Bailey v. PatakiBailey v. Pataki
This appeal requires us to decide whether the civil commitment of the plaintiffs following the expiration of their sentences for sexually based criminal offenses constituted violations of their procedural due process rights redressable under
The plaintiffs’ commitments were effected not through the state‘s normal civil commitment procedures, but by means of an executive-branch effort aimed at preventing the release of some “sexually violent predators” (“SVPs“). The Governor of New York State at the time, Governor George E. Pataki, directed the State‘s Office of Mental Health (“OMH“) and Department of Correctional Services (“DOCS“) to develop a plan whereby he could take executive action to implement an initiative (the “SVP Initiative” or the “Initiative“) that would result in the involuntary commitment of selected SVPs to state psychiatric facilities after the expiration of their criminal sentences. The plaintiffs, who were committed pursuant to this initiative, assert a variety of claims against Governor Pataki and officials of OMH and DOCS.
In this appeal, the defendants assert that the district court erred when it denied their motion for summary judgment on the plaintiffs’ procedural due process claims, concluding that the defendants are not entitled to qualified immunity. The plaintiffs’ claims for denial of procedural due process are premised on the allegation that they were committed pursuant to the SVP Initiative without the benefit of notice or an opportunity for a hearing prior to their commitment.
We agree with the district court that there is sufficient evidence in the record to support the plaintiffs’ procedural due process claims and therefore defeat the motion for summary judgment. We also conclude that at the time of the Initiative, the constitutional principle that, absent some emergency or other exigent circumstance, an individual cannot be involuntarily committed to a psychiatric institution without notice and a predeprivation hearing was firmly established. Because the law pertaining to the involuntary civil commitment of prisoners was firmly established, the district court properly determined that the defendants should not enjoy qualified immunity.
BACKGROUND
The SVP Initiative
In June 2005, a recently-paroled sex offender murdered a woman in the parking lot of the Galleria Mall in White Plains, New York. Governor Pataki had previously attempted to enact legislation providing additional avenues for the commitment of dangerous sex offenders,1 but after the
In order to put the governor‘s policy into effect, OMH officials began engaging in daily discussions about how to implement a civil commitment initiative. Miraglia testified that the “general tenor” of these meetings reflected “concern about dangerous repeat sex offenders being released to the community” and “some frustration about legislative inaction.” Miraglia Dep. at 48; Joint App‘x at 136. Discussions eventually centered on using either Correction Law § 402 or Mental Hygiene Law § 9.27 for this purpose. The two statutes are substantially different.
Section 9.27 of the Mental Hygiene Law (“MHL“), codified in Article 9 of the MHL and entitled “Involuntary admission on medical certification,” allows the director of a hospital to accept any patient “alleged to be mentally ill and in need of involuntary care and treatment upon the certificates of two examining physicians.”
Correction Law § 402 is entitled “Commitment of mentally ill inmates.” Under that law, if a staff physician at a prison informs the prison superintendent that an inmate is mentally ill, the superintendent asks a “judge of the county court or justice of the supreme court in the county” to appoint two physicians to examine the inmate.
The state officials dealing with the matter ultimately decided that
Sharon Carpinello, Commissioner of the OMH, presented the proposed SVP Initiative, utilizing
Under the Initiative, the identified inmates would be subject to a review of their criminal histories, and then to an examination by two physicians, who would determine whether they posed a risk to the public, or suffered from a mental illness, and therefore needed inpatient care and treatment. If the physicians recommended civil commitment, the inmate would be transferred to a psychiatric center and examined by a psychiatrist to confirm the diagnosis. Once admitted to the facility, the inmate would begin undergoing a specialized course of treatment.
Implementation of the Initiative began almost immediately. Under Defendant Glenn Goord‘s direction, DOCS identified SVPs scheduled for release and made the presentence reports for those inmates available to OMH. OMH then compiled relevant information on the inmates, including their “OMH level,” which did not include a specific diagnosis, and a description of the offense of conviction. Between September 2005 and January 2006, Amsler personally compiled the information about the identified inmates and provided that information to OMH personnel. She completed two documents for each inmate, a “FPMS/DMHIS” overview and a “Static 99” evaluation. Pls.’ Statement of Uncontested Material Facts Pursuant to Local Rule 56.1, at ¶ 85; Joint App‘x 87, citing Amsler Dep.2
Every inmate identified by DOCS as a potential SVP was evaluated for civil commitment by OMH. Any inmate who refused to submit to the evaluation was subject to disciplinary action and refusal could have constituted a parole violation. The DOCS Superintendent then applied for the civil commitment of SVP inmates who had been deemed to meet the criteria for civil commitment and had been examined by two physicians who had so certified. The inmates received no advance notice that they would be transferred or subject to a civil commitment evaluation.
