OPINION AND ORDER
This Opinion and Order details the Court’s reasons for denying defendants’ contention on summary judgment that they are entitled to qualified immunity as a matter of law and formally confirms that determination.
By way of background, between 1998 and 2005 former New York State Governor George Pataki made several attempts to get the New York State Legislature to enact legislation providing for the civil con
Before promulgating the SVP initiative, Pataki’s executive staff had internal discussions, as well as discussions with staff of various State agencies such as the Office of Mental Health (“OMH”) and the Department of Correctional Services (“DOCS”) regarding the purported legal authority for the initiative, the capability of the agencies to implement it, and the procedures for its implementation. Id. ¶ 35. (However, the defendants have now expressly disclaimed any defense of the instant actions based on reliance on counsel. See Transcript, 5/13/10, at 13.)
A key part of the SVP initiative was that it allowed involuntary civil commitment of the SVP convicts pursuant to the procedures and standards set forth in Section 9.27 et seq. of the New York Mental Hygiene Law (“MHL”), rather than those set forth in Section 402 of the New York Correction Law. Among other things, MHL § 9.27 permits two state-employed psychiatrists to effectuate the involuntary civil commitment of “any person alleged to be mentally ill and in need of involuntary care and treatment,” without any prior judicial hearing or determination, see N.Y. Mental Hyg. Law § 9.27, whereas Correction Law § 402 permits transfers of an inmate to civil confinement in a psychiatric facility only upon a judicial determination made after notice, hearing, and examination by court-appointed psychiatrists, see Corr. Law § 402.
A year later, the New York Court of Appeals unanimously determined that Correction Law § 402, rather than MHL § 9.27, is the appropriate method for evaluating an incarcerated inmate for postrelease involuntary commitment to a mental facility.
State ex rel. Harkavy v. Consilvio,
The plaintiffs in these six now-consolidated cases,
see
Order dated June 15, 2010 (Docket Entry # 101), were all nearing the completion of their prison sentences for sexual offenses in and around 2005 (i.e., prior to the Court of Appeals decision in Harkavy) when, pursuant to the SVP initiative, they were committed to indefinite civil confinement under the procedures outlined in MHL § 9.27. The instant actions allege, pursuant to 42 U.S.C. § 1983, that defendants thereby violated plaintiffs’ Fourth Amendment right against unreasonable seizure and plaintiffs’ Fourteenth Amendment rights to procedural and substantive due process and equal protection.
Early in the case, defendants moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss plaintiffs’ complaints on the ground,
inter alia,
of qualified immunity. In an Opinion and Order dated July 10, 2009,
After receiving extensive briefing and oral argument, the Court, on May 20, 2010, notified the parties in a “bottom-line” Order (with Opinion to follow) that it intended to deny plaintiffs’ motion in its entirety but to grant defendants’ motion in part, specifically by dismissing (a) the federal claims against most of the correctional facility superintendents, (b) all state law claims against defendants Annetts, Artus, Conway, Goord, Payant, Sackett, and Tedford, (c) the false imprisonment claims brought by plaintiffs Massei, Trocchio, and Warren against the other defendant officials, and (d) all state law claims of assault and battery, abuse of process, and negligent or intentional infliction of emotional distress against all other defendants. See Order, dated May 19, 2010, at 3-4 (Docket Entry # 98). Following entry of this Order, all remaining claims against all remaining defendant physicians were voluntarily dismissed with prejudice by stipulation dated June 17, 2010 (Docket Entry # 102). This left pending against the remaining defendant officials the federal claims under § 1983 for violation of plaintiffs’ Fourth Amendment right against unreasonable seizure and Fourteenth Amendment rights to procedural and substantive due process and equal protection; the claims under both § 1983 and § 1985 for conspiracy; the state constitutional claims and state law claims for negligence and gross negligence; and the claims of plaintiffs Bailey, Brooks, and Burgos for false imprisonment.
Although the Court initially intended to issue a single Opinion giving its reasons for all these rulings, thereafter, upon defendants notifying the Court of their intention to seek an interlocutory appeal of the portion of this ruling denying qualified immunity to the defendant officials, the Court agreed to issue this Opinion and Order formally confirming its denial of the defense of qualified immunity and stating the reasons therefore, with a further Opinion and Order stating the reasons for the denial of summary judgment on the merits to follow in due course.
