Karl AHLERS, Plaintiff-Appellant, v. Steven RABINOWITZ, Director, Manhattan Psychiatric Center, Dora Deatras, Ward D-9-B Treatment Team Leader, Manhattan Psychiatric Center, Imogine Thompson, Ward D-9-B, Staff Member, Manhattan Psychiatric Center, Felicity Moe, Ward D-9-B, Staff Member, Manhattan Psychiatric Center, Defendants-Appellees.
Docket No. 10-1193.
United States Court of Appeals, Second Circuit.
Argued: Dec. 7, 2011. Decided: April 6, 2012.
Finally, we “[g]enerally[] will not consider an argument on appeal that was raised for the first time below in a motion for reconsideration,” though this is a prudential rather than jurisdictional rule. Official Comm. of the Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 159 (2d Cir.2003). We “are more likely to exercise our discretion” to consider an “issue[] not timely raised below” when “the issue is purely legal and there is no need for additional fact finding.” Id. Here, however, Defendants argue that Tonga was a director by deputization, which the Supreme Court has “intimated ... is a question of fact to be settled case by case and not a conclusion of lаw,” Feder v. Martin Marietta Corp., 406 F.2d 260, 263 (2d Cir.1969) (citing Blau v. Lehman, 368 U.S. 403, 408-409, 82 S.Ct. 451, 7 L.Ed.2d 403 (1962)). And though we express no opinion on the ultimate merits of this question as pertaining to Tonga, we are skeptical that on these facts its “proper resolution is beyond any doubt” as a matter of law, Color Tile, 322 F.3d at 159 (quoting Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976)) (internal quotation marks omitted). Under these circumstances, we decline to exercise our discretion to consider Defendants’ deputization argument here.
CONCLUSION
For the foregoing reasons, we agree with the district court that the acquisition of the 2004 Note was a purchase of a security for purposes of
Before: JACOBS, Chief Judge, CABRANES and WESLEY, Circuit Judges.
DENNIS JACOBS, Chief Judge:
Karl Ahlers appeals from a judgment entered in the United States District Court for the Southern District of New York (Crotty, J.) dismissing his claims under
BACKGROUND
In August 1982, Ahlers was convicted of sex offenses involving children aged seven to sixteen: specifically, two counts of sodomy in the first degree, one count of sodomy in the second degree, one count of sodomy in the third degree, three counts of sexual abuse in the first degree, and two counts of endangering the welfare of a child. People v. Ahlers, 98 A.D.2d 821, 470 N.Y.S.2d 483, 483 (3d Dep‘t 1983). After release from prison in 2005, Ahlers was involuntarily placed in civil custody, first in the Kirby Forensic Center and then, in August 2007, in the Sex Offender Treatment Program at the Center. In December 2008, Ahlers filed a pro se complaint against the Center‘s Director, Steven Rabinowitz, and three Center employees—Dora Deatras, Imogine Thompson, and Felicity Moe—(collectively, the “Defendants“) alleging that they withheld from him certain CDs and DVDs, аnd his mail, in violation of the Constitution and federal law. The allegations are set out below.
CDs and DVDs. Ahlers alleges that because of his hearing loss, he was granted permission to have a personal DVD player, DVDs, and CDs, so that he could listen through headphones. Other patients received similar accommodations. Over time, with the Center‘s permission, Ahlers acquired a collection of 163 DVDs and 86 CDs (collectively, the “discs“). According to Ahlers, the DVDs contain content similar to what is broadcast on the Center‘s televisions, and the CDs contain classical music.
On April 21, 2008, staff entered Ahlers‘s room without warning, seized his DVD player and all his discs, and informed him that the discs would be reviewed and returned. On May 6, Ahlers met with his parole officer and members of his treatment team—defendants Deatras, Thompson, and Moe—and he was assured that they would review his DVDs. On May 19, at a meeting of all the patients in Ahlers‘s ward, Deatras announced that the staff was screening for sexually explicit material.