While the procedures for commitment used in the SVP Initiative tracked
One person involved with the Initiative wrote in an e-mail under a heading “Operational Concerns and Challenges,” that “[e]xpertise in the treatment of sexual offenders is not widely available among current OMH staff, and the majority of clini
Another OMH physician explained that she was “asked to make a prediction of the risk of possible recidivism to keep the community safe,” whereas the Article 9 standard, by contrast, “is based on if the individual is harmful to himself and others and that if this is deemed the case then the certification is good for a period of 72 hours.” Dep. of Mary Ann Ross, Sept. 24, 2009, at 437-39; Joint App‘x at 1671-73.
The SVP Initiative‘s evaluation was based in part on the Static 99 form, which estimated an inmate‘s risk of future recidivism in five, ten, and fifteen years, and which had not previously been used in the State‘s civil commitment process. When the Initiative began, most of the OMH physicians did not have any experience using the Static 99 form, and some were “not comfortable” using it. Smith Dep. at 157; Joint App‘x at 1255.
The Plaintiffs’ Commitment
Plaintiff Kenneth Bailey was among the first to be evaluated pursuant to the new Initiative. He and the other plaintiffs contend that had it not been for its implementation, they would not have been evaluated for civil commitment at all. Bailey had been convicted multiple times for sexual abuse of children and has admitted to molesting twenty-three girls. His most recent conviction stemmed from the repeated sexual abuse of his daughter for which, in 1994, he was convicted and sentenced to six to twelve years’ imprisonment. Some eleven years later, on September 28, 2005—less than two weeks before he was scheduled for release—Bailey was transferred from Wyoming Correctional Facility to Attica Correctional Facility. Three days before his scheduled release, two OMH physicians evaluated Bailey for involuntary civil commitment pursuant to the Initiative. Both physicians produced written certificates stating that Bailey qualified for civil commitment.
When Bailey‘s sentence expired, the Superintendent of Attica applied for Bailey‘s involuntary commitment and DOCS transported Bailey to the Manhattan Psychiatric Center (“MPC“) the same day. Bailey did not request a hearing following his commitment because he apparently thought he would be at MPC for only a few weeks or months. He contends that he was not aware that he was a psychiatric patient there. The commitment proceedings for the other plaintiffs in this action followed similar patterns. See Bailey v. Pataki, 722 F.Supp.2d 443, 448-49 (S.D.N.Y.2010).
The plaintiffs petitioned for habeas corpus relief in state court, arguing that the use of
The District Court Opinion
In October 2008, the plaintiffs filed this action alleging claims under
On March 31, 2010, both sides moved for summary judgment. The district court (Jed S. Rakoff, Judge) denied the plaintiffs’ motion for summary judgment in full, and granted in part and denied in part the defendants’ motion for summary judgment.4 Relevant to this appeal, the district court rejected the defendants’ argument that they are entitled to qualified immunity on the plaintiffs’ procedural due process claim.
In its opinion, the district court first addressed whether the plaintiffs had made out a procedural due process claim for their “involuntar[y] commit[ment] to civil confinement without advance written notice, an evaluation by court-appointed physicians, and ... a predeprivation judicial hearing.” Bailey, 722 F.Supp.2d at 447. The court explained that a confined prisoner “presents no immediate danger to the community, [therefore] full due process must be accorded before he can be transferred, upon completion of his sentence, to involuntary civil commitment.” Id. at 447-48. Relying on Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980), the court determined that such process must include notice and “a predeprivation adversary hearing ... at which the prisoner can see the evidence for the commitment and be given an opportunity to be heard in person, as well as present testimony and engage in cross-examination of the state‘s witnesses.” Bailey, 722 F.Supp.2d at 448.
The district court then examined whether the process it had determined was constitutionally required had been afforded to the plaintiffs in this case. It concluded that the “plaintiffs’ civil confinement did not remotely comport with constitutional requirements.” Id. at 449.
