Summary
determining that the court could consider reliance on advice of counsel in a qualified immunity defense
Summary of this case from DeFerio v. City of SyracuseOpinion
Civil Action No. 9:10-CV-1409
07-05-2012
DAVID McCHESNEY, Plaintiff, v. SAMUEL BASTIEN, IV, Defendant.
FOR PLAINTIFF : DAVID McCHESNEY, Pro Se FOR DEFENDANT : HON. ERIC T. SCHNEIDERMAN Attorney General of OF COUNSEL MICHAEL McCARTIN, ESQ. Assistant Attorney General
(GTS/DEP)
APPEARANCES: FOR PLAINTIFF: DAVID McCHESNEY, Pro Se FOR DEFENDANT: HON. ERIC T. SCHNEIDERMAN
Attorney General of
OF COUNSEL: MICHAEL McCARTIN, ESQ.
Assistant Attorney General
DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Plaintiff David McChesney, a convicted sex offender who has been civilly committed to the Central New York Psychiatric Center ("CNYPC") for participation in sex offender treatment, has commenced this action pursuant to 42 U.S.C. § 1983 claiming violation of his civil rights stemming from his ongoing confinement following expiration of his prison sentence. In his complaint - one of several filed by McChesney in this court - plaintiff alleges a single cause of action for deprivation of liberty without due process of law based upon his alleged involuntary detention at another psychiatric facility operated by the New York State Office of Mental Health ("OMH") for a period of sixty days, from October 5, 2007 until December 4, 2007. As relief, plaintiff seeks compensatory damages in the sum of $500 for each day of confinement, with interest.
Plaintiff has commenced seven separate actions in this court related to his involuntary civil confinement. In McChesney v. Hogan, et al., No. 9:08-CV-0163 (filed Feb. 11, 2008), plaintiff complained of various policies at the CNYPC ranging from those addressing receipt of food packages and telephone access to mail censorship and the use of short chain restraints, and maintained that the adoption and implementation of those policies by the various defendants named in his complaint resulted in violation of his rights under the First, Fourth, Eighth, and Fourteenth Amendments. That action resulted in the entry of summary judgment dismissing plaintiff's claims. See id. at Dkt. Nos. 49 and 50. In McChesney v. Miller, et al., No. 9:08-CV-0195 (filed Feb. 21, 2008), plaintiff asserted a medical indifference claim under the Eighth Amendment. McChesney voluntarily dismissed that action, and judgment was entered in favor of the defendants. See id. at Dkt. Nos. 5 and 6. In McChesney v. Hogan, et al., No. 9:08-CV-0563 (filed June 10, 2008), plaintiff alleged three instances on which he was assaulted by fellow patients on two separate days, and argued that the attacks resulted from defendants' failure to properly protect him from harm in violation of his constitutional rights. The complaint in that action was dismissed upon defendants' motion for summary judgment, and judgment was entered in favor of defendants. See id. at Dkt. Nos. 36 and 37. In McChesney v. Hogan, et al., No. 9:08-CV-1186 (filed Nov. 6, 2008) and McChesney v. Hogan, et al., No. 9:08-CV-1290 (filed Nov. 28, 2008) plaintiff claimed, inter alia, that the Sex Offender Treatment Program ("SOTP") administered at the CNYPC is predicated in part upon religious tenets, and he is being forced, contrary to his beliefs as an atheist, to practice religion in violation of his First Amendment rights. The first filed of those two actions remains pending, and the second was dismissed and judgment entered in favor of the defendants. See McChesney v. Hogan, et al., No. 9:08-CV-1290, at Dkt. No. 9. In McChesney v. Bastien, No. 9:10-CV-0047 (filed Jan. 13, 2010), plaintiff alleged the same claim as in the instant action. After the defendant moved to dismiss, the action was dismissed without prejudice at plaintiff's request. See id. at Dkt. No. 11.
Defendant has moved for summary judgment seeking dismissal of the complaint as a matter of law on the grounds that 1) the facts demonstrate that plaintiff did not suffer a deprivation of a constitutional right; 2) plaintiff has failed to demonstrate defendant's personal involvement in the alleged constitutional violation; and, 3) in any event, defendant is entitled to qualified immunity from suit. For the reasons set forth below, I recommend that defendant's motion be denied. I. BACKGROUND
In light of the procedural posture of the case the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in favor of the plaintiff. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
The facts relevant to plaintiff's single due process claim are largely undisputed. Instead, both the complaint and defendant's motion present narrow issues of law relating to plaintiff's civil confinement for a discreet period of time following the expiration of his initial commitment order.
Plaintiff was released from a New York State prison facility on April 6, 2007, following completion of a two-year sentence for violating parole. Upon completion of his prison sentence, plaintiff consented to an order, issued on April 5, 2007 by the New York State Supreme Court pursuant to New York Correction Law § 402, authorizing his transfer out of the New York State prison in which he was then incarcerated and his commitment to a facility operated by the OMH., Defendant's Rule 7.1(a)(3) Statement of Undisputed Material Facts ("Local Rule 7.1(a)(3) Statement") (Dkt. No. 12-9) ¶ 3. At the time, plaintiff was transferred into the Saint Lawrence Psychiatric Center ("SLPC"). Id. The April 5, 2007 commitment order authorized plaintiff's retention until October 5, 2007.
New York Correction Law § 402 outlines the procedures to be followed for the commitment of a mentally ill inmate, requiring that the prison superintendent must first apply to the court for appointment of two examining physicians, and then petition the court again for a commitment order, providing a copy of the petition to the inmate, the inmate's friend or relative, and to the Mental Hygiene Legal Service. See N.Y. Corr. Law § 402; see also Harkavy v. Consilvio ("Harkavy I"), 7 N.Y.3d 607, 612, 825 N.Y.S.2d 702, 859 N.E.2d 508 (2006). The Correction Law also provides the inmate with an opportunity to request a hearing before a judge after receiving a copy of the petition but before being committed to a psychiatric hospital.
On September 21, 2006, the New York Court of Appeals issued its decision in Harkavy I, holding that the Correction Law protocol, rather than procedure outlined in New York Mental Hygiene Law ("MHL") Article 9, was the appropriate mechanism, absent any clear legislative directive, for seeking authorization for the involuntary civil commitment of a convicted sex offender nearing release from incarceration for treatment. See Harkavy I, 7 N.Y.3d at 614, 825 N.Y.S.2d 702, 859 N.E.2d 508.
In the wake of a decision of the New York Court of Appeals disapproving of the use of the procedures set forth in Mental Hygiene Law ("MHL") Article 9 for civil confinement of convicted sex offenders, see Harkavy I, 7 N.Y.3d at 614, 825 N.Y.S.2d 702, finding, inter alia, "[t]hat recidivistic sex offenders pose a danger to society that should be addressed through comprehensive programs of treatment and management[,]" the New York State Legislature enacted MHL Article 10, known as the Sex Offender Management and Treatment Act ("SOMTA"). The SOMTA created a new statutory scheme of procedures to be used with respect to convicted sex offenders requiring civil commitment or supervision following completion of their prison terms and became effective on April 13, 2007, just days after the Supreme Court's issuance of its order authorizing plaintiff's involuntary commitment pursuant to Correction Law § 402. That new statutory regimen provides elaborate measures both for "case review" of the "detained sex offender", also known as the "respondent", before his or her release from civil confinement to determine whether further confinement under the SOMTA is necessary, as well as for detention beyond a specified release date, if necessary, before such case review is complete.