Qualified immunity shields public officials performing discretionary duties from liability for civil damages “as long as ‘their
The Court first examines defendant officials’ contention that they are entitled to qualified immunity in the context of plaintiffs’ claims that they were denied procedural due process when, pursuant to the SVP initiative promulgated and/or implemented by the defendant officials, the plaintiffs were involuntarily committed to civil confinement without advance written notice, an evaluation by court-appointed physicians, and, most importantly, a predeprivation judicial hearing. See, e.g., Bailey Amended Complaint for Damages ¶¶43-47; Brooks Amended Complaint for Damages ¶¶ 43-45, 47; Burgos Amended Complaint for Damages ¶¶ 47-51; Massei Amended Complaint for Damages ¶¶42-43, 45; Trocchio Amended Complaint for Damages ¶¶ 44-47; Warren Complaint for Damages ¶¶ 48-49, 55.
To successfully state a claim under 42 U.S.C. § 1983 for denial of procedural due process, plaintiffs must show that they (1) possessed an actual liberty interest, and (2) were deprived of that interest without being afforded sufficient procedural safeguards.
See Tellier v. Fields,
Defendants do not question that plaintiffs possess a liberty interest that was infringed when they were involuntarily committed to civil confinement. Indeed, it is well established that involuntary commitment to a psychiatric facility entails “a massive curtailment of liberty,”
Vitek v. Jones,
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
For purposes of assessing the defendant officials’ contention that they are entitled to summary judgment dismissing plantiffs’ due process and other claims because of qualified immunity, the facts must be taken most favorably to plaintiffs as long as they are supported by competent evidence. Plaintiffs’ evidence shows that none of the essential requirements set forth in Vitek was met. As each of the plaintiffs approached the end of his prison term, he was identified by DOCS as an inmate who met the criteria under the SVP initiative for evaluation for involuntary civil commitment. Bailey Defendants’ Statement of Undisputed Material Facts Pursuant to Local Rule 56.1 (“Def. 56.1”) ¶ 95, Bailey Plaintiffs Statement Pursuant to Local Rule 56.1 (“Pl. Counter 56.1”) ¶ 95; Brooks Def. 56.1 ¶ 95, Pl. Counter 56.1¶ 95; Burgos Def. 56.1 ¶ 94, Pl. Counter 56.1 ¶ 94; Massei Def. 56.1 ¶¶ 92, Pl. Counter 56.1 ¶ 92, Trocchio Def. 56.1 ¶ 97, Pl. 56.1 ¶ 97; Warren Def. 56.1 ¶ 89, Pl. Counter 56.1 ¶ 89. After OMH staff prepared background information sheets that included information about each plaintiffs criminal and disciplinary record, each of the plaintiffs, without the slightest advance notice, was thereupon transferred from his respective correctional facility to another facility for an initial evaluation by two physicians, neither of whom was court-appointed. Bailey Def. 56.1 ¶¶ 96, 98, Pl. Counter 56.1 ¶¶ 96, 98, Pl. 56.1 ¶¶ 107-09, Def. Counter 56.1 ¶¶ 107-09; Brooks Def. 56.1 ¶¶ 96, 98, Pl. Counter 56.1 ¶¶ 96, 98, Pl. 56.1 ¶¶ 121-22; Def. Counter 56.1 ¶¶ 121-22; Burgos Def. 56.1 ¶¶ 97-98, Pl. Counter 56.1 ¶¶ 97-98, Pl. 56.1 ¶¶ 132-33, Def. Counter 56.1 ¶¶ 132-33; Massei Def. 56.1 ¶ 93, Pl. Counter 56.1 ¶93, Pl. 56.1 ¶¶ 143-44, 146, Def. Counter 56.1 ¶¶ 143-44, 146; Trocchio Def. 56.1 ¶¶ 98, 101, Pl. 56.1 ¶¶ 98, 101, Pl. 56.1 ¶¶ 156-58, Def. Counter 56.1 ¶¶ 156-58; Warren Def. 56.1 ¶¶ 90, 93, Pl. Counter 56.1 ¶¶90, 93, Pl. 56.1 ¶¶ 171-73, Def. Counter 56.1 ¶¶ 171-73.