The district court emphasized that
[I]t is not irrelevant that the plaintiffs here have advanced competent evidence from which a jury could conclude that the decision to deprive SVP detainees of a predeprivation hearing by replacing the procedures of directly applicable
Correction Law § 402 with those of seemingly inapplicableMHL § 9.27 was a deliberate decision taken for political reasons. To deprive plaintiffs of their constitutional rights for political gain can never be reasonable.
The defendants appeal.
DISCUSSION
We review de novo a district court‘s denial of summary judgment on qualified immunity grounds, and construe all evidence and draw all reasonable inferences in the non-moving party‘s favor. Amore v. Novarro, 624 F.3d 522, 529 (2d Cir.2010). Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
I. Procedural Due Process Claim
The plaintiffs allege that they were denied their Fourteenth Amendment right to procedural due process when they were committed to a psychiatric institution without the benefit of notice, psychiatric examination by court-appointed physicians, or a judicial hearing prior to their commitment. In order to state a claim under
On appeal, the defendants urge that the district court erred in reading Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980), as mandating especially stringent due process procedures for prisoners, arguing that while notice and a hearing are generally required, nothing in Vitek prohibits brief periods of prehearing commitment if a timely hearing is later offered. The defendants insist that courts have upheld identical prehearing commitments of prisoners that the district court concluded did not satisfy due process here, and that in any event the procedures employed did indeed comply with due process requirements. The district court looked to the Supreme Court‘s decision in Vitek in determining what procedural protections are required before an inmate can be civilly committed without his consent consistent with due process standards. Bailey, 722 F.Supp.2d at 447-48. The court read Vitek to require notice, a predeprivation adversarial hearing, and a written statement by the decision maker disclosing the
Vitek addressed an as-applied challenge to the constitutionality of a Nebraska statute that provided for the transfer of an inmate to a psychiatric facility at the direction of the State‘s Director of Correctional Services if a psychologist or psychiatrist concluded that the prisoner “‘suffers from a mental disease or defect‘” that the prisoner‘s current facility could not properly treat. Vitek, 445 U.S. at 483, 100 S.Ct. 1254. Such a transfer remained valid until the expiration of the prisoner‘s sentence, at which point civil commitment proceedings were required prior to continued confinement. Id. at 483-84, 100 S.Ct. 1254.
The plaintiff in Vitek was an inmate who had been transferred to a psychiatric facility after setting his mattress on fire while in solitary confinement. Id. at 484, 100 S.Ct. 1254. The Vitek Court considered whether the transfer of a prisoner to a state mental hospital implicated a liberty interest triggering due process protection, and concluded that the plaintiff‘s “objective expectation” based on state law and practice that he would not be transferred to a mental hospital if his condition could be treated in prison did create a liberty interest requiring “appropriate procedures” prior to its deprivation. Id. at 489-90, 100 S.Ct. 1254. The Court emphasized the “stigmatizing consequences of a transfer to a mental hospital” and the “mandatory behavior modification” treatment the prisoner would undergo once at that hospital. Id. at 494, 100 S.Ct. 1254.
The district court in Vitek identified seven safeguards it concluded were required to protect the plaintiff‘s liberty interest. Among them were pretransfer notice to the prisoner, a pretransfer hearing at which the prisoner could present and cross-examine witnesses, and the right to counsel. See id. at 494-95, 100 S.Ct. 1254.
In considering these requirements, the Supreme Court explained that while the State has a substantial interest in “segregating and treating mentally ill patients,” “[t]he interest of the prisoner in not being arbitrarily classified as mentally ill and subjected to unwelcome treatment is also powerful,” and the “risk of error ... is substantial enough to warrant appropriate procedural safeguards against error.” Id. at 495, 100 S.Ct. 1254. The Court acknowledged that the inquiry into whether a prisoner should be placed in a psychiatric facility is “essentially medical,” but concluded that “[t]he medical nature of the inquiry ... does not justify dispensing with due process requirements. It is precisely the subtleties and nuances of psychiatric diagnoses that justify the requirement of adversary hearings.” Id. (quotation marks and citation omitted). The Court concluded that the procedures prescribed by the district court were “appropriate in the circumstances present....” Id. at 496, 100 S.Ct. 1254.5
Vitek is plainly relevant to this case. It confirms the plaintiffs’ contention that a prisoner has a liberty interest in the essential nature of his confinement, and that this interest must be safeguarded with appropriate procedures. But it does not automatically follow from the Vitek Court‘s endorsement of the procedures mandated by the district court in that case that the same process is required in every case. See id. (concluding that the proce
Indeed, the facts and legal posture of Vitek differ significantly from those before us. The plaintiff in Vitek faced confinement in a psychiatric institution for the duration of his prison sentence based on the opinion of a single doctor, with no opportunity for an additional hearing. The procedures at issue in Vitek, therefore, provided fewer safeguards than were offered to the plaintiffs here. And because the Vitek Court never discussed whether the availability of a postdeprivation hearing negates the need for a predeprivation hearing, its applicability to this case is limited.
