ALICE BLOUIN, As Administratrix of the Estate of SHEILA POULIOT, and of the Goods, Chattels and Credits Which Were of the Deceased, SHEILA POULIOT,

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1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ALICE BLOUIN, As Administratrix of the Estate of SHEILA POULIOT, and of the Goods, Chattels and Credits Which Were of the Deceased, SHEILA POULIOT, Plaintiff, v. 01-CV-0925 HGM/GJD ELIOT L. SPITZER, Individually, and In His Official Capacity as Attorney General of the State of New York; WINTHROP H. THURLOW, Individually, and In His Official Capacity as Assistant Attorney General of the State of New York; JOHN DOE, JANE DOE, JOHN POE, JANE POE, JOHN ROE, and JANE ROE (The Names of These Individuals Are Fictitious, the True Names of Said Individuals Unknown To Plaintiff at This Time), Individually, and In Their Official Capacities as Officers and/or Employees, Respectively, of the ATTORNEY GENERAL S OFFICE OF THE STATE OF NEW YORK (the DEPARTMENT OF LAW), the NEW YORK STATE OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES, and UNIVERSITY HOSPITAL/SUNY HSC AT SYRACUSE, Defendants. APPEARANCES: GREENE & REID, LLP 173 Intrepid Lane Syracuse, NY Attorneys for Plaintiff HON. ELIOT L. SPITZER Attorney General of the State of New York The Capitol Albany, New York Attorneys for Defendants Spitzer and Thurlow OF COUNSEL: JAMES E. REID, ESQ. KAREN MARCOUX MANKES Assistant Attorney General

2 HOWARD G. MUNSON, SR. J. ORDER Plaintiff is the sister and administratrix of the Estate of Sheila Pouliot ( Decedent ). Since the age of nine months, Decedent was a profoundly mentally and physically handicapped person and was totally dependent upon others... for all her basic functions during her 42 years of life. On December 21, 1999, Decedent was admitted to University Hospital ( Hospital ) in a terminally-ill condition. She was suffering from gastrointestinal bleeding and possible aspiration pneumonia, among other things. Upon admission, Decedent s family asked her treating physicians to withhold nutrition, hydration, and antibiotics. Meetings were held with her family, treating physicians, the Hospital s Ethics Committee and clergy to discuss her medical treatment. There was an agreement among the parties that only palliative treatment would be maintained and that any resuscitative treatment, if successfully attempted, would only prolong Decedent s suffering. At some time following the meetings, the Office of the Attorney General of the State of New York ( Office of the Attorney General ) directed and ordered that medical care be provided to Decedent. On December 27, 1999, such medical care, including administration of intravenous fluids and intravenous antibiotics, was initiated. On December 30, 1999, upon learning that Decedent s treating physician had failed to provide all of the ordered medical care, the Office of the Attorney General petitioned the Supreme Court of New York to appoint a guardian ad litem for Decedent. Subsequently, the Honorable James C. Tormey, III, Supreme Court Justice of the State of New York, appointed Gerald J. Neri, Esq. to be the Decedent s guardian ad litem. 2

3 Later that day, Justice Tormey held a hearing. Decedent s family, treating physicians, several Hospital personnel and the guardian ad litem attended the hearing, as well as defendant Winthrop H. Thurlow, Assistant Attorney General of the State of New York. During the hearing, the treating physicians informed the court that there is a fourteen-day period during which is it medically appropriate to withhold nutrition and that it was their intention to do so while continually assessing Decedent s readiness to receive nutrition. The treating physicians also testified that further treatment to provide nutrition to Decedent would result in prolonging her agony without any significant health or medical benefits. On January 4, 2000, fourteen days since Decedent had last received nutrition, the guardian ad litem and Plaintiff commenced an Article 78 proceeding and petitioned the Supreme Court of New York to enjoin permanently the State of New York, its agents, officers and/or employees from further medical intervention, nutritional sustenance, or other life-sustaining treatment for Decedent. The parties appeared in response to the Order to Show Cause, but in the interim, a compromise solution was achieved and placed upon the record in the form of a So Ordered Stipulation before Justice Tormey on January 7, The Stipulation stated that Decedent would begin to receive nutrition from a dextrose solution administered primarily through an existing IV, with a small amount added through the gastrointestinal tube. As a result of the Stipulation, the Order to Show Cause was vacated and the Article 78 proceeding was terminated. During the course of the next two months, Decedent s condition worsened. On March 1, 2000, Justice Tormey held another hearing on the matter. Testimony was received from two physicians relating to the care and condition of Decedent, as well as from a family member as to her wishes and impressions of the current and past condition of Decedent. Thereafter, the 3

