Opinion
9:13-CV-0252 (NAM/TWD)
11-24-2014
JOHN D. JUSTICE, Plaintiff, v. KRISTEN M. WOODLOCK, as Acting Commissioner of the New York State Office of Mental Health; DR. BRIAN BELFI; and BRIAN FISCHER, as Commissioner of the New York State Department of Corrections and Community Supervision, Defendants
APPEARANCES: JOHN D. JUSTICE 87-B-0385 Plaintiff pro se Great Meadow Correctional Facility Box 51 Comstock, New York 128 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Attorney for Defendant The Capitol Albany, New York 12223 OF COUNSEL: KEVIN M. HAYDEN, ESQ. Syracuse Regional Office 615 Erie Boulevard West, Suite 102 Syracuse, NY 13204-2465
APPEARANCES: JOHN D. JUSTICE
87-B-0385
Plaintiff pro se
Great Meadow Correctional Facility
Box 51
Comstock, New York 128
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Attorney for Defendant
The Capitol
Albany, New York 12223
OF COUNSEL: KEVIN M. HAYDEN, ESQ.
Syracuse Regional Office
615 Erie Boulevard West, Suite 102
Syracuse, NY 13204-2465
THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
I. INTRODUCTION
Pro se Plaintiff John D. Justice, an inmate presently confined in Great Meadow Correctional Facility ("Great Meadow"), filed an Amended Complaint (Dkt. No. 12) in this civil rights action, brought under 42 U.S.C. § 1983, following the dismissal without prejudice of his original Complaint on initial review pursuant to 28 U.S.C. §1915(e)(2)(B) and 28 U.S.C. §1915A. (Dkt. No. 9.) Named as Defendants in the Amended Complaint are Kristen M. Woodlock ("Woodlock"), in her official capacity as Acting Commissioner of the New York State Office of Mental Health ("OMH"), for declaratory relief; Dr. Brian Belfi ("Belfi"), Director of Legal Affairs at Kirby Psychiatric Center, for declaratory relief in his official capacity and for monetary damages in his personal capacity; and Brian Fischer (Fischer"), former Commissioner of the New York State Department of Corrections and Community Supervision ("DOCCS"). (Dkt. No. 12 at ¶ 5.) Judge Mordue dismissed the claims against Defendant Fischer without prejudice on initial review and required Defendants Woodlock and Belfi to respond to the Amended Complaint. (Dkt. No. 13.)
Plaintiff named Michael Hogan ("Hogan"), former Commissioner of the New York State Office of Mental Health, and Defendant Brian Belfi as Defendants in his original Complaint. (Dkt. No. 1 at 1-2.) On initial review, the Hon. Norman A. Mordue, Senior District Judge, dismissed the Complaint without leave to amend as against Hogan, sued only in his official capacity, on the grounds that Hogan had retired and was not a proper defendant for prospective injunctive relied. (Dkt. No. 9 at 5-6, 14.) Plaintiff was given thirty days within which to file an Amended Complaint, with Plaintiff's original Complaint to be dismissed without prejudice upon his failure to do so. Id. at 14-15.
Judge Mordue concluded on initial review of the Amended Complaint that Fischer was not a proper defendant with regard to Plaintiff's claim for prospective declaratory relief because Fischer had retired from state service prior to the time Plaintiff first brought claims against him, and dismissed the action against Fischer without prejudice. (Dkt. No. 13 at 7.)
Defendants Woodlock and Belfi have now moved to dismiss Plaintiff's Amended Complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. No. 21.) Plaintiff has opposed the motion. (Dkt. Nos. 25-28.) For the reasons explained below, the Court recommends that Defendants' motion be granted in part, and that Plaintiff's § 1983 claim against Belfi for money damages for the violation of his due process and equal protection rights under the Fourteenth Amendment to the Constitution be stayed pending resolution of the recommitment proceeding under Criminal Procedure Law § 330.20(14) presently pending in New York State Supreme Court.
In his Amended Complaint, Plaintiff has alleged that the recommitment proceeding is pending in New York State Supreme Court, Erie County. (Dkt. No. 12 at ¶ 29.) The recommitment application filed by Plaintiff also indicates that the recommitment application was brought in Supreme Court, Erie County. (Dkt. No. 5 at 5-10.) However, according to August 26, 2014, correspondence to the Court from counsel for Defendants, the recommitment proceeding is pending in Supreme Court, Washington County, under Index No. 22146. (Dkt. No. 34.)
II. ALLEGATIONS IN THE AMENDED COMPLAINT
On September 16, 1985, Plaintiff, then seventeen years old, stabbed his mother, father, and brother to death and killed an unrelated individual, Wayne Haun ("Haun"), with an automobile. (Dkt. No. 12 at ¶ 8.) A jury found Plaintiff not guilty by reason of mental disease or defect in the killing of his father and brother and on the related weapons charges (Counts 1, 3, 5, and 7). Id. Plaintiff was found guilty in the deaths of his mother and Haun and on the related weapons charges (Counts 2, 4, 6, and 8). Id. Plaintiff was sentenced to a term of twenty-five years to life for the killings of his mother and Haun, and one year on the weapons charges. Id. at ¶ 9. At the sentencing, the Court stated that: "The Court's sentences under Counts 2, 4, 6 and 8 are to be executed first and compliance with those sentences shall be deemed to satisfy the statutorily required commitments under Counts 1, 3, 5, and 7." Id.