After the evaluation, each physician produced a written certificate indicating that, under the standard set forth in MHL § 9.27, the plaintiff evaluated by that physician was in need of involuntary commitment. Bailey Pl. 56.1 ¶ 111, Def. Counter 56.1 ¶ 111, Def. 56.1 ¶¶ 113, 135, Pl. Counter 56.1 ¶¶ 113, 135; Brooks Pl. 56.1 ¶ 125, Def. Counter 56.1 ¶ 125, Def. 56.1 ¶ 111, Pl. Counter 56.1 ¶ 111; Burgos Pl. 56.1 ¶ 135, Def. Counter 56.1 ¶ 135, Def. 56.1 ¶¶ 118, 145, Pl. Counter 56.1 ¶¶ 118, 145; Massei Pl. 56.1 ¶ 148, Def. Counter 56.1 ¶ 148, Def. 56.1 ¶ 114, Pl. Counter 56.1 ¶ 114; Trocchio Pl. 56.1 ¶ 156, Def. Counter 56.1 ¶ 156, Def. 56.1 ¶¶ 130, 146, Pl. Counter 56.1 ¶¶ 130, 146; Warren Pl. 56.1 ¶ 175, Def. Counter 56.1 ¶ 175, Def. 56.1 ¶¶ 113, 132, Pl. Counter 56.1 ¶¶ 113, 132. Upon receipt
After arriving at the MPC, each plaintiff was evaluated by a third physician, also not court-appointed, who confirmed the need for civil commitment. Bailey Def. 56.1 ¶¶ 147, 150, Pl. Counter 56.1 ¶¶ 147, 150; Brooks Def. 56.1 ¶¶ 118, 129, Brooks Pl. Counter 56.1 ¶¶ 118, 129; Burgos Def. 56.1 ¶¶ 149, 155, Pl. Counter 56.1 ¶¶ 149, 155; Massei Def. 56.1 ¶¶ 134, 144; Pl. Counter 56.1 ¶¶ 134, 144; Trocchio Def. 56.1 ¶¶ 148, 164, Trocchio Pl. Counter 56.1 ¶¶ 148,164; Warren Pl. 56.1 ¶ 182-83, Def. Counter 56.1 ¶¶ 182-83. No written notification of any of these psychiatric evaluations, or the reason for them, was provided to any of the plaintiffs prior to the evaluations, nor was any of the plaintiffs afforded a judicial hearing prior to being evaluated or committed. Bailey Pl. 56.1 ¶¶ 115-16, Def. Counter 56.1. ¶¶ 115-16; Brooks Pl. 56.1¶¶ 128-29, Def. Counter 56.1. ¶¶ 128-29; Burgos Pl. 56.1. ¶¶ 139-40, Def. Counter 56.1 ¶¶ 139-40; Massei Pl. 56.1 ¶¶ 151-52, Def. Counter 56.1 ¶¶ 151-52; Trocchio Pl. 56.1 ¶¶ 164-65; Def. Counter 56.1 ¶¶ 164-65; Warren Pl. 56.1 ¶¶ 180-81; Def. Counter 56.1 ¶¶ 180-81. It is thus obvious that, accepting plaintiffs’ evidence as accurate for purposes of this motion, plaintiffs’ civil confinement did not remotely comport with constitutional requirements. Nor do defendants allege that any of these deprivations was the result of negligence or oversight.
Cf. Daniels v. Williams,
As previously noted, defendants are entitled to qualified immunity if they show either that plaintiffs have failed to make out a violation of constitutional right or if the right at issue was not clearly established at the time of the alleged violation. With respect to the first prong, defendants argue that, despite their patent failure to comply with the essentials of procedural due process set forth in Vitek, (i) Vitek does not govern plaintiffs’ due process rights in this particular context, and (ii) the procedures here followed — largely derived from MHL § 9.27 — were constitutionally adequate based on a balancing of public and private interests.
As to
Vitek,
the defendants advance the same argument that this Court previously rejected in its July 10, 2009 Opinion: that because
Vitek
struck down Nebraska Law § 83-180(1), which dealt with inmates who were transferred during their sentences for treatment, but not § 83-180(3), which dealt with inmates transferred at the end
But even if it were otherwise and
Vitek
was not itself dispositive, no balancing of public and private interests can remotely justify what happened here. Defendants note that, pursuant to MHL § 9.27, each of the plaintiffs, within days after their civil confinement, was notified of the right to a post-deprivation hearing.
See
Bailey Defendants’ Memorandum of Law in Support of Motion for Summary Judgment (“Bailey Def. Mem.”) at 14; Brooks Def. Mem. at 12-13; Burgos Def. Mem. at 12-13; Massei Def. Mem. at 12-13; Trocchio Def. Mem. at 12; Warren Def. Mem. at 15. But this is not a case where post-deprivation notice and hearing somehow could be said to accord adequate due process. As the Supreme Court held more than 20 years ago in
Zinermon v. Burch,
Indeed, it would have been the simplest thing in the world to have all the required procedures undertaken before a given plaintiff completed his prison term and thus avoid any risk whatever that a plaintiff would be civilly committed, following the exercise of his prison term, without his full due process rights being accorded.