4 court issued a bench decision, which was reduced to a written Order and entered with the Onondaga County Clerk on March 1, The Order directed the termination of hydration for Decedent. On March 2, 2000, hydration ceased, pursuant to Justice Tormey s Order. The Office of the Attorney General, as the attorney for the New York State Office of Mental Retardation and Developmental Disabilities, immediately filed a Notice of Appeal and sought a stay of Justice Tormey s Order until the Appellate Division, Fourth Department, could hear the case on March 7, The stay was denied and, on March 6, 2000, Decedent died. On March 5, 2001, Plaintiff filed suit in the Supreme Court of New York. The summons and complaint were served on defendants Eliot L. Spitzer, Attorney General of the State of New York, and Assistant Attorney General Thurlow ( Defendants ) on May 21, On June 11, 2001, Defendants removed the action to the United States District Court for the Northern District of New York, pursuant to 28 U.S.C Plaintiff did not oppose removal of the action. This action is a civil suit brought under 42 U.S.C alleging, inter alia, that Defendants violated Decedent s rights under the First, Fourth, Fifth, Eighth and Fourteenth Amendments of the United States Constitution. However, in its Memorandum of Law in Opposition to Defendants Rule 12(b)(6) Motion to Dismiss, Plaintiff states that the Fifth and Eighth Amendment claims will not be pursued. Plaintiff also raises pendent state claims of negligence, unlawful practice of medicine, battery, and intentional and/or reckless infliction of emotional and mental distress and anguish. Currently before this court is Defendants motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the ground that it fails to state a claim upon which relief can be granted. Plaintiff has entered opposition to this motion. DISCUSSION 4

5 A dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure is a dismissal on the merits of the action, a determination that the facts alleged in the complaint fail to state a claim upon which relief may be granted. See Teltronics Services, Inc. v. L M Ericsson Telecommunications, Inc., 642 F.2d 31, 34 (2d Cir. 1981). Such a dismissal is appropriate where it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief. Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999). Therefore, the issue before the court on such a motion is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999). The task of the court in ruling on a Rule 12(b)(6) motion is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof. Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998) (internal quotations omitted). Accordingly, in order to decide a Rule 12(b)(6) motion, the court must accept as true all of the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in a light most favorable to the non-moving party. See Harris, 186 F.3d at 247. However, a complaint which consists of conclusory allegations unsupported by factual assertions fails even the liberal standard of Rule 12(b)(6). De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 70 (2d Cir. 1996) (internal quotations omitted). When deciding a Rule 12(b)(6) motion, the court generally limits itself to the facts stated in the complaint, documents attached to the complaint as exhibits, or documents incorporated by reference in the complaint. See Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999). If the court looks to additional materials, the motion should be converted into a motion for summary judgment. See Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999). 5

6 Rule 12(b) permits the court to treat a Rule 12(b)(6) motion to dismiss as a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. The primary concern against converting a Rule 12(b)(6) motion to one for summary judgment is the potential prejudice to a party caused by lack of notice. See Kennedy v. Empire Blue Cross & Blue Shield, 989 F.2d 588, 592 (2d Cir. 1993); Fed.R.Civ.Pro. 12, advisory committee notes. Accordingly, Rule 12(b) requires that the parties receive a reasonable opportunity to present all materials pertinent to a Rule 56 motion for summary judgment. Therefore, Defendants, who are the movants in this action, shall present to the court all material pertinent to a summary judgment motion by December 3, 2001; Plaintiff shall present the pertinent material it wishes the court to consider by December 24, Defendant shall have until January 7, 2002 to reply to any pertinent material submitted by Defendants, and oral argument on the motion will be heard on January 28, 2002, at the Federal Courthouse, Albany, New York. In addition to any other pertinent material the parties may submit, both parties shall furnish the court Local Rule 7.1(a)(3) statements in accordance with the above schedule. IT IS SO ORDERED. DATED: November, 2001 Syracuse, New York HOWARD G. MUNSON SENIOR U.S. DISTRICT JUDGE 6