See generally N.Y. Mental Hyg. Law Art. 9; see also Mental Hygiene Legal Servs. v. Cuomo, 785 F. Supp. 2d 205, 210 (S.D.N.Y. Mar. 29, 2011); Harkavy v. Consilvio ("Harkavy II"), 8 N.Y.2d 645, 653, 870 N.E.2d 128 (2007).
Pursuant to the MHL, "a person who is a detained sex offender [is] suffering from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility." N.Y. Mental Hyg. Law § 10.03 (e).
[W]hen a "detained sex offender" nears release from confinement or parole, a "multidisciplinary staff" provides a "preliminary review" to determine whether that person should be referred for more extensive evaluation. [MHL] § 10.05(d). If they determine that additional evaluation is necessary, a "case review team" of three individuals, at least two of whom must be mental health professionals, determines whether that person (termed a "respondent" upon referral to the case review team) requires additional "civil management." [MHL] § 10.06(a). Additionally, "notice of referral shall be provided to the respondent." [MHL] § 10.05(e).Cuomo, 785 F. Supp. 2d at 211. In the event that the detained person is released or nearing release before completion of the case review, the New York State Attorney General may file a securing petition to continue that person's confinement pending completion of the case review. See N.Y. Mental Hyg. Law § 10.06(f); see also David NN. v. Hogan, 53 A.D.3d 841, 845 n.3, 826 N.Y.S.2d 150 (3d Dep't 2008), lv. denied, 11 N.Y.3d 708, 897 N.E.2d 1084 (2008). The filing of such a petition triggers the respondent's right to a probable cause hearing, which must be held within seventy-two hours, to determine if cause exists to detain the respondent pending a trial. See id. at § 10.06(h).
In the case at bar, although the case review process apparently had begun before the expiration of the April 5, 2007 commitment order on October 5, 2007, it had not been completed, and plaintiff had not been notified that a review of his status had been referred to a case review team. Defendant's Local Rule 7.1(a)(3) Statement (Dkt. No. 12-9) ¶ 6. Likewise, the State did not make any effort to file a securing petition before October 5, 2007, and no hearing was held to determine whether there was probable cause to continue plaintiff's civil confinement at the SLPC pending completion of the case review.
Five days after the expiration of the original order of commitment, on October 10, 2007, an attorney with Mental Hygiene Legal Services sent defendant a letter on plaintiff's behalf advising that McChesney was aware that, in accordance with the April 5, 2007 order, his involuntary commitment status had expired, but that he desired to remain at the SLPC as a voluntary patient, "consistent with his original decision to consent to the 402 retention order. . .." Bastien Decl. (Dkt. no. 12-2) Exh. B. The letter included a Voluntary Request for Hospitalization, signed by McChesney on October 10, 2007, and further stated, "[p]lease note that Mr. McChesney is making this request for voluntary admission [pursuant to MHL § 9.21] based on his realization that he is in need of further treatment for his maladaptive behaviors, and his desire to avoid litigation concerning his legal status while being held at SLPC." Id. Upon receipt of this correspondence, defendant consulted with OMH counsel and was advised that plaintiff's current retention was lawful, and that conversion of plaintiff's status to voluntary was unnecessary. Bastien Decl. (Dkt. No. 12-2) ¶ 10.
Section 9.21 provides, in pertinent part, that
[a] person requesting admission to a hospital, who is suitable for admission on a voluntary or informal status, shall be admitted only on such a voluntary or informal status. The hospital shall, in such case, have the discretion to admit the person on either such status, except that, if the person specifically requests admission on an informal status and is suitable therefor, he shall be admitted only on such informal status.N.Y. Mental Hyg. Law § 9.21(c).
On November 20, 2007, plaintiff filed a petition with New York State Supreme Court, St. Lawrence County, pursuant to Article 78 of the New York Civil Practice Law and Rules, seeking an order requiring the defendant, as director of the SLPC, to "discontinue [his] illegal retention of petitioner and permit petitioner to voluntarily apply for and be admitted under a voluntary status to the [SLPC] pursuant to the provisions of MHL article 9 for voluntary admission. . .." Complaint (Dkt. No. 1) Exh. C; Bastien Decl. (Dkt. No. 12-2) Exh. C. The Supreme Court granted McChesney's petition on Friday, November 30, 2007, and ordered the OMH to immediately release plaintiff from the SLPC to the Division of Parole, or if plaintiff so chose, to be voluntarily committed at the SLPC. Complaint (Dkt. No. 1) Exh. C; Bastien Decl. (Dkt. No. 12-2) Exh. C. When defendant failed to comply with that directive, on December 4, 2007, McChesney obtained a second order from that court, requiring the OMH to comply with the prior order and immediately release him. David NN., 53 A.D.3d at 841, 862 N.Y.S.2d 150. At that time, the Supreme Court refused the Attorney General's request to review and sign an order to show cause allowing the OMH to hold McChesney pending an MHL Article 10 review. See id. In accordance with the second order issued by the Supreme Court, plaintiff was released into the custody of the Division of Parole on December 4, 2007. Defendant's Local Rule 7.1(a)(3) Statement (Dkt. No. 12-9) ¶ 21.
Because he had left his office no later than 5:15 p.m. that evening, defendant evidently did not receive notice of the order, which was sent to him by e-mail at 5:15 p.m., until Monday, December 3, 2007. Bastien Dec. (Dkt. No. 12-2) ¶ 12.
On December 7, 2007, McChesney filed a petition seeking a writ of habeas corpus from the Supreme Court. David NN., 53 A.D.3d at 842, 862 N.Y.S.2d 150. At that time, the court held an MHL Article 10 probable cause hearing before ruling on the petition and, finding probable cause to believe that petitioner was a "sex offender requiring civil management", directed that McChesney be held in an OMH facility pending trial, and dismissed his petition as moot. Id. That decision was affirmed upon McChesney's appeal to the Appellate Division, Third Department. 53 A.D.3d 841, 842 862 N.Y.S.2d 150. Many of the facts set forth herein were also recited in the decision of the Third Department. See generally id. It is worth noting that under the doctrine of collateral estoppel, or claim preclusion, once a court has decided an issue of fact or law necessary to its judgment, a party to the first action, or one in privity with the party, cannot relitigate that specific issue in a subsequent lawsuit. Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 414 (1980); Burgos v. Hopkins, 14 F.3d 787, 792 (2d Cir. 1994); Ryan v. N.Y. Telephone Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487, 490 (1984). Under New York law, collateral estoppel applies only if 1) the issue in question was necessarily decided in the prior proceeding and is decisive of the present proceeding; and 2) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding. Burgos, 14 F.3d at 792; Khandhar v. Elfenbein, 943 F.2d 244, 247 (2d Cir.1991). Applying collateral estoppel to the instant action, it would thus appear that both plaintiff and defendant, who were parties to that proceeding, are bound by the facts set forth in the decision of the Third Department.