On May 28, Ahlers met to discuss the seizure with the Center‘s Deputy Director, Charles Herrmann, who said he would look
On May 30, Deatras returned 16 DVDs and the DVD player to Ahlers and presented him with a receipt, which indicated that 14 DVDs had been permanently confiscated for containing sexually explicit material and that 131 had yet to be reviewed.1
On June 18, Ahlers discussed the seizure with Don Graham, a lawyer in “Mental Health Services,” who later met with the ward psychologist and Deatras. Two days later, Ahlers asked when he would get back the remaining discs, and was told by Deatras that just one person was available to screen DVDs, but that she would talk to that individual. Later that day, Deatras returned 15 DVDs, and told Ahlers that the rеmaining DVDs had not yet been reviewed.
Toward the end of June, Deatras gave Ahlers a list of the 14 permanently confiscated DVDs and a memo from defendant Steven Rabinowitz, Director of the Center, responding to a letter Ahlers had written. Rabinowitz advised that it was clinically inappropriate for Ahlers to have sexually explicit material and sexual material involving children, and that the permanently confiscated DVDs had been deemed clinically inappropriate.
On July 28, the Center returned ten more DVDs to Ahlers. On August 8, twenty more were returned.
Mail. On March 20, 2008, a United States Government Printing Office (“GPO“) catalog arrived in the mail for Ahlers. Thompson withheld it to submit it to Deatras for review. On April 28, Ahlers asked Moe about it and was told a decision had not yet been made. On May 3, Deatras returned the catalog; with Ahlers‘s permission, the cover was removed.
On March 21, 2008, Thompson intercepted a piece of mail and turned it over to Deatras, who told Ahlers that it had been given to his social worker. Ahlers never received the item.
On April 28, Moe withheld an issue of Smithsonian magazine and a mail-order catalog. In response to Ahlers‘s inquiry about the magazine in early May, Deatras told Ahlers she had not yet had time to review it. On May 12, Moe returned the magazine.
Also on April 28, another patient informed Ahlers that he had seen a package addressed to Ahlers. Ahlers went to pick it up, but the package was not available. The next day, Ahlers received the package and was told by Deatras that she was holding pending review five catalogs and one magazine.
On May 5, defendant Thompson withheld a Heartland mail-order catalog and a catalog of DVDs. The Heartland catalog had a photograph of a replica revolver, and the DVD catalog had a photograph of Civil War soldiers with flintlock rifles. When Ahlers objected, Thompson gave him the DVD сatalog, but withheld the Heartland catalog for review by a parole officer.
On June 24, Center staff withheld several brochures from the Chamber of Commerce of Klamath Falls, Oregon, which contained pictures of children in bathing suits. The brochures were not returned.
On July 11, an attendant told Ahlers that some of his mail was being withheld for review; Ahlers never got it. On July 21, two books were held for review. On July 22, Thompson withheld brochures
Dismissal of the Complaint. The district court construed the complaint to raise allegations under the Americans with Disabilities Act of 1990,
Ahlers appeals the dismissal of his
DISCUSSION
“We review de novo a district court‘s dismissal of a complaint pursuant to
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ... The plausibility standard is not akin tо a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
“A document filed pro se is ‘to be liberally construed,’ and ‘a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.‘” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citation omitted) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). “This is particularly so when the pro se plaintiff alleges that h[is] civil rights have been violated.” Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir.2008).3
“In order to state a cause of action under
42 U.S.C. § 1983 , a plaintiff must allege that some person acting under color of state law deprived him of a federal
I
To determine the substantive rights of a person involuntarily committed to a state institution, the interests of the individual are balanced against the interests of the state. Youngberg v. Romeo, 457 U.S. 307, 320, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982); see Buthy v. Comm‘r of the Office of Mental Health, 818 F.2d 1046, 1050 (2d Cir.1987) (balancing to determine the due process rights of persons committed after acquittal by reason of insanity); United States v. Cohen, 796 F.2d 20, 23-24 (2d Cir.1986) (balancing to determine the Fourth Amendment rights of pretrial detainees). We have not previously undertaken to perform that analysis with regard to the Fourth Amendment right of civilly committed persons to be free from unreasonable searсhes and seizures.