The Supreme Court‘s decision in Zinermon v. Burch, 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990), however, does offer guidance as to when a postdeprivation hearing would survive constitutional scrutiny. There, the Court considered the case of a patient admitted to a state mental health hospital after completing voluntary admission forms. The patient later alleged that he was a paranoid schizophrenic and had been unable to give informed consent to his admission. The defendants, he asserted, should have afforded him the procedural safeguards required for involuntary commitment, including a hearing. Id. at 123-24, 110 S.Ct. 975.
Quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the Court described the factors to be considered in determining what procedural protections are necessary in a particular case:
“First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”
Zinermon, 494 U.S. at 127, 110 S.Ct. 975.
The Zinermon Court observed that, applying the Mathews test, it “usually has held that the Constitution requires some kind of hearing before the State deprives a person of liberty or property.” Id. (emphasis in original). But, the Court continued, a postdeprivation hearing might satisfy due process where a predeprivation hearing is “unduly burdensome in proportion to the liberty interest at stake” or “where the State is truly unable to anticipate and prevent a random deprivation of a liberty interest.” Id. at 132, 110 S.Ct. 975. “[W]here the State feasibly can provide a predeprivation hearing,” however, “it generally must do so regardless of the adequacy of a postdeprivation ... remedy.” Id.
The Court concluded that the defendants could be liable to the plaintiff under his section 1983 claim for deprivation of his procedural due process rights because it was foreseeable that a mentally ill patient incompetent to give informed consent would nonetheless sign a voluntary admission form and because the Court could not “say that predeprivation process was impossible” under the circumstances. Id. at 136-37, 110 S.Ct. 975.
The deprivation here seems to us to have been as foreseeable as it was in
Application of the Mathews balancing test supports the conclusion that predeprivation process was required here and that postdeprivation remedies were constitutionally insufficient. See Mathews, 424 U.S. at 334-35, 96 S.Ct. 893. With respect to the “private interest” aspect of the standard, the defendants acknowledge that “involuntary commitment is a significant curtailment of liberty,” but argue that because of the “extremely brief” period of potential prehearing commitment, the safeguards required are not as significant as they would otherwise be. Appellants’ Br. 30. We think there can be no serious doubt that the liberty interests implicated here are of a high order. Not only were the plaintiffs’ physical freedoms curtailed, but they were also subject to specialized mental health treatment. This treatment included the use of a “penile plethysmograph,” which the First Circuit has explained is a “strain gauge strapped to an individual‘s genitals while sexually explicit pictures are displayed in an effort to determine his sexual arousal patterns.” Harrington v. Almy, 977 F.2d 37, 44 (1st Cir.1992). One can imagine that to be something less than a dignity inspiring experience.
Classification as an SVP also constitutes a fundamental change in an inmate‘s status and privileges. An SVP committed to a psychiatric hospital cannot gain release until he has secured either employment or vocational training, despite the fact that any potential employer must be notified of his SVP status. An SVP also suffers the stigma of the label itself, which connotes a likelihood of recidivist sexually violent behavior, and of a diagnosis of mental illness. And although it may be true that SVPs have already been convicted of sex offenses carrying significant stigma, that the additional stigma is only incremental does not render it illusory.
As Vitek confirmed, a prisoner—even one convicted of an atrocious crime—maintains a liberty interest in the conditions relating to the essential nature of his confinement. Here, not only did those committed pursuant to the SVP Initiative face a material change in the nature of their confinement, but their confinement was also prolonged.
With regard to the second factor in the Mathews test—“risk of an erroneous deprivation of such interest through the procedures used,” Zinermon, 494 U.S. at 127, 110 S.Ct. 975—the defendants insist that the risk of such an erroneous deprivation during the five-day period before a committed SVP is entitled to a hearing is “slight” because of the safeguards provided in Article 9. Appellants’ Br. 30. The defendants’ argument is not without force. There were, on paper, procedures intended to mitigate the risk of an erroneous deprivation. For example, three separate medical professionals were required to sign off on every commitment. And, as the defendants point out, fewer than 20 percent of those evaluated under the SVP Initiative were ultimately committed.
