Plaintiff Kraton McGugan appeals from the judgment of the United States District Court for the Eastern District of New York (Melangon, J.) dismissing her complaint. McGugan brought suit against Defendants Jamaica Hospital Medical Center and four of its employees — Linda L. Alda-na-Bernier, M.D., Shushan Hovanesian, M.D., Rabbi Mahmudur, M.D., and Femi Abioye, R.N. — (collectively, “Defendants”)
Wе agree with the district court that McGugan failed to allege state action for the purposes of her § 1983 claims and that she failed to allege actionable discrimination for the purposes of her § 504 claim. We therefore affirm the judgment of dismissal.
BACKGROUND
I. McGugan’s Involuntary Hospitalization
The facts, as alleged in McGugan’s complaint, are as follows.
In the early morning of July 24, 2008, McGugan boarded a red-eye flight from San Francisco to New York City (John F. Kennedy International Airport) to visit her boyfriend, Chris Tulipanov. On the plane, McGugan began coughing unсontrollably. She asked to be moved to a less crowded area of the plane to avoid bothering neighboring passengers, but a flight attendant told her to return to her seat. Still coughing, McGugan renewed her request “using stronger language.” Second Am. Compl. ¶29. The flight attendant then moved another 15 passenger, leaving McGugan in a row of seats to herself.
McGugan fell asleep and did not wake up until after the plane had landed and all the other passengers had deplaned. When she woke up, three рolice officers were standing over her. They took her to a police station at the airport for questioning and handcuffed her to the wall. After McGugan answered the officers’ questions, an unidentified man informed her that she would be taken to the Jamaica Hospital Medical Center (“JHMC”). JHMC is a private hospital that receives federal funding and is licensed by the New York State Office of Mental Health (“OMH”) to provide psychiatric services.
McGugan’s boyfriend then accompanied her in an аmbulance to the JHMC. During their ride to the JHMC, one of two government officials (defendants who are not parties to this appeal) injected McGugan with medication without her consent, after erroneously determining that she was a danger to others. The medication sedated her. When she woke up, she was restrained to a hospital bed.
When McGugan arrived at the JHMC emergency room, and while she was still sedated, the late Dr. Bacares (not a party to this action) wrote an order for the forcible administration of medication on an immediate basis for McGugan. Defendant Dr. Mahmudur also wrote an order to forcibly administer those medications on an “as needed[] basis for severe agitation.” Id. ¶ 51. Pursuant to those medication orders, Defendant Abioye injected McGugan multiple times with a combination of Haldol, Benadryl, and Ativan.
Beginning on July 25, 2008, the staff of the JHMC attempted to gather informa
Defendant Dr. Aldana-Bernier performed a psychiatric evaluation on McGu-gan while McGugan was still sedated. Bаsed on the evaluation, on Dickman’s statements, and on McGugan’s apparent uncooperative refusal to answer questions, Dr. Aldana-Bernier certified McGugan as having a mental illness likely to result in substantial harm to herself or others, thus rendering McGugan subject to involuntary admission to the JHMC under New York Mental Hygiene Law § 9.39. McGugan alleges that Dr. Aldana-Bernier’s assessment of McGugan’s dangerousness was not “minimally competent” because she failed to ask McGugan relevant questions, failed to recognize thаt McGugan’s “uncooperative” behavior was merely the result of her heavy sedation, and failed to perform an appropriate risk assessment. Id. ¶¶ 66-79. McGugan also alleges that Dr. Aldana-Bernier performed a deficient assessment because she stereotyped McGugan as dangerous based on her perception that McGugan was mentally ill.
On July 26, 2008, Defendant Dr. Ho-vanesian certified McGugan for further confinement under § 9.39, concluding that McGugan was a danger to herself or others on the basis оf Dickman’s statements. McGugan alleges that Dr. Hovanesian’s certification was also flawed in that she did not try to corroborate Dickman’s statements with McGugan. McGugan remained confined in JHMC until July 30, 2008.
McGugan alleges that had any of the defendants performed their duties properly, they would have realized that she was never a danger to herself or others and that she should never have been certified for forcible sedation or involuntary hospitalization.
II. New York State’s Regulatory Scheme for Civil Commitment
OMH has developed a regulatory framework for the evaluation, detainment, and treatment of individuals deemed to be mentally ill and dangerous. Except in rare circumstances, OMH has delegated the authority to civilly commit individuals to local hospitals — both public and private. Specifically, OMH has divided the state into “catchment areas,” each of which is covered by a designated hospital. Anyone deemed to potentially require psychiatric inpatient care is taken to the hospital covering the catchment area where he or she is located. The hospital then determines whether the individual requires inpatient care — in the case of candidates for civil commitment, by evaluating whether they pose a danger to themselves or others. If the individual merely requires inpatient care for the short term, the hospital will provide that care (voluntarily or, if necessary and appropriate, involuntarily). If he or she requires long-term inpatient psychiatric care, then he or she will be transferred to a hospitаl operated by OMH. The civil commitment system is thus coordinated among local governments, private entities, and OMH.