On December 5, 2007, the OHM obtained an ex parte order to show cause from a different New York State Supreme Court justice, located in Chemung County, authorizing plaintiff's confinement at a different OMH facility pending an MHL Article 10 probable cause hearing. David NN., 53 A.D.3d at 842, 862 N.Y.S.2d 150; see also Defendant's Local Rule 7.1(a)(3) Statement (Dkt. No. 12-9) ¶ 22. As a result, McChesney was involuntarily admitted to an OMH facility pursuant to that order. David NN., 53 A.D.3d at 842, 862 N.Y.S.2d 150
II. PROCEDURAL HISTORY
On November 22, 2010, plaintiff commenced this action asserting a single claim for violation of his right to due process in association with his detention at the SLPC from October 5, 2007 to December 4, 2007. Issue was joined by defendant's service of an answer on May 16, 2011. See Dkt. No. 9.
Following the completion of pretrial discovery, defendant filed the pending motion for summary judgment on December 9, 2011, arguing that he is entitled to dismissal of plaintiff's complaint as a matter of law on the grounds that 1) plaintiff cannot show that his constitutional rights were violated; 2) defendant was not personally involved in any alleged constitutional violation; and, 3) even if a violation occurred, defendant is entitled to protection from liability under the doctrine of qualified immunity. Despite the fact that the deadline for opposing defendant's motion has long since passed, plaintiff has failed to respond to that motion. Defendant's motion, which is now ripe for determination, has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Summary Judgement Standard
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, summary judgment is warranted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986); Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material", for purposes of this inquiry, if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S. Ct. at 2510; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S. Ct. at 2510.
A moving party seeking summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4, 106 S. Ct. at 2511 n.4; Security Ins., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material issue of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324, 106 S. Ct. at 2553; Anderson, 477 U.S. at 250, 106 S. Ct. at 2511. Though pro se plaintiffs are entitled to special latitude when defending against summary judgment motions, they must establish more than mere "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986); but see Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999) (noting obligation of court to consider whether pro se plaintiff understood nature of summary judgment process).
When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences from the facts, in a light most favorable to the nonmoving party. Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). Summary judgment is warranted only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. See Building Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002) (citation omitted); see also Anderson, 477 U.S. at 250, 106 S. Ct. at 2511 (summary judgment is appropriate only when "there can be but one reasonable conclusion as to the verdict").
B. Legal Significance of Plaintiff's Failure to Properly Respond to Defendant's Local Rule 7.1(a)(3) Statement
Plaintiff has neither opposed defendant's motion, nor responded to defendant's Statement of Undisputed Material facts, as required by Local Rule 7.1(a)(3). Before turning to the merits of plaintiff's claims, the court will therefore address as a threshold matter the legal significance of his failure to properly respond to that statement.
The consequences of this failure are potentially significant. By its terms, Local Rule 7.1(a)(3) provides that "[t]he Court shall deem admitted any facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." N.D.N.Y.L.R. 7.1(a)(3). Courts in this district have routinely enforced Rule 7.1(a)(3) and its predecessor, Rule 7.1(f), by deeming facts admitted upon an opposing party's failure to properly respond. See, e.g., Elgamil v. Syracuse Univ., No. 99-CV-611, 2000 WL 1264122, at *1 (N.D.N.Y. Aug. 22, 2000) (McCurn, S.J.) (listing cases); see also Monahan v. New York City Dep't of Corr., 214 F.3d 275, 292 (2d Cir. 2000) (discussing district courts' discretion to adopt local rules like 7.1(a)(3)).
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
As to any facts not contained in the defendants' Local Rule 7.1(a)(3) statements, I will assume for purposes of this motion that plaintiff's version of those facts is true, as plaintiff is entitled to the benefit of all inferences at this stage. Wright v. Coughlin, 132 F.3d 133, 137 (2d Cir. 1998).
Undeniably, pro se plaintiffs are entitled to some measure of forbearance when defending against summary judgment motions. See Jemzura v. Public Serv. Comm'n, 961 F. Supp. 406, 415 (N.D.N.Y. 1997) (McAvoy, C.J.). The deference owed to pro se litigants, however, does not extend to relieving them of the ramifications associated with a failure to comply with the court's local rules. See Robinson v. Delgado, No. 96-CV-169, 1998 WL 278264, at *2 (N.D.N.Y. May 22, 1998) (Pooler, J. & Hurd, M.J.); Cotto v. Senkowski, No. 95-CV-1733, 1997 WL 665551, at *1 (N.D.N.Y. Oct. 23, 1997) (Pooler, J. & Hurd, M.J.); Wilmer v. Torian, 980 F. Supp.106, 106-07 (N.D.N.Y. 1997). Thus, "a pro se litigant is not relieved of the duty to meet the requirements necessary to defeat a motion for summary judgment." Latouche v. Tompkins, No. 9:09-CV-308, 2011 WL 11003045, at *1 (N.D.N.Y. Mar. 23, 2011) (Mordue, C.J.) (citing Nealy v. U.S. Surgical Corp., 587 F. Supp. 2d 579, 583 (S.D.N.Y. 2008) and Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003)). Where a plaintiff has been specifically notified of the consequences of failing to respond to a movant's Local Rule 7.1(a)(3) Statement but has failed to do so, and the facts contained within that statement are supported by the evidence in the record, the court will accept such facts as true. Id. (citing Littman v. Senkowski, 2008 WL 420011, at *2 (N.D.N.Y. 2008) (citing Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996)).
With his motion defendant served a court-authorized notice specifically warning plaintiff of the consequences of his failure to properly respond to defendant's Local Rule 7.1(a)(3) Statement. That form advised the plaintiff as follows:
Northern District of New York Local Rule 56.2 mandates that when summary judgment is sought against a pro se litigant the moving party must notify that pro se litigant of the consequences of failing to respond to the motion. See N.D.N.Y.L.R. 56.2. The local rule also advises that a sample notice can be obtained through the court.
Pursuant to Local Rule 7.1 of the Northern District, you are required to submit the following papers in opposition to this motion (1) a memorandum of law (containing relevant factual and legal argument); (ii) one or more affidavits in opposition to the motion and (iii) a short and concise statement of material facts as to which you claim there are genuine issues in dispute. These papers must be filed and served in accordance with the time set by Local Rule 7.1.Notification of Consequences of Failing to Respond to a Summary Judgment Motion (Dkt. No. 12-1) (emphasis in original). The notification continued, warning the plaintiff as follows:
If you do not submit a short and concise statement of material facts as to which you claim there are general issues in dispute, all material facts set forth in the statement filed and served by defendant(s) shall be deemed admitted.Id..
The court notes that, although tracking the language of a previous court-approved iteration, the court has revised the form, and the form used by defendant is not the current court-approved notification. The changes made, however, are not so material as to provide a basis to relieve the plaintiff from the consequences of his failure to respond to Defendant's Local Rule 7.1(a)(3) Statement.
As the foregoing reflects, the plaintiff was squarely put on notice of the consequences of his failure to respond to defendant's motion. In view of the foregoing, despite plaintiff's pro se status, I recommend that the court accept defendant's assertions of facts as set forth in his Local Rule 7.1(a)(3) Statement as uncontroverted when considering the pending motion.