In a prison or institution housing pretrial detainees, the “essential” state interests include “maintaining institutional security and preserving internal order.” Bell v. Wolfish, 441 U.S. 520, 546, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). “[O]fficials must be free to take appropriate action to ensure the safety of inmates and ... personnel and to prevent escape or unauthorized entry.” Id. at 547, 99 S.Ct. 1861.4
On the other hand, “[p]ersons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Youngberg, 457 U.S. at 321-22, 102 S.Ct. 2452. However, the stаte‘s interest in maintaining order and security is not punitive in purpose or character, and remains valid in institutions of civil commitment. See Aiken v. Nixon, 236 F.Supp.2d 211, 232 (N.D.N.Y.2002) (noting the “societal interest in protecting the health, safety, and welfare of the patients and staff” in a state psychiatric center); see also Bell, 441 U.S. at 540, 99 S.Ct. 1861 (“The Government ... has legitimate interests that stem from its need to manage the facility in which the individual is detained [pretrial].“).
The state also has an interest in treating the civilly committed individual. “[T]he dual goals of involuntary commitment [are] to provide care and treatment to those unable to care for themselves and to protect the individual and society from those who pose a danger to themselves and others because of mental illness.” Goetz v. Crosson, 967 F.2d 29, 34 (2d Cir.1992); see also McKune v. Lile, 536 U.S. 24, 33, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002) (“States ... have a vital interest in rehabilitating convicted sex offenders.“).
The reasonableness of the seizure in this case depends on a balance of interests: the state‘s interests in order, security, and treatment, and Ahlers‘s property interest in his discs. In striking the appropriate balance, decisions made by the Defendants are entitled to a “‘presumption of correctness.‘” Buthy, 818 F.2d at 1050 (quoting Youngberg, 457 U.S. at 324,
Ahlers does not claim entitlement to possess sexually explicit media; his allegation is that none of the discs is sexually explicit. But the Defendants are not bound to accept his characterizations or assurances. It was therefore not unreasonable to seize the discs to look for prohibited material. The fact that thе Center allowed Ahlers to acquire the discs did not diminish its interest in ensuring that they were appropriate.
Ahlers challenges the motivations of the Defendants in seizing his property and the length of the seizure. But “the subjective motivations of the individual officers ... has no bearing on whether a particular seizure is ‘unreasonable’ under the Fourth Amendment,” Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), and where, as here, “an initial seizure of property was reasonable, defendants’ failure to return the items does not, by itself, state a separate Fourth Amendment claim of unreasonable seizure,” Shaul v. Cherry Valley-Springfield Cent. Sch. Dist., 363 F.3d 177, 187 (2d Cir.2004). “To the extent the Constitution affords ... any right with respect to a government agency‘s retention of lawfully seized property, it would appear to be procedural due process.” Id.
II
In alleging a violation of his procedural due process rights, a plaintiff must plead facts sufficient to give rise to a claim that he was deprived of his property without “constitutionally adequate pre- or post-deprivation process.” N.Y. State Nat‘l Org. for Women v. Pataki, 261 F.3d 156, 163 (2d Cir.2001). A court must balance three factors in determining what process is due:
(1) “the private interest that will be affected by the official action“; (2) “the risk of an errоneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards“; and (3) “the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” McMenemy v. City of Rochester, 241 F.3d 279, 288 (2d Cir.2001) (quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)).
Ahlers‘s allegations are insufficient to support a claim that the Center‘s pre-deprivation procedures were constitutionally inadequate.
Ahlers alleges that his discs were seized without prior notice. Pretrial detainees are not entitled to noticе before a search of their cells. See Block v. Rutherford, 468 U.S. 576, 590, 591 n. 12, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984). The private interest may be greater for civilly committed persons, see Youngberg, 457 U.S. at 321-22, 102 S.Ct. 2452; but the state‘s interest in seizing contraband is no less, and the self-defeating effect of advance notice would be the same. A random search ““allows ... flexibility and prevents inmates from anticipating, and thereby thwarting, a search for contraband.“” Hudson, 468 U.S. at 529, 104 S.Ct. 3194 (quoting Marrero v. Commonwealth, 222 Va. 754, 284 S.E.2d 809, 811 (1981)).