JHMC is a private hospital responsible for the catchment area covering John F. Kennedy International Airport.
This appeal presents two questions: (1) whether private health care professionals or a private hospital engage in state action when they forcibly medicate and hospitalize someone deemed to have a mental illness likely to result in seriоus harm; and (2) whether their failure to adequately assess that risk of harm according to proper medical standards constitutes discrimination under the Rehabilitation Act if the assessment is based on drawing stereotyped inferences from medical conditions that are appropriately considered as part of a proper assessment. Because we conclude that both questions must be answered in the negative, we affirm the judgment of the district court.
1. State Action
To state a claim under § 1983, a plaintiff must allege that defendants violated plaintiffs federal rights while acting under color of state law. See 42 U.S.C. § 1983; Washington v. County of Rock-land,
Here, the question is whether the forcible medication and hospitalization of McGugan by private health care providers can fairly be attributed to the state. Our resolution of this question is circumscribed by prior authority.
In Doe v. Rosenberg,
Because we see no basis for distinguishing or overruling Rosenberg, we are compelled to agree with the district court that McGugan has not alleged state action. Here, as in Rosenberg, the state endowed Defendants with the authority to involuntarily hospitalize (and medicatе) the plaintiff, but it did not compel them to do so. Here, as in Rosenberg, although Defendants operated in a highly regulated context, the nexus between their challenged conduct and the state was insufficiently close for the conduct to qualify as state action. And finally, if the conduct in Rosenberg was not traditionally within the
McGugan urges us not to follow Rosenberg for four reasons, none of which has merit. First, she argues that this case is unlike Rosenberg because her involuntary hospitalization occurred аfter state actors transported her to JHMC. We do not see how these allegations, without more, could affect the state action analysis here. McGugan does not allege that the state actors requested, much less compelled JHMC or its staff to involuntarily hospitalize her. Nor can we discern any other reason why the conduct of private actors should become attributable to the state merely because it follows in time the conduct of state actors.
Second, McGugan argues that, unlike in Rosenberg, she was hospitаlized pursuant to a “complex scheme for evaluating, detaining and treating people with mental illness.” McGugan has not, however, alleged a meaningfully different scheme than the one at issue in Rosenberg. In Rosenberg, the plaintiff was involuntarily hospitalized pursuant to a scheme where hospitals, subject to extensive regulation by the state, were permitted to detain patients certified to require involuntary treatment. See Rosenberg,
Third, McGugan argues that Rosenberg is no longer binding precedent because of three intervening decisions. The first decision, Fabrikant v. French,
Finally, McGugan argues that the reasoning of Rosenberg was flawed. We are not confident that McGugan has identified any fatal flaws in its reasoning. But even if we thought so, Rosenberg is precedent of our Circuit, which is binding on us. Arguments that Rosenberg was wrongly decided should either be made in a petition to our Circuit for en banc review, or to the Supreme Court. See United States v. Wilkerson,
We сonclude under the governing precedent of this Circuit that McGugan has failed to allege state action on the part of Defendants and that she has consequently failed to state a claim against them under 42 U.S.C. § 1983.
II. Section 504 Discrimination
Circuit precedent is less clear with respect to MeGugan’s Rehabilitation Act claim. The crux of her claim is that JHMC discriminated in violation of § 504 of the Act by concluding that McGugan posed a risk of serious harm based on stereotyping persons who suffer from mental illness, rather than making a medically appropriate, individualized assessment.
Section 504 provides, in pertinent part, that “[n]o otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assis-tance____” 29 U.S.C. § 794(a). The statute on its face prohibits three types of conduct that adversely affect a disabled person who is qualified for the statute’s prоtection when the adverse conduct is motivated by the subject’s disability. Those are (1) exclusion from participation in a federally funded program or activity, (2) denial of benefits of a federally funded program or activity, and (3) subjection to discrimination under a federally funded program or activity. McGugan alleges only the third type of conduct — subjection to discrimination under a federally funded program or activity. The question we face is whether MeGugan’s complaint asserts an actionable сlaim that she was subject to “discrimination” by reason of her disability.
The term “discrimination” is potentially confusing in the context of medical treatment. The word has two very different significations — one positive, the other pejorative. In its positive sense, one discriminates by drawing distinctions that are relevant to the qualities or characteristics of the thing observed. In its negative or pejorative sense, one discriminates by withholding advantages or inflicting disadvantages on the basis of irrelevant criteria, under the influеnce of irrational bias.