C. Procedural Due Process
The sole claim alleged in plaintiff's complaint is that he was denied liberty without due process of law when he was held at the SLPC for the sixty- day period from October 5, 2007 until his eventual release on December 4, 2007, following the expiration of the original April 5, 2007 commitment order. In his motion, defendant contends that he entitled to summary judgment with respect to this claim because McChesney's commitment was legally authorized by the April 5, 2007 commitment order, which was obtained upon plaintiff's consent, and any violation of the provisions of MHL Article 10 in association with the effort to obtain a substitute order of retention fails to support a cognizable claim under section 1983. The essence of defendant's argument appears to be that as a detained sex offender, plaintiff does not enjoy a protectible liberty interest.
It seems clear that at all times relevant, plaintiff was, as defendant asserts, a "detained sex offender" as defined by the SOMTA. See State of New York v. Blair, 69 A.D.3d 15, 16, 887 N.Y.S.2d 389 (4th Dep't 2009). Nonetheless, the plaintiff's retention beyond October 6, 2007 is entirely separate from that originally authorized by the Supreme Court, and its legality must be separately analyzed. See David NN., 53 A.D.3d at 844, 862 N.Y.S.2d 150. Moreover, as will be seen, in this court's view it does not follow that as a detained sex offender plaintiff did not have a protectible liberty interest in being free from involuntary civil commitment.
1. Failure to Follow MHL Article 10
At the outset, defendant correctly observes that to state a valid claim under section 1983, "a plaintiff must allege that (1) the challenged conduct was attributable at least in part to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States." Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999) (citing Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993)). "A violation of a state law or regulation, in and of itself, does not give rise to liability under 42 U.S.C. § 1983." Cusamano v. Sobek, 604 F. Supp. 2d 416, 482 (N.D.N.Y. 2009) (Suddaby, J.) (collecting cases). Accordingly, defendant's admitted failure to follow the procedures for case review and retention as set forth in the SOMTA alone is insufficient to support a section 1983 cause of action.
Plaintiff's claim in this action, however, is not premised merely upon defendant's failure to comply with the provisions of MHL Article 10. Instead, is seems quite clear that McChesney's section 1983 claims rests upon defendant's alleged failure to provide him with due process before detaining him beyond October 5, 2007.
To successfully state a claim under 42 U.S.C. § 1983 for denial of procedural due process, a plaintiff must show that he or she 1) possessed an actual liberty interest, and 2) was deprived of that interest without being afforded sufficient procedural safeguards. See Tellier v. Fields, 280 F.3d 69, 79-80 (2d Cir. 2000) (citations omitted); Hynes v. Squillace, 143 F.3d 653, 658 (2d Cir.), cert. denied, 525 U.S. 907, 119 S. Ct. 246 (1998); Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir. 1996). The threshold inquiry, then, turns upon whether the plaintiff possessed a cognizable liberty interest. See Vitek, 445 U.S. at 487, 100 S. Ct. at 1261.
Defendant argues further that it is within the province of the state legislature to determine the method of procedure for procuring the confinement of persons dangerous to the community. Defendant's Memorandum of Law (Dkt. No. 12-20) (citing Miller v. Director, Middletown State Hosp., 146 F. Supp. 674, 679 (S.D.N.Y. 1956). While that may be true, it is axiomatic that any procedures prescribed by the state in association with a liberty deprivation must comport with the constitutionally guaranteed right to due process. See generally Vitek v. Jones, 445 U.S. 480, 100 S. Ct. 1254 (1980).
2. Plaintiff's Liberty Interest
The Supreme Court has "recognized that for the ordinary citizen, commitment to a mental hospital produces a 'massive curtailment of liberty.'" Id. at 491-02, 100 S. Ct. at 1263 (quoting Humphrey v. Cady, 405 U.S. 540, 509, 92 S. Ct. 1048, 1052 (1972)). It is thus undeniable that "[i]nvoluntary confinement, including civil commitment, represents a significant deprivation of liberty, requiring due process." Abdul v. Matiyn v. Pataki, 9:06-CV-1503, 2008 WL 974409, at *10 (N.D.N.Y. April. 8, 2008) (Hurd, J. and Homer, M.J.) (quoting Fisk v. Letterman, 401 F. Supp. 2d 362, 374 (S.D.N.Y. 2005) (citations omitted)). In Vitek, the Court made clear that even convicted felons maintain the right to freedom from classification as mentally ill and involuntary psychiatric treatment. Vitek, 445 U.S. at 493-94, 100 S. Ct. at 1264. While Supreme Court has approved of the use of involuntary confinement where there has been a determination that the person in question currently suffers from a "mental abnormality" and is likely to pose a future danger to the public, Abdul, 2008 WL 974409, at *10 (citing Kansas v. Hendricks, 521 U.S. 346, 371, 117 S. Ct. 2072, 2086 (1997)), it is well established that "'even if ... involuntary confinement [is] initially permissible [and founded upon a constitutionally adequate basis], it [can] not constitutionally continue after that basis no longer exist[s].'" Mental Hygiene Legal Servs. v. Spitzer, No. 07 Civ. 2935(GEL), 2007 WL 4115936, at * 6 (S.D.N.Y. Nov. 16, 2007) (quoting O'Connor v. Donaldson, 422 U.S. 563, 575, 95 S. Ct. 2486, 2493 (1975) (citation omitted)), aff'd sub nom., Mental Hygiene Legal Servs. v. Paterson, __ Fed. App'x _, 2009 WL 579445 (2d Cir. 2009). It is thus beyond doubt that even as a detained sex offender, plaintiff maintains a liberty interest in being free from civil confinement. See State of New York v. Maurice G., 32 Misc. 3d 380, 403, 928 N.Y.S.2d 162 (Sup. Ct. Bronx Cnty. 2011) (observing that "[t]he private interest in [an] article 10 petition is compelling - civil management under article 10 is a significant deprivation of in individual's liberty interest.") (citing Hendricks, 521 U.S. at 356, 117 S. Ct. at 2079); Spitzer, 2007 WL 4115936, at *4-5). In light of the foregoing principles, I reject defendant's assertion that as a matter of law the plaintiff, as a detained sex offender, cannot state a cognizable liberty interest.
Equally unavailing is defendant's fact-based assertion that by definition plaintiff cannot be viewed as having suffered a deprivation of liberty during the period of time that he sought voluntary admission to SLPC. On October 10, 2007, plaintiff's attorney informed defendant in writing that his continued detention of McChesney was without legal authority and that plaintiff wished to apply under MHL § 9.13 for voluntary admission, enclosing a Voluntary Request for Hospitalization form signed by McChesney. Significantly, and consistent with his position that he was not legally being detained, that form requested "admission" rather than "conversion to voluntary status"; on the form, plaintiff also noted as the reason for his application, "expiration of current commitment order and my realization that I need further treatment [sic] maladaptive behaviors." Bastien Decl. (Dkt. No. 12-2) Exh. B. During his deposition, plaintiff testified that he sought to make his status at the SLPC voluntary so that he could "sign out." Transcript of Plaintiff's Deposition (Dkt. No. 12-8) pp. 29-30. Plaintiff further acknowledged his awareness that if he were hospitalized on voluntary status and wished to leave, the OMH could not detain him without observing the requisite procedures, including obtaining the evaluations of two psychiatrists that his involuntary commitment was necessary. Id. at p. 30. To be sure, the word "voluntary" itself denotes an element of choice.
MHL § 9.13 provides, in relevant part, that "[t]he director of any hospital may receive as a voluntary patient any suitable person in need of care and treatment, who voluntarily makes written application therefor." N.Y. Mental Hyg. Law § 9.13(a).