The convictions on Counts 2, 4, 6, and 8 were reversed on appeal and the disposition on Counts 1, 3, 5, and 7 was left undisturbed. Id. at ¶ 9. At a retrial on Counts 2, 4, 6, and 8 in 1992, Plaintiff was found guilty of manslaughter in the deaths of his mother and Haun and on the related weapons charges. Id. at ¶ 10. On November 25, 1992, after the jury verdict on retrial and before re-sentencing, Plaintiff's counsel wrote to then Assistant Director of the Bureau of Forensic services for OMH, Richard Miraglia ("Miraglia"), informing him that he was in the process of preparing Plaintiff's pre-sentence memorandum and inquiring about Plaintiff's "actual status . . . specifically as to whether he is now free of Mental Hygiene, ets. (sic)."
Miraglia responded by letter of December 16, 1992, writing that "the Office of Mental Health has neither initiated nor is it aware of any pending applications pursuant to Criminal Procedure Law (CPL) 330.20." Id. at § 13. Miraglia also wrote that: "I direct your attention to the Sentence imposed by Judge McCarthy that directed Mr. Justice to be committed to OMH custody pursuant to the provisions of Article 16 of the NYS Correction law to satisfy the statutorily required commitments under Counts 1, 3, 5 and 7. Counts 1, 3, 5 and 7 refer to the charges for which Mr. Justice was found not responsible due to mental disease or defect . . . . Our records reflect that Mr. Justice received inpatient psychiatric care pursuant to Correction Law Article 16, Section 402 at Central New York Psychiatric Center." Id. According to Plaintiff, his counsel relied on the communication from Miraglia in preparing Plaintiff's pre-sentence memorandum as Miraglia knew he would. Id. at ¶14.
New York Criminal Procedure Law ("CPL") § 330.20 sets forth the procedure for dealing with the processing and commitment of individuals found not guilty or pleading not guilty by reason of mental disease or defect.
At Plaintiff's re-sentencing on January 14, 1993, he received sentences of a term of eight and one-third to twenty-five years on one of the manslaughter convictions and a term of five to fifteen years on the other, along with one year for each of the weapons charges. Id. at ¶ 15. Based upon his February 20, 1987, sentence and Miraglia's letter, Plaintiff believed that his prison sentence satisfied all statutory commitment requirements attendant to his having been found not guilty in the deaths of his father and brother by reason of mental disease or defect. Id. at ¶ 16.
Plaintiff proceeded to serve his prison sentences, and for over twelve years, Plaintiff was afforded no rights or procedural safeguards under CPL § 330.20, and no one from OMH took any action under the provision with regard to Plaintiff. Id. at ¶ 17. During that period, Plaintiff was on out-patient status for in excess of three years while in the prison population, and according to Plaintiff, he could have received a discharge order under CPL § 330.20(13) had he been subject to processing under § 330.20. Id. at ¶ 17.
Plaintiff's impending parole in 2005 received considerable media attention and led to a public outcry. Id. at ¶ 18. As a result, Miraglia and others from OMH, acting in concert with the New York State Division of Parole, sought to resurrect Plaintiff's § 330.20 status. Id. On September 8, 2005, the day before Plaintiff's scheduled release on parole, OMH filed an application for a release order pursuant to § 330.20 and a five year order of conditions under the section. Id. The order of conditions was granted in Erie County Supreme Court on January 3, 2006. Id. at ¶ 19.
Plaintiff thereafter initiated a 42 U.S.C. § 1983 action in the United States District Court for the Western District of New York to challenge the constitutionality of the imposition of § 330.20 status and an order of conditions on him. See John D. Justice v. Terry King, et al., 6:08-CV-06417-FPG-MWP (W.D.N.Y.) ("Justice v. King"). The Court takes judicial notice that in his Second Amended Complaint in Justice v. King, Plaintiff has asserted claims against Miraglia and former OMH Commissioner Hogan for violation of his substantive and procedural due process and equal protection rights under the Fourteenth Amendment by subjecting him to CPL § 330.20. (Justice v. King, Dkt. No. 414.) A motion to dismiss the Second Amended Complaint by Defendants Miraglia and Hogan, along with DOCCS employees Eugenio Russi and Thomas Tortora, is now pending in the Western District action. (Justice v. King, Dkt. Nos. 426, 448, 451.)
Plaintiff was returned to DOCCS custody on July 3, 2007, as the result of alleged parole violations. (Dkt. No. 12 at ¶ 23.) On February 23, 2011, while Plaintiff remained in DOCCS custody, the order of conditions issued under § 330.20 on January 3, 2006, was extended for five years by the New York State Supreme Court in Erie County. Id. at ¶ 24. During Plaintiff's incarceration for his parole violation, he was granted all of his good behavior allowances and was scheduled for conditional release from DOCCS on August 26, 2012. Id. at ¶ 25. OMH had not developed any discharge plans for Plaintiff and threatened him with a temporary confinement order ("TCO"), which caused Plaintiff to waive his conditional release on August 10, 2012. Id. at ¶ 26.
According to Plaintiff, after the use of TCOs was struck down as unconstitutional two months later in Robert T. v. Sproat, 955 N.Y.S.2d 134 (2d Dep't 2012), he attempted to apply for a conditional release from DOCCS pursuant to New York Penal Law § 70.40(1)(b) and New York Corrections Law § 206 on December 2, 2012. Id. at ¶ 27. Plaintiff filed a grievance after DOCCS failed to respond to his request, and the grievance was denied at all levels. Id. at ¶ 28.
Robert T. v. Sproat, 955 N.Y.S.2d 134 (2d Dep't 2012), has since been reversed by the Court of Appeals, sub nom. Allen B. v. Sproat, 991 N.Y.S.2d 386 (2014).