Thus in United States v. University Hospital,
Our holding in Green v. City of New York,
McGugan contends that Green supports her position. In both cases, she argues, the defendants, acting on the basis of stereotyping of persons with mental illness, improperly disregarded the plaintiffs’ refusal to consent to the forcible treatment. But the two cases are importantly different for purposes of Section 504. In the present case, in order to determine whether to hospitalize McGugan, JHMC was required to evaluate whether she had a mental illness likely to result in serious harm to hеrself or others. It concluded that she did, based on evidence that: (1) she did not know who she was presently dating; (2) she had acted violently toward her ex-boyfriend; (3) she could not or would not answer the questions she was asked during the evaluation; and (4) she was arrested by the police on the complaint of flight personnel upon landing at JFK Airport after a commercial flight. Even if, as McGugan alleges, this evidence is not sufficient to support a minimally competent conclusion, McGugan has not plausibly alleged that the dеcision was based on improper considerations, unrelated to determining whether she had a mental illness likely to result in serious harm to herself or others. Accordingly, while she may have alleged medical malpractice,
McGugan also cites Bolmer v. Oliveira,
We disagree. Bolmer is susceptible of at least two interpretations. McGugan asks us to read Bolmer as support for the proposition that doctors discriminate under the ADA whenever they forcibly hospitalize a patient on the basis of stereotypes about that patient’s mental illness, even if the stereotypes pertain to matters appropriately considered in deciding whether to involuntarily hospitalize a patient. Undеr this reading, our holding in Bolmer would be incompatible with the prior holding of University Hospital. But it is also possible to read Bolmer as meaning that the defendants discriminated against the plaintiff because they assumed, on the basis of stereotypes, that no case worker would have had a sexual relationship with a person suffering from bi-polar disorder, so that the plaintiffs claim of such a relationship must have been the result of erotoma-niac delusions. Under this latter reading, the plaintiff stated a claim for discrimination because his bi-polar disorder was irrelevant to whether he had a sexual relationshiр with his case worker or whether he had erotomaniac delusions.
Although the first reading of Bolmer would be plausible if one read Bolmer on a stand-alone basis, such a reading would
We therefore think the better reading of Bolmer is the second. We understand Bolmer to hold that, as in Green and University Hospital, a plaintiff pleads an actionable claim of discrimination in the medical treatment context under the ADA or the Rehabilitation Act if she alleges that the defendants made treatment decisions based on factors that are “unrelated to, and thus improper to consideration of’ the inquiry in question. This reading accords Bolmer with University Hospital and prevents an interpretation of the Rehabilitation Act that would federalize many (if not most) claims for medical malpractice.
In light of our reading of Bolmer, Green, and University Hospital, the district court’s dismissal of MeGugan’s Rehabilitation Act claim must be affirmed. MсGugan has not plausibly alleged that Defendants forcibly medicated and hospitalized her on the basis of considerations that were “unrelated to” or “improper to consideration of’ the likelihood that she posed a danger to herself or others. Because she failed to make such allegations, she has not stated a claim of discrimination under the Rehabilitation Act. McGugan cannot alter this conclusion by characterizing JHMC’s conduct as based on discriminatory stereotyping of people with mental illness. If JHMC’s decision was based on stereotyping, it was based on stereotyping of conditions that were appropriate to consider in making the ultimate determination to hospitalize. Accordingly, while McGu-gan may have alleged negligent medical treatment, she has not alleged actionable discrimination under § 504 of the Rehabilitation Act.
CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Notes
. McGugan also sued five other defendants who are not relevant to this appeal.
. “We review de novo a district court’s dismissal of a complaint under Rule 12(b)(6), accepting the complaint’s factual allegations as true and drawing all reasonable inferences in the plaintiff’s favor.” Starr Int’l Co. v. Fed. Reserve Bank of N.Y.,
. See Discrimination, n., Oxford English Dictionary Online, http://www.oed.com/view/ Entry/54060PredirectedFrom=discrimination (last visited April 16, 2014) ("1. a. The action of perceiving, noting, or making a distinction between things.... 6. Unjust or prejudicial treatment of a person or group, esp. on the grounds of race, gender, sexual orientation, etc.”).
. While "therе are subtle differences between ... the standards adopted by Title II of the ADA for State and local government services ... [and] those required under section 504 of federally assisted programs and activities, ... unless one of those subtle distinctions is pertinent to a particular case, we treat claims under the two statutes identically.” Henrietta D. v. Bloomberg,
. Although the opinion of the court of appeals in Bolmer used the term "mental illness” and did not refer to "bi-polar disorder,” the diagnosed mental illness was bi-polar disorder. See Mem. Opp’n Summ. J. 2, Bolmer v. Oliveira, 570 F.Supp.2d 301 (D.Conn.2008) (No. 06-cv-235).