Under the MHL, an individual voluntarily admitted to a psychiatric facility may give notice in writing at any time to the director of the facility that he or she desires to leave, and "the director shall promptly release the patient; provided, however that if there is reasonable ground for belief that the patient my be in need of involuntary care and treatment, the director may retain the patient for a period not to exceed seventy-two hours from receipt of such notice." N.Y. Mental Hyg. Law § 9.13(b). Before that 72-hour period expires, the director must either apply to court for an order authorizing involuntary retention upon notice to the patient, or release the patient. See id.
"Voluntary" is defined as "[d]one or undertaken of one's own free will" and "capable of making choices; having the faculty of will." AMERICAN HERITAGE DICTIONARY 1929 (4th. ed. 2000).
Viewing the evidence in a light most favorable to the plaintiff, a reasonable juror could conclude that plaintiff's request for voluntary admission was, in fact, an effort to gain self-determination over whether he could leave the facility, a decision he was unable to make as long he remained under involuntarily commitment. As such, it is plausible that a jury could find that plaintiff sought liberty, and that his liberty was restrained without due process of law. I therefore reject defendant's contention that McChesney's request for voluntary admission somehow vitiates his entitlement to be free from involuntary confinement, finding that material questions of fact remain as to whether plaintiff was denied his right to liberty from October 5, 2007 until the time it became clear that he sought release from the SLPC, on or about November 30, 2007.
3. Due Process
Having found the existence of triable facts surrounding whether plaintiff experienced a liberty deprivation, the inquiry turns to the sufficiency of the procedural safeguards associated with the alleged deprivation. "When a person's liberty interests are implicated, due process requires at a minimum notice and an opportunity to be heard." Spitzer, 2007 WL 4115936, at * 5 (citing Hamdi v. Rumsfeld, 542 U.S. 507, 533, 124 S. Ct. 2633, 2648 (2004) (plurality opinion)).
The SOMTA expressly provides for notice and a hearing under the circumstances presented. For example, pursuant to MHL § 10.05, which is entitled "notice and case review", when persons qualifying as detained sex offenders, like the plaintiff, are nearing release,120 days before the anticipated release date the agency having custody of the detainee must notify the Attorney General of the State, thereby triggering an obligation on the part of the OMH to review the relevant records and determine whether case review is warranted. See N.Y. Mental Hyg. Law § 10.05(b). If a referral is made to the case review team, the respondent must receive notice of the referral. See id. at § 10.05(e). If the case review team finds that the detainee is a sex offender requiring civil confinement, within forty-five days of the commissioner receiving notice of the anticipated released, the agency must notify both the detainee and the Attorney General, in writing, and provide a written report from a psychiatric examiner that includes a finding that the respondent has a mental abnormality. Id. at § 10.05(g). Once that determination is made, the Attorney General may file a sex offender civil management petition. See N.Y. Mental Hyg. Law § 10.06(a). If at the time such a petition is filed the respondent is at liberty, the court is required to order his or her return to confinement for the purpose of a probable cause hearing, which must commence within seventy-two hours of the person's return to an OMH facility. See N.Y. Mental Hyg. Law § 10.06(h). If the respondent is not at liberty when such petition is filed but becomes eligible for release before a probable cause hearing is conducted, the court must order a stay of the release pending a probable cause hearing, which must occur within no later than seventy-two hours from the date of anticipated release. See id.
Notwithstanding the procedures set forth in the SOMTA, there is no dispute that prior to the expiration of the April 5, 2007 commitment order the case review team did not notify the Attorney General that plaintiff was nearing the end of his commitment period, or that an interim retention order pursuant to MHL § 10.06(f) would be required. Consequently, neither plaintiff nor the Attorney General was notified that the case review team had determined that plaintiff was, at the relevant time, a sex offender requiring civil confinement, and no probable cause hearing was conducted before October 5, 2007. In fact, no hearing at all was held until on or about December 7, 2007, after 1) McChesney had obtained an order and been released, 2) the defendant filed an ex parte order to show cause to return plaintiff to confinement, and 3) plaintiff filed a petition in the Supreme Court for habeas corpus relief seeking an order directing his release.
Nonetheless, in a somewhat convoluted argument, defendant evidently now maintains that McChesney cannot show a deprivation of liberty without due process of law, contending that under the SOMTA he had no legitimate expectation of release. At the outset, defendant relies on MHL sections 10.05 (b) and (g), emphasizing that these subsections expressly provide that the "failure to give notice within [the required] time period shall not affect the validity of such notice or any subsequent action, including the filing of a sex offender civil management petition". N.Y. Mental Hyg. Law §§ 10.05(b) and (b). As a result, defendant argues, the failure to timely notify the Attorney General of plaintiff's impending release, complete a case review, and provide advance notice of the case review to the respondent results in no penalty, and detained sex offenders, like plaintiff, have no realistic expectation of release before case review is completed. Defendant's Memorandum of Law (Dkt. No. 12-10) pp. 9-11. Defendant further asserts under section 10.06(f) of the SOMTA, the Attorney General could have filed a "securing petition" at any time, and pursuant to sections 10.06(h) and (k) plaintiff would have been held until either a probable cause hearing was conducted, or until after the case review team had concluded that plaintiff was a sex offender requiring civil confinement. Id. at pp 12-13. Defendant appears to argue that, based upon the above referenced provisions, even if the required procedures had been followed, plaintiff would have been retained in any event, and consequently he had no legitimate expectation of being released upon the expiration of the April 5, 2007 order. See id. Following this reasoning, defendant urges that plaintiff cannot claim he was deprived of a substantial liberty interest. See Defendant's Memorandum of Law (Dkt. No. 12-10) pp. 9-15.
In Cuomo, a district judge in the Southern District of New York concluded that MHL § 10.06(k) is unconstitutional on its face to the extent that it provides for "[automatic] detention of all respondents as to whom there is probable cause to believe they qualify as sex offenders requiring civil management, without an individualized finding that no condition or combination of conditions of supervision could allow the respondent to be at liberty pending adjudication." 785 F. Supp. 2d at 225-26. (emphasis in original). In doing so, she rejected the defendant's argument that the determination that a respondent has a "mental abnormality" as defined by the SOMTA equates to a finding of dangerousness. See id. at 226; contra State of New York v. Enrique T., 93 A.D.3d 158, 169, 937 N.Y.S.2d 203, 211 (1st Dep't 2012) ("'a detained sex offender who suffers from a mental abnormality but is not a dangerous sex offender requiring confinement' (Mental Hygiene Law § 10.03 [r]) is not to be interpreted to mean a sex offender who is not dangerous at all. Rather, it should be interpreted to mean a sex offender who is not dangerous to the extent where his dangerousness must be managed by confinement."), lv. to appeal dismissed, 18 N.Y.3d 1876 (2012) .
In my view, defendant's reasoning is flawed and fails to recognize the fundamental right that the procedures set forth in MHL Article 10 were seemingly designed to protect. As the court recognized in Spitzer, "[p]ersons affected by Article 10 are threatened with deprivation not merely of a liberty interest, but of liberty tout court, as the Act contemplates that those found within its scope may be confined against their will." 2007 WL 4115936, at *4. While the state's interest in retaining mentally ill and dangerous felons prone to the commission of sexual offenses is no doubt compelling, "due process [nonetheless] requires that the nature and duration of commitment bear some relation to the purpose for which the individual is committed." Jackson v. Indiana, 406 U.S. 715, 738, 92 S. Ct. 1845, 1858 (1972). To accept defendant's reasoning would allow an agency such as the OMH to hold a civilly committed sex offender indefinitely, notwithstanding the expiration of an authorizing order, without affording that individual any due process whatsoever.