Ahlers alleges that the seizure was unguided by any “written facility policy” or “written authorization.” In any context, “[a] requirement that ... random searches be conducted pursuant to an established plan would seriously undermine the effectiveness of this [measure].” Hudson, 468 U.S. at 529, 104 S.Ct. 3194. In the therapeutic context, where “[a] single professional may have to make decisions with respect to a number of residents with widely varying needs and problems in the course of a normal day,” Youngberg, 457 U.S. at 324, 102 S.Ct. 2452, it is particularly hard to catalog contraband. Disorders differ; treatments are individual and subject to change; and deviant interests will render otherwise-benign images clinicаlly inappropriate. Accordingly, the state‘s interest in the staff‘s ability to effectively perform their jobs outweighs the value of any additional protection to Ahlers‘s property interests that would result from a written policy or formula.
Ahlers protests that his property was held for an unreasonably long period. But vetting the CDs and DVDs presumably entails real-time review, conducted by staff with other responsibilities as well. Considering that nearly 250 discs were seized from Ahlers alone, that discs were seized from other patients as well, and that the process is not necessarily of the first priority within the institution, the months taken to complete the work does not suggest that the procedures or policies were constitutionally inadequate.5
Ahlers alleges that the 14 DVDs that were permanently confiscated are not sexually explicit. But the Center may consider that there is a broader category of material that is clinically inappropriate without presenting itself as sexual. In any event, Ahlers‘s disagreement with the Defendants’ decision is insufficient to state a claim that the state‘s decision-making procedures were inadequate.
Ahlers recites a list of encounters with staff, evidently to show that he was afforded inadequate post-deprivation procedures. Thus he alleges that two weeks after the seizure, he was “called into a meeting” with his parole officer and Deatras, Thompson, and Moe; and that approximately five weeks after the seizure, he “was called into a meeting” with the Center‘s Deputy Director. The complaint does not make clear whether the meetings were opportunities to challenge the deprivation, or whether they were therapeutic, or both. Similarly, the complaint does not make clear whether Ahlers‘s meeting with a lawyer from “Mental Health Services” and the letter Ahlers sent to Rabinowitz
III
This Circuit has not articulated the standard by whiсh to analyze censorship of mail in the civil commitment context. “Restrictions on prisoners’ mail are justified only if they ‘further[] one or more of the substantial governmental interests of security, order, and rehabilitation ... [and] must be no greater than is necessary or essential to the protection of the particular governmental interest involved.‘” Davis v. Goord, 320 F.3d 346, 351 (2d Cir.2003) (alterations in original) (quoting Washington, 782 F.2d at 1139). With regard to legal mail, “an isolated incident of mail tampering is usually insufficient to establish a constitutional violation. Rather, the inmate must show that prison officials ‘regularly and unjustifiably interfered with the incoming legal mail.‘” Id. (citations omitted) (quoting Cancel v. Goord, No. 00 CIV 2042 LMM, 2001 WL 303713, at *6 (S.D.N.Y. Mar. 29, 2001)). In thе context of civil commitment, this formula is easily adapted. A patient must show regular and unjustifiable interference with incoming legal mail; the actions of facility staff in restricting civilly committed individuals’ access to legal mail are justified if they advance or protect the state‘s interest in security, order, or treatment and the restrictions imposed are no greater than necessary to advance the governmental interest involved.
Interference with non-legal mail, as Ahlers claims, is more readily justifiable than interference with so-called legal mail. See id. at 351 (“In balancing the competing interests implicated in restrictions on prison mail, courts have consistently afforded greater protection to legal mail than to non-legal mail....“). We need not articulate the correct standard here, however, because Ahlers‘s complaint cannot support a claim that any alleged “interference” with his non-legal mail was “regular[]” or “unjustifiabl[e].” See id.