Despite these safeguards, several factors increased the risk that an inmate would be erroneously committed under the Initiative. The OMH physicians charged with examining the prisoners were unfamiliar with the standards for assessing sex
Although it may be dangerous to overstate the importance of the fact that the Initiative was quickly put into place in a politically charged environment, it is difficult to ignore (as the district court did not). Because of the infancy of the Initiative and the lack of training or formal procedures, coupled with significant political pressure, the risk of error seems to us to have been enhanced. See Rodriguez v. City of New York, 72 F.3d 1051, 1062 (2d Cir.1995) (“Though we agree with the district court that due process does not require a guarantee that a physician‘s assessment of the likelihood of serious harm be correct, ... due process does demand that the decision to order an involuntary emergency commitment be made in accordance with a standard that promises some reasonable degree of accuracy.“). Additional safeguards would unquestionably have lessened this risk. If the plaintiffs were afforded notice and a hearing prior to their commitments, the decision as to whether to commit would have been undertaken by a neutral decisionmaker with the benefit of an adversarial hearing.
The defendants argue that the availability of a postdeprivation hearing mitigated the risk of erroneous deprivation. They point out that none of the plaintiffs requested a hearing following his commitment. Although this is true, the plaintiffs’ filing of a habeas corpus petition in New York State court and Bailey‘s allegation that he did not know that he could request such a hearing, suggest that the availability and contours of the process likely were not clear to the plaintiffs.6
With respect to the third part of the Mathews test—the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail, Zinermon, 494 U.S. at 127, 110 S.Ct. 975—the defendants urge that predeprivation hearings would have imposed a substantial burden on the State. They note that during the first month of the Initiative, eighty prisoners were examined, twenty-one of whom were eventually committed, and that many of these prisoners were on the verge of being released. Because the SVP Initiative had begun only weeks before some of the plaintiffs were scheduled for release, the defendants contend, predeprivation hearings, in addition to conducting psychiatric evaluations, would have diverted scarce resources from the treatment of mentally ill inmates.
We disagree. Under the provisions of Article 9, the defendants should have been prepared to present their case for civil commitment at a hearing on five-days notice at any point after a civil commitment was effected. It does not follow that they could not have prepared for such a hearing in advance of commitment without incurring substantial additional expense or effort. The sole reason that holding predeprivation hearings would have unduly burdened the State is that a decision was made to create and implement the Initiative on a compressed timeline; any exceptional burden that the State faced was of its own making. We do not think this fact should work in the defendants’ favor—if it did, due process requirements could be curtailed by delaying the establishment of proper procedures until they became “too burdensome.”
Construing the evidence in the light most favorable to the plaintiffs, the facts
II. Qualified Immunity
The defendants are entitled to qualified immunity if they can establish either that (1) “a constitutional right was [not] violated” or (2) “the right was [not] clearly established.” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part on other grounds by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).7 As a part of this inquiry, the Court considers whether “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”8 Id. at 202, 129 S.Ct. 808.
Qualified immunity is an affirmative defense and the burden is on the defendant-official to establish it on a motion for summary judgment. See In re State Police Litig., 88 F.3d 111, 123 (2d Cir.1996). We have already determined that there is sufficient evidence in the record to support, as a matter of law, the plaintiffs’ procedural due process claims. We therefore turn to the question of whether the right at issue was clearly established. In answering that question, we look to whether (1) the right was defined
For a right to be clearly established, it is not necessary that courts have agreed “upon the precise formulation of the standard.” Saucier, 533 U.S. at 202, 121 S.Ct. 2151. “Assuming, for instance, that various courts have agreed that certain conduct is a constitutional violation under facts not distinguishable in a fair way from the facts presented in the case at hand, the [defendants] would not be entitled to qualified immunity based simply on the argument that courts had not agreed on one verbal formulation of the controlling standard.” Id. at 202-03, 121 S.Ct. 2151.