In his memorandum to the New York State Senate introducing the proposed legislation containing the SOMTA, Senator Volker described the enactment as providing" a muti-stage process designed to ensure that only the most dangerous offenders get confined." NEW YORK STATE SENATE SPONSORS MEMORANDUM, S.B. 3318, 230th Legis. (2007). The Senator further observed that under that act, "[e]very person in civil confinement will have at least annual reviews of [his or her] status. There are also a variety of other hearings and procedures to ensure that when an individual's circumstances change, the level of supervision is increased, decreased, or terminated as appropriate." Id.
Case law is clear and well-established, however, that one cannot be civilly committed longer than reasonably necessary. See, e.g., Jackson, 406 U.S. at 738, 92 S. Ct. at 1858. Indeed, two decades ago the Supreme Court held that "keeping [a convicted felon against his will in a mental institution is improper absent a determination in civil commitment proceedings of current mental illness and dangerousness." Foucha v. Louisiana, 504 U.S. 71, 78, 112 S. Ct. 1780, 1784 (1992). Where, as here, the person is already confined, and thus presents no immediate danger to society, it seems that due process requires pre-deprivation notice and a hearing. Bailey v. Pataki, 722 F. Supp. 2d 443, 447 (S.D.N.Y. 2010). Without explanation, defendant did not follow the procedures set forth in the SOMTA, but instead failed to avail himself of the ability to file a securing petition before the case review was complete, as authorized by MHL § 10.06, to ensure both the protection of society and plaintiff's constitutional rights.
It seems clear that in enacting the SOMTA the State did not, as defendant now claims, intend to authorize the indefinite confinement of even detained sex offenders like plaintiff without providing the appropriate pre-deprivation process. See N. Y. STATE SENATE SPONSORS MEMORANDUM, S.B. 3318. In the first instance, defendant simply ignores the fact that while MHL § 10.06(h) requires that a detained sex offender be kept in the custody of the OMH during the pendency of a probable cause hearing, it also guarantees that a prompt hearing, or due process, will be provided by unequivocally requiring that such hearing take place within seventy-two hours of any order staying the release of a respondent who is not at liberty, or seventy-two hours after a respondent who has been free is returned to confinement. In this case, there is no dispute that a hearing did not occur until sixty-one days after the release date set forth in plaintiff's original commitment order.
To the extent that defendant implies that plaintiff's detention was authorized by the SOMTA, that position was squarely rejected by the Third Department in the state court proceeding. Preliminarily, in its decision that court observed that the statutory language upon which defendant currently relies expressly contemplates the release of a detained person prior to determination of the case review team or the filing of a securing petition. David NN., 53 A.D.3d at 844, 862 N.Y.S.2d 150 (citing N.Y. Mental Hyg. Law § 10.06 (f) and (h)). Perhaps more importantly, the court made clear its disapproval of the manner in which the state handled the plaintiff's retention, emphasizing that "[t]he state extended McChesney's confinement pursuant to Correction Law § 402 between October 5, 2007 and December 4, 2007 without authority." David NN. v. Hogan, 53 A.D.3d at 844, 826 N.Y.S.2d 150 (footnote omitted). Addressing the appropriate procedures to be employed when the OHM seeks to hold a detained sex offender beyond his or her release date, that court stated further,
[MHL] § 10.06 (f) provides that when a detained person is released prior to a determination by theId. at 845 n.3. It thus seems clear that defendant's retention of plaintiff, notwithstanding the expiration of the April 5, 2007, order was not authorized by the SOMTA.
case review team, the Attorney General may file a securing petition to continue the person's confinement pending such a determination. Complying with this statute would have been the better course of action here, rather than detaining petitioner from October 5, 2007 until December 4, 2007 with no legal authority.
Defendant cites United States v. Magassouba, 544 F.3d 387 (2d Cir. 2008) for the proposition that his detention of plaintiff for the sixty-day period in issue was "harmless." In Magassouba, the Second Circuit found that the Attorney General's retention of the defendant, an alien and pre-trial detainee based upon criminal conspiracy charges, in a psychiatric hospital for a few weeks longer than authorized by a district court was without authority, but that the error was harmless "because [the defendant] was not subjected to psychiatric treatment during this unauthorized hospitalization, and his general confinement was otherwise authorized by the Bail Reform Act, 18 U.S.C. § 3142." Id. at 393. Here, however, the court cannot conclude as a matter of law that plaintiff's detention was harmless, especially in light of the fact that it was not legally authorized.
For the foregoing reasons, in light of plaintiff's request for voluntary admission at SLPC, I have concluded that based upon the record before the court material issues of fact remain as to whether, as the plaintiff maintains, he was deprived of his liberty without due process for the period of October 5, 2007 to November 30, 2007. Accordingly, I recommend that defendant's motion directed to the merits of plaintiff's claim be denied.
Defendant seems to concede that after November 30, 2007, when the Supreme Court directed plaintiff's release, he was aware that plaintiff's continued confinement at the SLpC was no longer "voluntary".
D. Personal Involvement
Defendant next argues that he cannot be held liable under section 1983 because plaintiff has failed to allege facts showing that he was personally involved in the alleged constitutional deprivation. Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under section 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991) and McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977), cert. denied, 434 U.S. 1087, 98 S. Ct. 1282 (1978)). In order to prevail on a section 1983 cause of action against an individual, a plaintiff must show some tangible connection between the constitutional violation alleged and that particular defendant. See Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986).
As the director of the SLPC, Bastien serves in a supervisory capacity. A supervisor cannot be liable for damages under section 1983 solely by virtue of being a supervisor; there is no respondeat superior liability under section 1983. Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003); Wright, 21 F.3d at 501. Culpability on the part of a supervisory official for a civil rights violation can, however, be established in one of several ways, including when that individual 1) has directly participated in the challenged conduct; 2) after learning of the violation through a report or appeal, has failed to remedy the wrong; 3) created or allowed to continue a policy or custom under which unconstitutional practices occurred; 4) was grossly negligent in managing the subordinates who caused the unlawful event; or 5) failed to act on information indicating that unconstitutional acts were occurring. Iqbal v. Hasty, 490 F.3d 143, 152-53 (2d Cir. 2007), rev'd on other grounds sub nom., Ashcroft v. Iqbal, 556 U.S. 662,129 S. Ct. 1937 (2009); see also Richardson, 347 F.3d at 435; Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). "[M]ere 'linkage in the . . . chain of command' is insufficient to implicate a [facility supervisor] in a § 1983 claim." Wright, 21 F.3d at 501.Richardson, 347 F.3d at 435 (citations omitted); see also, e.g., Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987) (dismissal appropriate where plaintiff does no more than allege that defendant was in charge of prison); Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985) (same).