Broadly construed, the complaint alleges eleven instances of interference, between March and July 2008.7 Three times, the withheld items were returned: the GPO catalоg was returned within six weeks; the Smithsonian magazine (after Ahlers consented to the removal of its cover) was returned after two weeks; and the package withheld on April 28 was returned the next day. Several brief delays do not amount to a First Amendment violation. See Rowe v. Shake, 196 F.3d 778, 780, 782 (7th Cir.1999) (holding an allegation that, over the course of three months, eight items took more than fourteen days to reach a prisoner was insufficient); Cancel v. Goord, No. 00 CIV. 2042(LMM), 2002 WL 171698, at *3 (S.D.N.Y. Feb. 4, 2002) (holding an allegation of seven delays, ranging from two to six weeks, over the course of a year was insufficient).
Ahlers alleges three instances involving mail that wаs never returned, and an additional five instances in which he leaves
The reasons for some of the other withholdings are unclear. The complaint says very little about the “publication” withheld on March 21, 2008, or the brochures from Medford, or the material withheld on April 28, April 29, July 11 and July 21.
In any event, eleven instances over four months does not in itself support an inference of regular interference. And the allegation that mail was withheld is insufficient to support a claim that it was withheld unjustifiably.8
The foregoing analysis is directed to Ahlers‘s complaint that his mail was intercepted and withheld arbitrarily, and that the Defendants’ actions were not governed by any rule or policy. We therefore must proceed on the assumption that no rule or policy exists. In so doing, we recognize that the test for ascertaining the constitutional validity of such a rule is established in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). As we have explained:
In Turner, the Supreme Court instructed that courts reviewing the validity of prison regulations should apply several factors. First, “there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it.” Second, courts should assess “whether there are alternative means of exercising the right that remain open to prison inmates.” Third, courts should consider “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” Finally, courts should consider the challenged regulation in relation to proposed alternatives. Johnson v. Goord, 445 F.3d 532, 535 (2d Cir.2006) (citations omitted) (quoting Turner, 482 U.S. at 89-90, 107 S.Ct. 2254). These four considerations amount to an overall test of reasonableness that differs
IV
We have for the first time undertaken a Fourth Amendment balancing analysis with regard to the right of a civilly committed person to be free from unreasonable seizures. In other circumstances, that might justify a remand for a pro se complainant to replead. See Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795-96 (2d Cir.1999) (“[T]he court should not dismiss without granting leave to amend at least once when a libеral reading of the complaint gives any indication that a valid claim might be stated.“) (internal quotation marks omitted). However, we are satisfied that, in any event, “it was objectively reasonable for [the Defendants] to believe their acts did not violate” Ahlers‘s Fourth Amendment rights, or his First Amendment or procedural due process rights. See Weyant v. Okst, 101 F.3d 845, 857 (2d Cir.1996).
“The qualified immunity doctrine protects government officials from suits seeking to impose personal liability for money damages based on unsettled rights or on conduct that was not objectively reasonable....” Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir.1998). The complaint requests relief of “one thousand dollars ($1,000.00) per day punitive damages” from the date Ahlers‘s property was seized until the date it “is returned to him intact.” This demand for money damages might also be read as a prayer for injunctive relief. However, Ahlers, though pro se, knew how to plead a claim for injunctive relief, and did, albeit as to a matter now moot.9 More importantly, Ahlers‘s brief, filed by counsel, does not argue for an injunction. Moreover, although the parties’ briefs argue back and forth on the issue of qualified immunity, Ahlers does not contend that his prayer for relief was anything but a claim for monеy damages. “Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.” Norton v. Sam‘s Club, 145 F.3d 114, 117 (2d Cir. 1998). Accordingly, we construe the complaint as a claim for money damages and conclude that the Defendants are entitled to qualified immunity.
CONCLUSION
For the foregoing reasons, we affirm the judgment of dismissal.