On February 14, 2013, Woodlock, as OMH Acting Commissioner, submitted a recommitment application with respect to Plaintiff. Id. at ¶ 29. The application was supported by the psychiatric examiner's affidavit of Defendant Belfi, in which Belfi averred, among other things, that Plaintiff suffered from an antisocial personality disorder and should be considered dangerously mentally ill, requiring involuntary commitment to a secure psychiatric facility. Id. at ¶ 30. Plaintiff has alleged that Belfi knew or should have known that the United States Supreme Court had outlawed civil commitment based on an antisocial personality disorder. Id. at ¶ 31. Therefore, according to Plaintiff, Belfi's affidavit was fraudulent and submitted in order to cause Plaintiff irreparable harm and to wrongfully deprive him of liberty in violation of the Fifth and Fourteenth Amendments, and subject him to cruel and unusual punishment in violation of the Eighth Amendment. Id.
Belfi's affidavit also is alleged by Plaintiff to state that: "Another example of [Plaintiff's] argumentative attitude is how he has filed 25 lawsuits in the last five years. He feels victimized by these individuals he is suing and claims others are conspiring to wrongfully keep him incarcerated or having to follow up with CPL 330.20 Order of Conditions. Therefore, at this time, in addition to Antisocial Personality Disorder he also espouses narcissistic and paranoid features." Id. at ¶ 32. Plaintiff claims that Belfi's statement concerning Plaintiff's numerous lawsuits demonstrates that Belfi submitted the allegedly fraudulent affidavit to retaliate against Plaintiff for the exercise of his First Amendment rights to access the courts. Id. Plaintiff further claims that the statement demonstrates an illegal attempt by Belfi to negatively impact Justice v. King. Id.
Plaintiff identifies Belfi's affidavit as the reason DOCCS did not allow him to apply for Conditional Release and claims that Belfi has caused deprivation of Plaintiff's liberty in violation of his due process rights, subjected him to cruel and unusual punishment, violated his right to equal protection, retaliated against him for exercising his First Amendment right of access to courts, and caused Plaintiff irreparable harm. Id. at ¶¶ 33-34.
III. LEGAL STANDARD GOVERNING RULE 12(b)(6) MOTIONS TO DISMISS
A defendant may move to dismiss a complaint "for failure to state a claim upon which relief can be granted" under Rule 12(b)(6). The motion tests the formal legal sufficiency of the complaint by determining whether it conforms to Federal Rule of Civil Procedure 8(a)(2), which requires that a complaint include "a short and plain statement of the claim showing that the pleader is entitled to relief." Bush v. Masiello, 55 F.R.D. 72, 74 (S.D.N.Y. 1972). Satisfaction of the requirement that a plaintiff "show" that he or she is entitled to relief requires that the complaint "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense . . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged but it has not shown that the pleader is entitled to relief." Id. at 679 (internal citation and punctuation omitted).
A complaint may be dismissed pursuant to Rule 12(b)(6) only where it appears that there are not "enough facts to state a claim that is plausible on its face." Id. at 570. While Rule 8(a)(2) "does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me-accusation." Iqbal, 556 U.S. at 678 (citation and internal quotation marks omitted). A complaint which "tenders 'naked assertion[s]' devoid of 'further factual enhancement'" does not suffice. Id. (citation omitted)
"In reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.
In considering a Rule 12(b)(6) motion, "the court considers the complaint, any written documents attached to them, and any matter of which the court can take judicial notice for the factual background of the case." L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (citation and internal quotation marks omitted); see also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991) (A court may consider "any written instrument attached [to the complaint] as an exhibit or documents incorporated in it by reference."). "The mandate to read the papers of pro se litigants generously makes it appropriate to consider a plaintiff's papers in opposition to a defendant's motion to dismiss as effectively amending the allegations of the plaintiff's complaint, to the extent that those factual allegations are consistent with the allegations of the Plaintiff's complaint." Robles v. Bleau, No. 07-CV-0464, 2008 WL 4693153, at *6 and n.41, 2008 U.S. Dist. LEXIS 110029, at *26-27 and n.41 (N.D.N.Y. Oct. 22, 2008) (collecting cases); Donhauser v. Goord, 314 F. Supp. 2d 119, 121 (N.D.N.Y. 2004) (where a pro se is faced with a motion to dismiss, a court may consider materials outside of the complaint "to the extent they are consistent with the allegations in the complaint."), vacated in part on other grounds, 317 F. Supp. 2d 160 (N.D.N.Y. 2004); see also Gil v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (in reviewing district court's dismissal of pro se plaintiff's claim, Second Circuit considered plaintiff's affidavit submitted in opposition to motion to dismiss). The Court has taken judicial notice of papers filed in other litigation involving Plaintiff and has considered documents in Plaintiff's submissions in opposition to the extent they are consistent with the allegations in Plaintiff's Amended Complaint.
Where a party is proceeding pro se, the court is obliged to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (courts remain obligated to construe pro se complaints liberally even after Twombly). Where a pro se complaint fails to state a cause of action, the court generally "should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation and internal quotation marks omitted). An opportunity to amend is not required where "the problem with [the plaintiff's] causes of action is substantive" such that "better pleading will not cure it." Cuoco, 222 F.3d at 112 (citation omitted).
IV. ANALYSIS
A. Younger Abstention
Plaintiff seeks what he identifies as declaratory relief against Defendants Woodlock and Belfi, declaring that the Defendants cannot proceed against him in a CPL § 330.20 recommitment application because: (1) § 330.20 was illegally added to Plaintiff's criminal sentence, in violation of CPL § 430.10 and Plaintiff's due process rights under the Fifth and Fourteenth Amendments to the Constitution; and (2) the United States Supreme Court has outlawed civil commitment based on an antisocial personality disorder. (Dkt. No. 12 at ¶ 39.) Woodlock and Belfi are asking the Court to dismiss Plaintiff's claims for injunctive relief under the Younger abstention doctrine. (Dkt. No. 21-1 at 10-11.) The Younger abstention doctrine derives from Younger v. Harris, 401 U.S. 37 (1971), and "generally requires federal courts to abstain from taking jurisdiction over federal constitutional claims that involve or call into question ongoing state proceedings." Diamond "D" Const. Corp. v. McGowan, 282 F.3d 191, 198 (2d Cir. 2002). Younger abstention is intended to give "the respect to our co-equal sovereigns that principles of 'Our Federalism' demand." Id. at 198.