The Second Circuit has yet to address the impact of the Supreme Court's decision in Iqbal upon the categories of supervisory liability under Colon. Lower courts have struggled with this issue, and specifically whether Iqbal effectively calls into question certain prongs of the Colon five-part test for supervisory liability. See Sash v. United States, 674 F. Supp. 2d at 531, 542-44 (S.D.N.Y. 2009); see also Stewart v. Howard, No. 9:09-CV-0069 (GLS/GHL), 2010 WL 3907227, at *12 n.10 (N.D.N.Y. Apr. 26, 2010) ("The Supreme Court's decision in [Iqbal] arguably casts in doubt the continued viability of some of the categories set forth in Colon.") (citations omitted), report and recommendation adopted, 2010 WL 3907137 (Sept. 30, 2010) . While some courts have taken the position that only the first and third of the five Colon categories remain viable and can support a finding of supervisory liability, see, e.g., Bellamy v. Mount Vernon Hosp., No. 07 Civ. 1801 (SAS), 2009 WL1835939, at *6 (S.D.N.Y. June 26, 2009), aff'd, 387 Fed. App'x 55 (2d Cir. 2010), others disagree and conclude that whether any of the five categories apply in any particular case depends upon the particular violations alleged and the supervisor's participatory role, see, e.g., D'Olimpio v. Crisafi, 718 F. Supp. 2d 340, 346-47 (S.D.N.Y. 2010), aff'd, 2012 WL 498854 (2d Cir. Feb. 16, 2012); Qasem v. Toro, 737 F. Supp.2d 147, 151-52 (S.D.N.Y. 2010). This discord is irrelevant to the present action since it appears that liability, if any, would be premised upon a finding that defendant was personally involved under the first of the Colon prongs.
While defendant Bastien has been sued by plaintiff individually as the "Chief Executive Officer of SLPC," Complaint (Dkt. No. 1) ¶¶ 4 and 5, the record before the court demonstrates that his liability in this case could be premised upon more than just his supervisory role. By his own admission, on October 10, 2007, Bastien received a letter from plaintiff's counsel advising of plaintiff's position that he was being held without legal authority. Bastien Decl. (Dkt. No. 12-2) ¶ 9. According to Bastien, after receiving that correspondence he consulted with OMH counsel, who advised that plaintiff was being lawfully detained based upon MHL Article 10 and the court's decision in Harkavy II. Id. at ¶ 10. Bastien also acknowledges plaintiff's filing of an Article 78 petition requesting an order directing the SLPC to cease its illegal retention of McChesney, that the petition was granted, and that he received notice of the court's directive that plaintiff be released on December 3, 2007. Id. at ¶¶ 11-13. Thereafter, Bastien began to make arrangements for plaintiff's release. Id. Once an out-patient plan for plaintiff was completed, and Bastien was assured that all legal measures taken by the Attorney General in attempt to stay the release had been exhausted, he "ensured that plaintiff was released from SLPC on December 4, 2007 into the custody of the New York State Division of Parole." Id. at ¶¶ 13-15.
In light of these facts, and affording plaintiff the benefit of all favorable inferences that can be drawn from them, it is conceivable that a reasonable jury could conclude that defendant was personally involved in the decision of whether and when to release plaintiff from his civil detention, and therefore potentially exposed to liability as having been personally involved in the alleged constitutional violation. See Thomas v. Sagaties, No. 09 Civ. 5116(JGK), 2011 WL 5877767, at *8 (S.D.N.Y. Nov. 23, 2011). For these reasons, I recommend that defendant's motion for summary judgment on the issue of personal involvement be denied.
E. Qualified Immunity
Defendant's final contention in support of his motion for summary judgment is that even if the court finds that plaintiff suffered a deprivation of his right to due process, he is protected by the doctrine of qualified immunity.
Qualified immunity shields government officials performing discretionary functions "from liability for damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982)) (internal quotations omitted). "In assessing an officer's eligibility for the shield, 'the appropriate question is the objective inquiry whether a reasonable officer could have believed that [his actions were] lawful, in light of clearly established law and the information the officer[ ] possessed.' " Kelsey v. Cnty. of Schoharie, 567 F.3d 54, 61 (2d Cir. 2009) (quoting Wilson v. Layne, 526 U.S. 603, 615, 119 S. Ct. 1692 (1999)) (alterations in original). The law of qualified immunity seeks to strike a balance between the need to hold government officials accountable for irresponsible conduct and the need to protect them from "harassment, distraction, and liability when they perform their duties reasonably." Pearson, 555 U.S. at 129 S. Ct. at 815.
In determining whether a government official is immune from suit, the court conducts a two-part inquiry. Doninger v. Niehoff, 642 F.3d 334, 345 (2d Cir. 2011). That inquiry turns on whether the facts alleged, taken in a light most favorable to the plaintiff, show that the conduct at issue violated a constitutional right, and if so, whether that right is clearly established. Nagle v. Marron, 663 F.3d 100, 114 (2d Cir. 2011) (quoting Saucier, 533 U.S. at 201, 121 S. Ct. at 2156); Doninger, 642 F.3d at 345 (citing cases). Until recently, courts were required to perform the two-part qualified immunity analysis in precisely that order. Doninger, 642 F.3d at 345 (citing Saucier, 533 U.S. at 201, 121 S. Ct. 2151). "Following the Supreme Court's decision in Pearson v. Callahan, however, we may now exercise our discretion in deciding the order in which to conduct the qualified immunity [inquiry]." Id. (citing Pearson, 129 S. Ct. at 821).
In making the first inquiry, "[i]f no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001).
In Okin v. Vill. of Cornwall-On-Hudson Police Dep't, 577 F.3d 415 (2d Cir. 2009), the Second Circuit clarified that the " 'objectively reasonable' inquiry is part of the 'clearly established' inquiry", also noting that "once a court has found that the law was clearly established at the time of the challenged conduct and for the particular context in which it occurred, it is no defense for the [government] officer who violated the clearly established law to respond that he held an objectively reasonable belief that his conduct was lawful." Id. at 433 n.11 (citation omitted).
Indeed, because qualified immunity is "an immunity from suit rather than a mere defense to liability. . .", Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806 (1985), the Court has "repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in the litigation." Pearson, 555 U.S. at 231, 129 S. Ct. at 815 (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S. Ct. 524 (1991) (per curiam)).
"The relevant question after Pearson is 'which of the two prongs . . . should be addressed in light of the circumstances in the particular case at hand.' " Okin, 577 F.3d at 430 n.9 (quoting Pearson). "The [Saucier two-step] inquiry is said to be appropriate in those cases where 'discussion of why the relevant facts do not violate clearly established law may make it apparent that in fact the relevant facts do not make out a constitutional violation at all.'" Kelsey, 567 F.3d at 61 (quoting Pearson, 129 S. Ct. at 818).
As the Supreme Court has noted, "[t]he relevant, dispositive inquiry in determining whether a right is clearly established, the court must determine whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202, 121 S. Ct. at 2156 (citation omitted). When deciding whether a right was clearly established at the relevant time, a court should consider if
(1) it was defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has confirmed the existence of the right, and (3) a reasonable defendant would have understood that his conduct was unlawful.Doninger, 642 F.3d at 343 (citing Young v. Cnty. of Fulton, 160 F.3d 899, 903 (2d Cir.1998)). In conducting its analysis, it is critical for the court to correctly define the right at stake with "reasonable specificity", Redd v. Wright, 597 F.3d 532, 536 (2d Cir. 2010) (citation omitted), taking care to avoid a description that is either overly broad and thereby eviscerates the protections of qualified immunity, or one that is so narrowly defined that the defense would only be overcome if " ' the very action in question has previously been held unlawful[,]' " Nagle, 663 F.3d at 114 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034 (1987)).