This is so obvious that no reasonable defendant official could have failed to miss it. Yet defendants, turning to the second prong of their qualified immunity defense, argue that plaintiffs’ asserted right to the aforementioned predeprivation safeguards was not clearly established at the time of the creation of the SVP initiative and plaintiffs’ subsequent commitments. See, e.g., Bailey Def. Mem. at 20-22.
“To be clearly established, ‘[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ”
Taravella,
Defendants’ principal argument that their actions were objectively reasonable is based on the assertion that, since at the time of the events here in question there had been a “two-decade practice of civilly committing inmates pursuant to MHL § 9.27,” and since the SVP initiative was patterned to some degree on MHL § 9.27, a reasonable state official would have believed the initiative accorded with due process. See, e.g., Bailey Def. Mem. at 22-23. 4
But this argument fails for several reasons. First, as a factual matter, plaintiffs have strenuously challenged the assertion that there was such a practice, see, e.g., Bailey Memorandum of Points and Authorities in Opposition to Defendants’ Rule 56 Motion at 35-36, and defendants have failed to come forward with little more than conclusory assertions to prove there was such a practice, let alone that it was well-known to the relevant officials, see, e.g., Bailey Def. Mem. at 23-24.
Second, the basic proposition that due process requires a predeprivation hearing unless there is an immediate danger to society was so well established by 2005, indeed, for decades prior, that New York’s own highest court, in upholding the use of MHL § 9.27 in the case of non-incareerated persons, had made this the
ratio decidendi:
“Due process does, ordinarily, demand reasonable notice and an opportunity to be heard
in advance
of confinement or restraint. However, as we declared in
Matter of Coates,
Third, Correction Law § 402, enacted in 1976, already provided a clear, constitutional predeprivation hearing for ascertaining mental illness on the part of an incarcerated person, thus demonstrating the absence of any need for the extraordinary deprivations imposed by superimposing the MHL § 9.27 practices here.
Fourth, while the test here is an objective one (what a reasonable official would have believed), it is not irrelevant that the plaintiffs here have advanced competent evidence from which a jury could conclude
The Court has considered defendants’ other arguments but finds them unpersuasive. For example, defendants argue that
Kansas v. Hendricks,
To be sure, the plaintiffs here are asserting claims, not just for deprivation of procedural due process, but also for deprivation of substantive due process and conspiracy, as well as state law claims for parallel state constitutional violations and for false imprisonment. But the gist of those other claims, as here alleged, is that Governor Pataki and his top aides knowingly conspired to deprive SVP detainees of their liberty in a manner that shocks the conscience because, in plaintiffs submission, they knew for a fact that they violating plaintiffs’ basic rights but chose for political advantage to so anyway. While defendants vehemently deny these allegations, plaintiffs have proffered sufficient competent evidence to make this a jury question. By the same token, if these allegations are true, there is no theory on which defendants would be entitled to qualified immunity on any of plaintiffs’ remaining claims.
Qualified immunity serves a critical function of ensuring that public officials can perform their duties without interference from the threat of litigation and monetary liability.
See Cornejo v. Bell,
Accordingly, for the foregoing reasons, the Court hereby confirms its determination, in the form of this Opinion and Order from which an interlocutory appeal may be taken, that the defendant officials are not entitled to summary judgment on their defense of qualified immunity.
SO ORDERED.
Notes
. The individual defendants who are not officials are Olusegun Bello, Charles Chung, Lawrence Farago, Prabhakar Gumbala, Luis Hernandez, Michael Kunz, Samuel Langer, Jean Liu, Abadul Qayyum, Mary Ann Ross, Emilia Rutigliano, Ayodeji Somefun, and Allan Wells (collectively, the “defendant physicians’’).
. In Warren’s case, he was approaching his conditional release date, and the certificate of release to parole supervision specified that his residence would be the MPC. See Warren Def. 56.1 ¶¶ 147-48, Pl. Counter 56.1 ¶¶ 147-48.
. What constitutes “a reasonable defendant” must, of course, be assessed in the context of the position a defendant held. Thus, in its recent decision in
Amore v. Novarro,
. In so arguing, defendants note that the Second Circuit in
Project Release v. Prevost,