Although Plaintiff has not asked for injunctive relief in his Amended Complaint, (Dkt. No. 12 at ¶¶ 39, 41), he has done so in his papers in opposition to Defendants' motion. (Dkt. No. 25 at 2.) The Younger abstention doctrine applies to claims for both declaratory and injunctive relief in any event. See Hansel v. Town Court, 56 F.3d 391, 393 (2d Cir. 1995) (citing Samuels v. Mackell, 401 U.S. 66, 73 (1971)).
Although originally formulated in the context of criminal proceedings, the Younger abstention doctrine now applies with equal force to state "civil proceedings involving certain orders that are uniquely in furtherance of the state courts' ability to perform their judicial functions." Sprint Communications, Inc. v. Jacobs, ___ U.S. ___, 134 S.Ct. 584, 588 (2013) (quoting New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U.S. 350, 368 (1989); see also Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982) ("The policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved."). Under Younger, federal courts must abstain from exercising subject matter jurisdiction over federal constitutional claims that involve or call into question ongoing state proceedings. See Younger, 401 U.S. at 43-44. Abstention is mandatory where: "(1) there is an ongoing state proceeding; (2) an important state interest is implicated; and (3) the plaintiff has an avenue open for review of constitutional claims in the state court." Liberty Mut. Ins. Co. v. Hurlbut, 585 F.3d 639, 647 (2d Cir. 2009) (quoting Philip Morris, Inc. v. Blumenthal, 123 F.3d 103, 105 (2d Cir. 1997) (internal quotation marks omitted)). Unless "state law clearly bars the interposition of the constitutional claims," and "so long as there is no showing of bad faith, harassment, or some other extraordinary circumstance that would make abstention inappropriate, the federal courts should abstain." Kirschner v. Klemons, 225 F.3d 227, 233 (2d Cir. 2000) (quoting Middlesex County, 457 U.S. at 432). Under Younger, "it is the plaintiff's burden to demonstrate that state remedies are inadequate, and defendants need not establish that state law definitively permits the interposition of constitutional claims." Spargo v. New York State Com'n on Judicial Conduct, 351 F.3d 65, 78 (2d Cir. 2003).
The state court proceeding must not only be ongoing, it must, as in this case, have been initiated "before any proceedings of substance on the merits have taken place in the federal court." Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 238 (1984) (citation and internal quotation marks omitted).
B. Applicability of Younger Abstention
Plaintiff commenced this action to challenge the constitutionality of the filing of a recommitment application under CPL § 333.20(14) by Woodlock, and Belfi's allegedly false affidavit relying upon grounds for recommitment disallowed by the Supreme Court in Foucha v. Louisiana, 504 U.S. 71, 75-78 (1992) (recognizing a violation of due process where a state continues to confine a person found not guilty by reason of mental defect or disease after that person ceases to be both mentally ill and dangerous, and finding that the state's evidence in the commitment hearing failed to establish that the petitioner was both mentally ill and dangerous as a result of his antisocial personality).
The much broader issue of whether OMH violated Plaintiff's substantive and procedural due process and equal protection rights under the Fourteenth Amendment of the Constitution by determining that he was subject to CPL § 330.20 at the time of his parole in 2005, is being litigated in the Western District of New York. (See Justice v. King, Dkt. No. 414.)
The parties acknowledge that there is an ongoing recommitment proceeding in New York State Supreme Court. (Dkt. Nos. 12 at ¶ 29; 34 at 34.) Moreover, the proceeding, commenced on February 14, 2013, was ongoing at the time this action was commenced by Plaintiff on March 6, 2013. (Dkt. No. 1.) Therefore, the first requirement for Younger abstention that there be an ongoing state court action is satisfied.
The second requirement, that an important state interest be implicated, is also satisfied. See Francis S. v. Stone, 221 F.3d 100, 112 (2d Cir. 2000) (recognizing that state recommitment order under CPL § 330.20(14) upon finding that an insanity acquittee had a dangerous mental disorder had "a direct and substantial relationship with the State's legitimate concern for the potentiality of the deterioration of the acquittee's mental condition and relapse into dangerous behavior") (internal citation and quotation marks omitted); People v. Stone, 539 N.Y.S.2d 718, 722 (1989) ("The legislative objectives of ensuring the safety of the public, safeguarding the rights of defendants found not responsible, and providing for the treatment of acquittees suffering from a current mental illness are secured by [the] recommitment provisions [of CPL § 330.20(14)] designed to ensure that all persons who develop or relapse into a dangerous mental disorder during the pendency of the order of conditions are amenable to a secure psychiatric placement.") (citing 1981 Report of NY Law Rev Common., The Defense of Insanity in New York State, 1981 McKinneys Session Laws of NY, at 2251); In re Ernst J., 739 N.Y.S.2d 737, 738 (2d Dep't 2002) ("The recommitment provisions of CPL 330.20(14) have a direct and substantial relationship with the State's interest in protecting the public safety, safeguarding the rights of insanity acquittees, and providing treatment for those acquittees who suffer from a mental illness."); see also Grist v. Norris town State Hosp., No. cv. A. 96-CV-8495, 1997 WL 661097, at *10, 1997 U.S. Dist. LEXIS 16320, at *28 (E.D. Pa. Oct. 22, 1997) (finding that involuntary commitment proceedings for persons found not guilty by reason of insanity, which were entirely controlled by Pennsylvania State law, implicated important state interests) (citing Hahnemann Univ. Hosp. v. Edgar, 74 F.3d 456, 463 (3d Cir. 1996) as recognizing the primacy of state law in the area of seeking to assure the availability of adequate treatment to mentally ill persons).