The objective reasonableness test will be met, and qualified immunity enjoyed, where government officers of reasonable competence could disagree as to whether by his or her alleged conduct the defendant would be violating the plaintiff's rights. Okin, 577 F.3d at 433 (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092 (1986)). "If, on the other hand, no officer of reasonable competence would conclude that the conduct in question is lawful, there is no immunity." Id. at 433 (citing Lennon v. Miller, 66 F.3d 416, 420-21 (2d Cir. 1995)).
"The 'subjective good faith of government officials' plays no part in the inquiry." Nagle, 663 F.3d at 114 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 816, 102 S. Ct. 2727 (1982)).
In this instance, the basis for defendant's assertion of qualified immunity is unclear. Defendant seems to contend that because under MHL §§10.05(b) and (g) there are no penalties or forfeitures of the right to proceed in the event that the detaining agency, in this instance the OMH, fails to meet statutory deadlines, and these provisions have not been held unconstitutional, plaintiff was not entitled to release. Defendant seems to have missed the point.
As was previously noted, the Third Department observed in David NN. that the statutory language in fact contemplates the release of a detained person prior to determination of the case review team for the filing of a securing petition. See David NN., 53 A.D.3d at 844, 862 N.Y.S.2d 150 (citing N.Y. Mental Hyg. Law § 10.06 (f) and (h)).
The question raised by plaintiff's complaint is not whether he was entitled to release between October 5, 2007 and December 5, 2007, but whether he was provided with notice and an opportunity to be heard before defendant extended McChesney's detainment beyond that date authorized by the original commitment order. Addressing the clearly established prong of the qualified immunity test, at the time in question,
it [was] well established that involuntary commitment to a psychiatric facility entails "a massive curtailment of liberty," Vitek v. Jones, 445 U.S. 480, 491-92, 100 S. Ct. 1254, 63 L.Ed.2d 552 (1980), and thus cannot be done without affording the detainee adequate due process protection. Addington v. Texas, 441 U.S. 418, 425, 99 S. Ct. 1804, 60 L.Ed.2d 323 (1979) ("civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection"). The fact that a citizen has been previously convicted of an offense involving sexual violations in no way deprives him of this protection. "A criminal conviction and sentence of imprisonment ... do not authorize the State to classify him as mentally ill and to subject him to involuntary psychiatricBailey, 722 F. Supp. 2d at 447; see also Bloomfield v. Wurzberger, No. 9:08-CV-619, 2009 WL 3335892, at *8-9. (N.D.N.Y. Oct. 15, 2009) (Treece, M.J.).
treatment without affording him additional due process protections." Vitek, 445 U.S. at 493-94, 100 S. Ct.
1254.
Where a person is already confined (as because he is serving a criminal sentence), so that he presents no immediate danger to the community, full due process must be accorded before he can be transferred, upon completion of his sentence, to involuntary civil commitment.
In this instance, though plaintiff was no longer serving a prison sentence, he was confined within the SLPC for six months before his commitment order expired. In other words, he remained under the care and control of the OMH, and MHL Article 10 provided defendant with the tools to both safeguard the concerns of the community and afford McChesney with the process to which he was entitled before his term of authorized confinement expired. To be sure, pursuant to section 10.06(f), if it appears that a respondent may be released before the case review team has made its determination, and if the Attorney General determines that the protection of the public safety so requires, he or she may file a securing petition to avoid that occurrence. See N.Y. Mental Hyg. Law § 10.06(f). As was previously noted, without explanation, defendant failed to avail himself of this procedure prior to October 5, 2007. Instead, defendant provided plaintiff with no notice or opportunity to be heard with regard to his continued retention after that date. Indeed, it was not until two months later, when plaintiff had been released as twice ordered by the Supreme Court, that defendant pursued a securing petition. In light of the foregoing, I have concluded that plaintiff's right to due process under the circumstances was clearly established at the time in question.
I note that to the extent that defendant relies on "advice of counsel" to support a qualified immunity defense, the Second Circuit has determined that because the "clearly established" prong of the qualified immunity defense presents an objective inquiry, "reliance upon the advise of counsel . . . cannot be used to support the defense of qualified immunity." In re Cnty. of Erie, 546 F3d 222, 229 (2008); Holmes v. Town of East Lyme, No. 3:09cv2088, 2012 WL 1108557, *13 (D. Conn. Mar. 30, 2012) (quoting Erie).
While "[t]he matter of whether a right was clearly established at the pertinent time is a question of law[,] . . . the matter of whether a defendant official's conduct was objectively reasonable, i.e., whether a reasonable official would reasonably believe his conduct did not violate a clearly established right, is a mixed question of law and fact." Kerman v. City of New York, 374 F.3d 93, 108-09 (2d Cir. 2004) (citations omitted). The Second Circuit has held that where there are unresolved factual issues, a jury should decide those issues through the use of special interrogatories. Lore v. City of Syracuse, 470 F.2d 127, 162 (2d Cir. 2012) (citing cases). In Lore, the court found that the situation that confronted the defendant, what acts he performed, and his motivation for performing those acts all presented questions of fact for the jury. See id. Similar questions remain in this case, and must be resolved before the issue of qualified immunity can be addressed.
On the record before the court, viewing the facts most favorably to the plaintiff, I have concluded that defendant has failed to demonstrate as a matter of law that his conduct was objectively reasonable See generally Bailey, 772 F. Supp. 2d 443; Bloomfield, 2009 WL 3335892, at *8-9. I therefore recommend that defendant's motion for summary judgment on the basis of qualified immunity be denied.
IV. SUMMARY AND CONCLUSION
Undeniably, the SOMTA expresses a legislative finding that recidivistic sex offenders pose a danger to society, such that detention of those with mental abnormalities rendering them dangerous is necessary to protect the public, reduce recidivism, and ensure offenders have comprehensive treatment and management. Nonetheless, at stake in this action is the right to be free from physical restraint, one of the most fundamental in our society, and one that has been jealously guarded by the courts. In view of the significant restriction of liberty arising out of civil confinement, it has long been held that one cannot be deprived of his or her liberty by involuntary commitment without due process of law.
It is undisputed that the procedures set forth in the SOMTA, which would have allowed plaintiff notice and an opportunity to be heard before he was detained more than seventy-two hours after the date of his anticipated release, were not followed, and as a result plaintiff was detained at the SLPC for sixty-one days before he was afforded a probable cause hearing. Moreover, on the record before the court, affording plaintiff the benefit of all favorable inferences that can be drawn, I conclude that a reasonable juror could find that defendant was personally involved in the decisions regarding whether and when to release plaintiff. And, while the court in no way implies that defendant has proceeded with anything other than good faith, the fact that he may have relied on advice of counsel, or acted with good intentions, is insufficient to establish that his conduct was objectively reasonable in light of firmly established law.
Accordingly, it is hereby respectfully
RECOMMENDED that defendant's motion for summary judgment (Dkt. No. 12) be DENIED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules. Dated: July 5, 2012
Syracuse, NY
______________
David E. Peebles
U.S. Magistrate Judge