The Supreme Court stated more than twenty years ago in Zinermon that “where the State feasibly can provide a predeprivation hearing ... it generally must do so regardless of the adequacy of a postdeprivation ... remedy....” Zinermon, 494 U.S. at 132, 110 S.Ct. 975. Unless a predeprivation hearing is “unduly burdensome in proportion to the liberty interest at stake” or “the State is truly unable to anticipate and prevent a random deprivation of a liberty interest,” predeprivation notice and a hearing are required before an individual may be deprived of a significant liberty interest. Id.
The defendants raise several arguments in support of their position that the right at issue here—notice and an adversarial hearing prior to civil commitment—was not so clearly established that a reasonable person in the defendants’ position would know that his conduct was unlawful. The defendants contend that the Second Circuit upheld the procedures laid out in Article 9 in Project Release v. Prevost, 722 F.2d 960 (2d Cir.1983), which examined the constitutionality of Article 9‘s provision allowing hospitalization for up to sixty days without a hearing unless one is requested. Project Release dealt, however, with the facial validity of Article 9, and explicitly left open the possibility of an as-applied challenge. Id. at 971. The plaintiffs do not contend that Article 9 is unconstitutional when utilized to take an acutely dangerous and mentally ill person off the streets—the basis upon which we upheld the statute in Project Release.
In that decision, we concluded that involuntary commitment without an automatic hearing within 48 hours was constitutional when dealing with “persons with a mental illness ‘for which care and treatment in a hospital is essential to such persons’ welfare and whose judgment is so impaired that [they are] unable to understand the need for such treatment.‘” Id. at 972 (quoting
The defendants also point out that the New York Appellate Division “found no constitutional violation in plaintiffs’ own cases when plaintiffs raised the identical due process claim on state habeas review.” Appellants’ Br. 37. (emphasis omitted). The defendants refer to State ex rel. Harkavy v. Consilvio, 29 A.D.3d 221, 812 N.Y.S.2d 496 (1st Dep‘t 2006), but that decision was reversed by the New York Court of Appeals, see State ex rel. Harkavy v. Consilvio, 7 N.Y.3d 607, 859 N.E.2d 508, 825 N.Y.S.2d 702 (2006). And although the Court of Appeals in Harkavy
The defendants cite several cases in which they contend that prehearing transfer and commitment of prisoners and sex offenders has been held to be constitutional. In Gay v. Turner, 994 F.2d 425 (8th Cir.1993) (per curiam), for example, the Eighth Circuit affirmed a grant of summary judgment for a defendant on the plaintiff‘s due process claim where the plaintiff, an inmate, had been transferred to a state mental hospital without a hearing. Id. at 426. That decision, however, was based on the plaintiff having signed transfer forms, and her failure to adduce any evidence that her consent was not voluntary. Id. at 427.
The defendants also rely on Aruanno v. Hayman, 384 Fed.Appx. 144 (3d Cir.), cert. denied, — U.S. —, 131 S.Ct. 835, 178 L.Ed.2d 567 (2010), in which the Third Circuit—in a non-precedential opinion—upheld a state-law provision allowing a court to order temporary commitment based on an ex parte submission from the State Attorney General. Id. at 150. Any individual committed under the statute was entitled to a hearing within twenty days of the commitment order. Id.
The factual circumstances in Aruanno differ significantly from those here. New Jersey had initiated civil commitment proceedings nearly a year before the plaintiff‘s release date, but was unable to hold a hearing due in part to the plaintiff‘s “repeated insistence that he be appointed new counsel.” Id. at 145. In addition, Aruanno was temporarily committed pursuant to a judicial order, albeit one based on an ex parte submission. Id. at 148 n. 8. Aruanno suffered from schizophrenia and refused to take his medication, which a doctor later testified presented a “very high” risk of future violence. Id. at 146. The non-precedential opinion was issued, moreover, over Judge McKee‘s dissent, which argued that “absent exigent circumstances, no justification exists for denying [the plaintiff] his due process right to notice prior to his involuntary commitment under the [act].” Id. at 152-53. He continued, “[i]t is clear that post-deprivation hearings are appropriate and constitutionally permissible in emergency situations where there is no realistic opportunity to afford prior notice to one whom the state wants to involuntarily commit. That is simply not the situation here....” Id. at 153. We agree.