The third requirement for Younger abstention is also satisfied because Plaintiff has an avenue for review of constitutional claims raised in the recommitment proceeding in state court. Pursuant to CPL § 330.20(14), at any time while an order of conditions is in effect, the Commissioner of OMH may apply to the court that issued the order, or a superior court where the person subject to the order resides, for a recommitment order, when that person exhibits a dangerous mental disorder. See Allen B. v. Sproat, 991 N.Y.S.2d 386, 390 (2014). Under § 330.20(14), the insanity acquittee, his or her counsel, and the Mental Hygiene Legal Service must be given written notice of the recommitment application. Id. Upon receipt of the application, the court must order the insanity acquittee to appear for a hearing which must be conducted by the court to determine if he or she has a dangerous mental disorder. Id. The preponderance of the evidence standard applies to recommitment hearings. See Ernst J. v. Stone, 452 F.3d 186, 196 (2d Cir. 2006). An application for recommitment must be accompanied by the affidavit of at least one psychiatric examiner in support of recommitment. The affidavit, which must be served on the insanity acquittee, must set forth a clinical diagnosis, a detailed analysis of the insanity acquittee's mental condition that formed the basis for the examiner's opinion, and the opinion. CPL § 330.20(20). The court may direct the OMH Commissioner to designate one or more additional psychiatric examiners to conduct examinations if not satisfied, either on its own motion or upon request of a party. CPL § 330.20(15).
The written notice provided to Plaintiff advised him that "the Mental Hygiene Legal Service, which is an agency of the Supreme Court of the State of New York, has been established to provide you with assistance and information as to your rights under the law and the procedures governing your legal relationship with the New York State Office of Mental Health. You are entitled to communicate with a representative of the service at any time. . . . You have the right to a court hearing on the above application for a subsequent retention order. You have the right to be represented by counsel at such hearing and you have the right to counsel assigned by the court if you are financially unable to obtain your own lawyer." (Dkt. No. 5 at 12.)
The insanity acquittee may challenge the recommitment application on constitutional grounds in New York State court. See, e.g., Matter of Francis S., 640 N.Y.S.2d 840, 842 (1995) (insanity acquittee moved to dismiss recommitment proceeding under § 330.20(14) on the grounds that where acquittee was found not to have a dangerous mental disorder at his initial hearing, due process and equal protection principles prohibit the Legislature from denying him the procedural safeguards accorded those committed solely under the civil procedures of the New York State Mental Hygiene Law); Ernst J., 739 N.Y.S.2d at 738 (challenge by insanity acquittee to recommitment application on the grounds that the procedure, as applied to him, violated his constitutional rights to due process and equal protection).
Under CPL § 330.20, an insanity acquittee has two avenues of redress but must make an election of remedies as between the two. CPL § 330.20(21). The insanity acquittee may seek a permissive appeal to the Appellate Division under § 330.20 (21), or a rehearing and review proceeding under § 330.20(16). See Jamie v. Consilvio, 810 N.Y.S.2d 738, 744-45 (2006). Section 330.20(16) provides in relevant part that "[a]ny defendant who is in the custody of the commissioner pursuant to . . . a recommitment order, if dissatisfied with such order, may, within thirty days after the making of such order, obtain a rehearing and review of the proceedings in accordance with the provisions of section 9.35 . . . of the mental hygiene law."
Section 330.20(21)(a)(ii) provides in relevant part that "a defendant, or the mental hygiene legal service on his or her behalf, may appeal from any . . . recommitment order, or if the defendant has obtained a rehearing and review of any such order pursuant to subdivision sixteen of this section, from an order, not otherwise appealable as of right, issued in accordance with the provisions of section 9.35 . . . of the mental hygiene law, authorizing continued retention under the original order, provided, however, that a defendant who takes an appeal from a . . . recommitment order may not subsequently obtain a rehearing and review of such order pursuant to subdivision sixteen of this section." In those instances where the acquittee appeals unsuccessfully to the Appellate Division, he or she may appeal to the New York State Court of Appeals by permission of the Appellate Division or the Court of Appeals. § 330.20(21)(b).
Having determined that all three of the criteria for Younger abstention are present, and finding no factual showing of bad faith or harassment by Defendants in making the recommitment application, the Court recommends that the District Court abstain from exercising jurisdiction over Plaintiff's claims for declaratory and injunctive relief against Defendants Woodlock and Belfi. Because Plaintiff has sued Woodlock solely for declaratory and injunctive relief in her official capacity (Dkt. No. 12 at ¶ 5), the Court recommends that the Amended Complaint be dismissed with prejudice as against her. The Court further recommends that inasmuch as Plaintiff has sued Belfi in his official capacity solely for declaratory and injunctive relief, that the Amended Complaint be dismissed as against him with prejudice in his official capacity.
C. Claims for Monetary Damages Against Defendant Belfi
Plaintiff has sued Defendant Belfi in his personal capacity and seeks monetary damages against him on the grounds that: (1) Belfi's submission of a knowingly false affidavit relying improperly upon a diagnosis of antisocial personality in support of the recommitment application unlawfully denied Plaintiff the right to apply for a conditional release under Penal Law § 70.40(1)(b) and Corrections Law § 206, violating his rights to due process and equal protection under the Fourteenth Amendment, and subjecting him to cruel and unusual punishment in violation of the Eighth Amendment; and (2) Belfi's submission of the affidavit was done in retaliation for Plaintiff's exercise of his First Amendment right to access the courts for the redress of grievances. (Dkt. No. 12 at ¶¶ 37-38.)
