under § 1983, a plaintiff must allege that he was injured by a state actor or a private party acting under the color of state law. Ciambriello v. Nassau, 292 F.3d 307, 323 (2d Cir. 2002). A private party acts under color of state law when there is such a close nexus between her conduct and the state that the defendant's conduct may fairly be treated as that of the state itself. Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003). In support of her motion to dismiss, Dr. McClintic asserts that plaintiff has not alleged facts sufficient to satisfy this requirement. The Court agrees. Dr. McClintic clearly is not a state actor and her acts were not such as to be tantamount to acts of a state employee.

Plaintiff, remarkably, concedes much in the complaint. Plaintiff expressly alleges that at all relevant times, Dr. McClintic was a “private doctor, ” not employed by the government, and that the hospital where she worked, Packer, “was a private hospital not affiliated in any way with the VA or any other Federal department in any way, shape, or form ....” Complaint ¶ 30. Accepting the truth of plaintiff's allegations, it could hardly be any clearer that Dr. McClintic could in no way be deemed a state actor. See Mir v. Kirchmeyer, No. 20-1659, 2021 WL 4484916, at *5 (2d Cir. Oct. 1, 2021) (“The Hospital defendants [employees of the hospital where plaintiff worked, who allegedly conspired to deprive plaintiff of his right to practice medicine] are private parties who are not liable under section 1983”).

In his response to the motion to dismiss, plaintiff states that Dr. McClintic can be considered a state actor because she is alleged to have conspired with her father-in-law, codefendant William McClintic, who at the time was a VA physician. Plaintiff also notes that defendants did not simply accuse plaintiff of a crime; they reported that plaintiff had threatened a federal employee with a firearm on federal property.

That argument is flawed in so many ways, it is difficult to know where to begin. For one thing, even assuming that William McClintic was in fact employed by the VA and that his report led the VA to take some action, he is not a state actor for purposes of § 1983. The word “state” in “state actor” literally refers to the states of the Union and their political subdivisions, not to the United States of America, i.e. the federal government. See Nghiem v. U.S. Dep't of Veterans Affairs, 323 Fed.Appx. 16, 18 (2d Cir. 2009) (district court properly dismissed § 1983 claims against VA employees because that statute applies only to state actors, not to federal officials); Bozgoz v. James, No. 19-239, 2020 4732085, at *9 (D.D.C. Aug. 14, 2020) (“there are no state actors named as defendants in the complaint-all defendants are federal employees. Thus, section 1983 does not apply”) (footnote omitted).

Perhaps unaware of this distinction, plaintiff has not argued that the Court should construe the complaint as asserting a claim under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), which is an analog to a § 1983 claim for claims against federal employees. Even if the Court were to treat the complaint as asserting a Bivens claim, it would be subject to dismissal. In Bivens, the Supreme Court “recognized an implied cause of action to recover damages from federal officers who violate constitutional rights in only three narrow circumstances, ” none of which apply here. Elhady v. Unidentified CBP Agents, 18 F.4th 880, 883 (6^th Cir. 2021).

Second that defendants allegedly accused plaintiff of threatening a federal employee, or possessing a firearm on federal property, is wholly irrelevant. Aside from the federal/state issue...