The defendants also point to the procedures in the federal sex-offender commitment statute,
According to the defendants, the procedures set forth in Article 9 are more protective than are those in the federal statute because the latter permits the individual‘s release to be stayed for up to seventy-five days or more before his commitment hearing. See
We ultimately agree with the district court that “the basic proposition that due process requires a predeprivation hearing unless there is an immediate danger to society” was well established prior to 2005. Bailey, 722 F.Supp.2d at 451. Despite the litany of cases cited by the defendants to suggest that due process tolerates civil commitment of inmates without either notice or a hearing, each of those cases involved critical factors not present here. In none of the cases was a civil commitment effected without notice or a predeprivation hearing where the inmate was safely confined, and, indeed, where the standard the inmate met was not one of immediate and acute dangerousness but rather potential recidivism five, ten, or fifteen years after his release. See, e.g., Glass v. Mayas, 984 F.2d 55, 57 (2d Cir.1993) (upholding involuntary commitment without a predeprivation hearing where the committed individual “was hospitalized following two reports he was threatening an individual with a gun,” had displayed behavior described by those who examined him as “hostile, guarded, angry, suspicious, uncooperative, and paranoid,” and “had an extensive psychiatric history, which included a history of violent behavior“). The defendants offer no Supreme Court or Second Circuit precedent for the proposition that due process is satisfied if an individual in the plaintiffs’ position has the opportunity to request a hearing after he has been labeled an SVP and civilly committed.
Except for emergent or otherwise unusual circumstances, such as where an emergency makes it necessary for the State to act immediately to avoid imminent harm to the person being restrained or to the public, or where predeprivation process is highly impracticable, the Supreme Court has long held that “the Constitution requires some kind of a hearing before the State deprives a person of liberty.” Zinermon, 494 U.S. at 127, 110 S.Ct. 975 (emphasis in original). See also United States v. James Daniel Good Real Prop., 510 U.S. 43, 62, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993) (“Unless exigent circumstances are present, the Due Process Clause requires the Government to afford notice and a meaningful opportunity to be heard before seizing real property....“); Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (“An essential principle of due process is that a deprivation of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the nature of the case.” (quotation marks and citation omitted)); Vitek, 445 U.S. at 496, 100 S.Ct. 1254 (“[N]otice is essential to afford the prisoner an opportunity to challenge the contemplated action and to understand the nature of what is happening to him.“); Burtnieks v. City of New York, 716 F.2d 982, 988 (2d Cir.1983) (observing that “the existence vel non of an emergency ... is a material fact” in determining whether a predeprivation hearing is constitutionally required).
Furthermore, the decision to apply the procedures of Article 9 to the plaintiffs was made despite the fact that there was a law in place,
III. Plaintiffs’ Additional Claims
The defendants, citing Sadallah v. City of Utica, 383 F.3d 34 (2d Cir.2004), argue that because they are entitled to qualified immunity on the plaintiffs’ procedural due process claims, the defendants are also entitled to summary judgment on the plaintiffs’ remaining federal and state claims. The court in Sadallah explained that “[n]ormally, we would not have jurisdiction to consider plaintiffs’ [additional] claims ... because only the issue of ... entitlement to qualified immunity was immediately appealable. When, however, an appellate court ‘has taken jurisdiction over one issue in a case, it may, in its discretion, exercise jurisdiction over an independent but related question that is inextricably intertwined with the [appealable issue] or is necessary to ensure meaningful review of that issue.‘” Id. at 39 (quoting Ierardi v. Sisco, 119 F.3d 183, 189 (2d Cir.1997)). Specifically, the defendants urge that because the gist of the plaintiffs’ other claims is the existence of a deliberate conspiracy to violate the plaintiffs’ rights, those claims must fail because the right at issue was not clearly established.
We decline to exercise jurisdiction over the plaintiffs’ other claims. Reaching these additional claims is not necessary to ensure meaningful review of the qualified immunity question, nor are the claims “inextricably intertwined” with that issue. Furthermore, as a practical matter, because we conclude that qualified immunity does not attach to the procedural due process claims, there would be no basis for dismissing the other claims against the defendants.
IV. Plaintiffs’ Summary Judgment Motion
Finally, the plaintiffs assert that the district court erred in not granting summary judgment in their favor on their procedural due process claims after determining that the defendants were not entitled to qualified immunity, and, in a later opinion, that each defendant participated in the constitutional deprivation.
CONCLUSION
We have considered all of the parties’ arguments, and for the reasons set forth above, we affirm the decision of the district court.
Notes
This is not a debate we need enter inasmuch as we conclude that qualified immunity is not available to the defendants irrespective of which way the test is articulated.