The Second Circuit has found that abstention and dismissal under Younger are inappropriate where money damages are sought. See, e.g., Rivers v. McLeod, 252 F.3d 99, 101-02 (2d Cir. 2001) ("[A]pplication of the Younger doctrine is inappropriate where the litigant seeks money damages for an alleged violation of § 1983 . . . ."). The Second Circuit has, however, held that a stay of the claims for money damages pending resolution of the state court action may be appropriate where Younger abstention is applied to claims for declaratory and injunctive relief. Kirschner, 225 F.3d at 238 (citing Giulini v. Blessing, 654 F.2d 189, 192-94 (2d Cir. 1981)). The Supreme Court has noted that even if Younger can be applied to claims for money damages, when money damages which could not be recovered in the pending state court action are sought in a federal court action, the federal action should be stayed rather than dismissed. See Deakins v. Monaghan, 484 U.S. 193, 201-03 (1988).
Defendant Belfi seeks dismissal of Plaintiff's claims for money damages against him on the grounds that: (1) Plaintiff has failed to exhaust his administrative remedies; (2) Plaintiff has failed to state a claim for relief; and (3) Belfi is entitled to qualified immunity and the claims are premature. (Dkt. No. 21-1 at 3.) The Court has concluded that addressing and making recommendations with regard to Belfi's failure to exhaust argument and Plaintiff's cruel and unusual punishment and retaliation claims against Belfi will not have any undue impact on the pending state court recommitment proceeding.
1. Failure to Exhaust
Belfi relies upon the exhaustion requirements in the Prison Litigation Reform Act of 1996 ("PLRA"), 42 U.S.C. § 1997(e) in seeking dismissal of Plaintiff's claims against Belfi for money damages. Flaherty v. Coughlin, 713 F.2d 10, 13-14 (2d Cir. 1983). As succinctly outlined by my colleague, Magistrate Judge David E. Peebles:
The Prison Litigation Reform Act of 1996 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), which imposes several restrictions on the ability of prisoners to maintain federal civil rights actions, expressly requires that no action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. The PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. An inmate plaintiff's complaint is subject to dismissal if the evidence establishes that he or she failed to properly exhaust available remedies prior to commencing the action . . . . Proper exhaustion requires a plaintiff to procedurally exhaust his or her claims by complying with the system's critical procedural rules. Complete exhaustion has not occurred, for purposes of the PLRA, until all of the steps of that available process have been taken.Bailey v. Fortier, 09-CV-0742 (GLS/DEP), 2012 WL 6935254, at *4, 2012 U.S. Dist. LEXIS 185178, at *11-13 (N.D.N.Y. Oct. 4, 2012) (citations and punctuation omitted). Belfi has cited no authority for the application of the PLRA exhaustion requirements to Plaintiff's claims against him arising out of his submission of an affidavit in support of the OMH recommitment application under CPL § 330.20(14), and the Court has found none. Plaintiff's claims are not about circumstances or episodes involving Plaintiff's prison life but rather the recommitment proceeding in which the affidavit was submitted. Inasmuch as Belfi is not employed by DOCCS, DOCCS' well-established inmate grievance procedure found at N.Y. Comp.Codes R. & Regs. tit. 7, Part 701 (2013), would not be available to Plaintiff.
Copies of all unpublished decisions cited herein will be provided to Plaintiff in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Belfi also relies upon the decision in Pollack v. Paterson, No. 10 Civ. 6297 (JGK)(JLC), 2011 WL 710605, at *4, 2011 U.S. Dist. LEXIS 19755, at *12-13 (S.D.N.Y. Mar. 1, 2011) in support of his failure to exhaust argument. (Dkt. No. 21-1 at 14.) His argument is misplaced because Pollack was a habeas corpus proceeding in which the court found the well-established habeas exhaustion requirements applicable to insanity acquittees held pursuant to CPL § 330.20. This is a civil rights action one brought under § 1983.
Given the foregoing, Belfi is not entitled to dismissal of the money damages claims against him on failure to exhaust grounds.
2. Cruel and Unusual Punishment Claim
The Eighth Amendment prohibits the infliction of "cruel and unusual punishment." U.S. Const. amend. VIII. The Second Circuit, in addressing the needs protected by the Eighth Amendment, has stated that sentenced prisoners are entitled only to "adequate food, clothing, shelter, sanitation, medical care and personal safety." Wolfish v. Levi, 573 F.2d 118, 125 (2d Cir. 1978), rev'd on other grounds sub nom. Bell v. Wolfish, 441 U.S. 520 (1979). Not every governmental action affecting the interests or well-being of a prison inmate is actionable under the Eighth Amendment.
In his original Complaint, Plaintiff appeared to claim that Belfi's filing of an allegedly false and fraudulent affidavit in the recommitment proceeding recommending recommitment based upon Plaintiff's antisocial personality disorder constituted cruel and unusual punishment. (Dkt. No. 1 at ¶¶ 30, 31, 32 and p. 10.) On initial review, Judge Mordue found that, at best, Plaintiff's Eighth Amendment claim could be interpreted as a claim challenging his mental health treatment. (Dkt. No. 9 at 9-10.) Finding the Complaint was devoid of factual allegations that Belfi had ever treated Plaintiff, Judge Mordue dismissed Plaintiff's Eighth Amendment claim on initial review under 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A. Id. at 10.
Plaintiff was granted leave to file an amended complaint. Id. at 14. In his Amended Complaint, Plaintiff has alleged that Belfi violated his Eighth Amendment right to be free from cruel and unusual punishment by filing a knowingly false affidavit that resulted in DOCCS unlawfully denying Plaintiff the right to apply for a conditional discharge. (Dkt. No. 12 at ¶ 37.) Even assuming that Belfi, who is not a prison official, could be held liable for cruel and unusual punishment in connection with an application for Plaintiff's civil recommitment, the Eighth Amendment claim in Plaintiff's Amended Complaint does not involve a deprivation of "adequate food, clothing, shelter, sanitation, medical care and personal safety," the needs protected on an Eighth Amendment claim for cruel and unusual punishment. See Wolfish, 573 F.2d at 125. Furthermore, the Amended Complaint is devoid of specific factual allegations that would give rise to the inference that Belfi intended for his affidavit to result in Plaintiff being deprived of one of life's necessities, or that Belfi's affidavit had anything whatsoever to do with DOCCS' alleged denial of Plaintiff's right to apply for a conditional discharge.
In Farmer v. Brennan, 511 U.S. 825, 837 (1994), the Supreme Court explained that Eighth Amendment claims have both objective and subjective components. Objectively, the deprivation must be "sufficiently serious" to deny a prisoner "the minimal civilized measure of life's necessities." Id. (citation and internal quotation marks omitted). The subjective requirement, which follows the principle that "only the unnecessary and wanton infliction of pain implicates the Eighth Amendment," requires that a defendant have a state of mind of "deliberate indifference." Id. Deliberate indifference has been defined as knowledge and disregard of "an excessive risk to inmate health or safety," by an official who "is both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [who has drawn] the inference. Id. (citation omitted).
Therefore, the Court recommends that Plaintiff's Eighth Amendment claim for cruel and unusual punishment against Belfi be dismissed for failure to state a claim. The Court further recommends that because Plaintiff has already been allowed one opportunity to amend, and his Amended Complaint fails to indicate that he could state a valid Eighth Amendment claim if given a further opportunity to amend, the Amended Complaint be dismissed with prejudice. See Cuoco, 222 F.3d at 112 (requiring court to grant leave to amend at least once where a liberal reading of the complaint indicates a valid claim might be stated).
2. Retaliation Claim
Plaintiff claims that Belfi submitted a false affidavit in the recommitment proceeding in retaliation for Plaintiff's exercise of his First Amendment right to file lawsuits. (Dkt. No. 12 at ¶ 38.) The sole factual allegation in Plaintiff's Amended Complaint in support of Plaintiff's retaliation claim is Belfi's reference to Plaintiff having filed twenty-five lawsuits in the past five years. (Dkt. No. 12 at ¶ 32.) As noted above, in the Psychological Consultation Report, attached to Belfi's affidavit and quoted in part in Plaintiff's Amended Complaint, Belfi wrote: "Another example of his argumentative attitude is how he has filed 25 lawsuits in the last 5 years. He feels victimized by these individuals he is suing and claims others are conspiring to wrongly keep him incarcerated or having to follow up with CPL 330.20 Order of conditions. Therefore, at this time in addition to Antisocial Personality Disorder, he also espouses narcissistic and paranoid features." (Dkt. No. 5 at 27.)
Claims of retaliation find their roots in the First Amendment. See Gill v. Pidlypchak, 389 F.3d 379, 380-81 (2d Cir. 2004). Because of the relative ease with which claims of retaliation can be incanted, however, courts have scrutinized such retaliation claims with particular care. See Flaherty, 713 F.2d at 13. As the Second Circuit has noted,
[t]his is true for several reasons. First, claims of retaliation are difficult to dispose of on the pleadings because they involve questions of intent and are therefore easily fabricated. Second, prisoners' claims of retaliation pose a substantial risk of unwarranted judicial intrusion into matters of general prison administration. This is so because virtually any adverse action taken against a prisoner by a prison official--even those otherwise not rising to the level of a constitutional violation--can be characterized as a constitutionally proscribed retaliatory act.Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001) (citations omitted), overruled on other grounds, Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002).
To prevail on a retaliation claim under § 1983, a plaintiff must prove that: (1) the speech or conduct at issue was "protected;" (2) the defendant took "adverse action" against the plaintiff; and (3) there was a causal connection between the protected speech and the adverse action in other words, that the protected conduct was a "substantial or motivating factor" in the defendant's decision to take action against the plaintiff. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Pidlypchak, 389 F.3d at 380 (citing Dawes, 239 F.3d at 492).
Several factors may be considered in determining whether a causal connection exists between the plaintiff's protected activity and a prison official's actions. Baskerville v. Blot, 224 F. Supp. 2d 723, 732 (S.D.N.Y. 2002) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). Those factors include: (i) the temporal proximity between the protected activity and the alleged retaliatory act; (ii) the inmate's prior good disciplinary record; (iii) vindication at a hearing on the matter; and (iv) statements by the defendant concerning his or her motivation. Id. (citing Colon, 58 F.3d at 872-73). "The causal connection must be sufficient to support an inference that the protected conduct played a substantial part in the adverse action." Id. "[A] complaint which alleges retaliation in wholly conclusory terms may safely be dismissed on the pleadings alone." Flaherty, 713 F.2d at 13.
The filing of a lawsuit is a constitutionally protected activity. Baskerville, 224 F. Supp. 2d at 731 (citing Bounds v. Smith, 430 U.S. 817, 821-32 (1977). However, the wholly conclusory characterization of Belfi's reference to the lawsuits in his psychological assessment of Plaintiff as retaliatory, without any facts that would give rise to the inference that the Report was written in retaliation for the filing of the lawsuit, fails to state a plausible claim of retaliation. See Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000) (Claims of retaliation must be "supported by specific and detailed factual allegations" and not stated "in wholly conclusory terms.") (quoting Flaherty, 713 F.2d at 13); see also Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (wholly conclusory claims of retaliation "can be dismissed on the pleadings alone"); Gill, 824 F.2d at 194 (same).
The Amended Complaint is devoid of factual allegations connecting Belfi to the referenced lawsuits as a party or in any manner at all other than his consideration of the number of lawsuits commenced by Plaintiff in his psychological assessment.
When Judge Mordue dismissed Plaintiff's retaliation claim in his original Complaint on initial review under 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A, Plaintiff was granted leave to file an amended complaint. (Dkt. No. 9 at 14.) Inasmuch as Plaintiff's Amended Complaint fails to set forth anything more than a conclusory assertion that Belfi filed the affidavit in retaliation for Plaintiff's lawsuits, the Court recommends that his retaliation claim against Belfi be dismissed for failure to state a claim. The Court further recommends that because the Amended Complaint gives no indication that Plaintiff could state a claim for retaliation given yet another opportunity to amend, the dismissal be with prejudice. See Cuoco, 222 F.3d at 112.
The sole allegation supporting Plaintiff's retaliation claim against Belfi in his original Complaint was that "Dr. Belfi also made the fraudulent Physician's Affidavit in retaliation against your Plaintiff for bringing OMH to a lawsuit in Justice v. King. . . ." (Dkt. No. 1 at ¶ 31.)
3. Stay of Plaintiff's Remaining Claims
As noted above, the Second Circuit has recognized that a stay of a federal court claim for money damages may be appropriate in cases in which claims for declaratory or injunctive relief have been dismissed under the Younger abstention doctrine. See Kirschner, 225 F.3d at 238. Furthermore, the Supreme Court has indicated that where money damages sought in a federal suit cannot be obtained in the state court proceeding, the federal suit should be stayed, even if the money damages sought could be obtained in a separate state proceeding. See id. at 238, Deakins, 484 U.S. at 201-03.
Plaintiff has asserted claims for money damages against Belfi for violation of his due process and equal protection rights under the Fourteenth Amendment. (Dkt. No. 12 at ¶37.) Those claims arise out of the affidavit submitted by Belfi in the pending recommitment proceeding under CPL § 330.20(14). See CPL §§ 330.20(14) and (20).
CPL § 330.20 includes no provision for the recovery of damages by an insanity acquittee in a recommitment proceeding. Furthermore, in Justice v. State, 985 N.Y.S.2d 294 (3d Dep't 2014), lv. denied, 985 N.Y.S.2d 294 (2014), another lawsuit brought by Plaintiff, the New York court reasoned that "[b]ecause CPL 330.20 does not expressly confer upon insanity acquittees the right to seek civil damages for any failure by the Commissioner to follow the statute's provisions, recovery may be had only if a private right of action can be implied." Id. at 296 (citation and internal quotation marks omitted). The court found that an insanity acquittee has no private right of action for damages under CPL § 330.20.
Moreover, because the affidavit under attack is a statutorily required component of the pending recommitment proceeding, CPL § 330.20(20), a federal court determination of Plaintiff's money damage claims for violation of due process and equal protection, or a determination of Belfi's entitlement to qualified immunity with regard to those claims, could unduly interfere with the recommitment proceeding. See Rodgers v. Cartagena, No. 10-CV-9285(NRB), 2011 WL 724680, at *1, 2011 U.S. Dist. LEXIS 21080, at *1-2 (S.D.N.Y. Feb. 25, 2011) (staying claim for damages where proceeding with case in federal court would interfere with ongoing state court proceeding).
Therefore, the Court recommends that Plaintiff's claims for violation of his rights to due process and equal protection be stayed pending determination of the state recommitment proceeding.
ACCORDINGLY, it is hereby
RECOMMENDED, that Defendants Woodlock and Belfi's motion to dismiss pursuant to Rule 12(b)(6) (Dkt. No. 21) be GRANTED IN PART; and it is further
RECOMMENDED, that the District Court abstain under Younger from exercising jurisdiction over Plaintiff's claims for declaratory and injunctive relief against Defendants Woodlock and Belfi; and it is further
RECOMMENDED, that the Amended Complaint be DISMISSED as against Defendant Woodlock; and it is further
RECOMMENDED, that the claims asserted against Defendant Belfi in his official capacity (claims for declaratory and injunctive relief) in the Amended Complaint, be DISMISSED; and it is further
RECOMMENDED, that Plaintiff's Eighth Amendment claim for cruel and unusual punishment and First Amendment retaliation claim against Defendant Belfi be DISMISSED WITH PREJUDICE; and it is further
RECOMMENDED, that the action be stayed as to the remaining claims (claims for monetary damages against Defendant Belfi for violation of his rights to due process and equal protection under the Fourteenth Amendment) pending the determination of the CPL § 330.20(14) recommitment application proceeding now pending in New York State Supreme Court; and it is hereby
ORDERED, that the Court provide Plaintiff with copies of the unpublished decisions in Robles v. Bleau, No. 07-CV-0464, 2008 WL 4693153 (N.D.N.Y. Oct. 22, 2008); Grist v. Norris town State Hosp., No. CV. A. 96-CV-8495, 1997 WL 661097 (E.D. Pa. Oct. 22, 1997); Bailey v. Fortier, 09-CV-0742 (GLS/DEP), 2012 WL 6935254 (N.D.N.Y. Oct. 4, 2012); Pollack v. Paterson, No. 10 Civ. 6297 (JGK)(JLC), 2011 WL 710605 (S.D.N.Y. Mar. 1, 2011); and Rodgers v. Cartagena, No. 10-CV-9285, 2011 WL 724680 (S.D.N.Y. Feb. 25, 2011).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e). Dated: November 24, 2014
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge