Bailey v. Pataki

• Decision Date: 14 February 2013
• Docket Number: Docket No. 10–2563.
• Citation: 708 F.3d 391
• Parties: Kenneth BAILEY, Plaintiff–Appellee, Robert Trocchio, Jorge Burgos, Jr., Louis Massei, Robert Warren, Charles Brooks, Consolidated Plaintiffs–Appellees, v. George PATAKI, former Governor of New York State, Eileen Consilvio, former Executive Director, Manhattan Psychiatric Center and Kirby Forensic Psychiatric Center, John Doe, # 1, Commissioner of the New York State Department of Corrections, John Doe, # 2, Commissioner of the New York State Office of Mental Health, John Doe, # 3, Superintendent of Wyoming Correctional Facility, John Doe, # 4, Superintendent of Attica Correctional Facility, John Doe, # 5, Superintendent of the Downstate Correctional Facility, John Doe, # 6 through 20, medical personnel who examined and evaluated plaintiff pursuant to New York State Mental Hygiene Law Article 9, Glenn S. Goord, Sharon Carpinello, Michael Giambruno, James Conway, Paul Annetts, Emilia Rutigliano, Prabhakar Gumbula, Allan Wells, Defendants–Appellants, Jonathan Kaplan, Olusegun Bello, Mary Ann Ross, Ayodeji Somefun, Michal Kunz, William Powers, Lee E. Payant, Lawrence Farago, Luis Hernandez, Samuel Langer, Robert Dennison, Former Chairman of the New York State Board of Parole and Chief Executive Officer of the New York State Division of Parole, Jeffrey Tedford, Former Deputy Superintendent of Security at Clinton Correctional Facility, William J. Sackett, Facility Senior Parole Officer, Clinton Correctional Facility, Jean Liu, psychiatrist who evaluated plaintiff for possible civil commitment, Abadul Qayyum, Charles Chung, Dale Artus, Former Superintendent of Clinton Correctional Facility, Consolidated Defendants–Appellants.
• Court: U.S. Court of Appeals — Second Circuit

708 F.3d 391

Kenneth BAILEY, Plaintiff–Appellee,Robert Trocchio, Jorge Burgos, Jr., Louis Massei, Robert Warren, Charles Brooks, Consolidated Plaintiffs–Appellees,

v. George PATAKI, former Governor of New York State, Eileen Consilvio, former Executive Director, Manhattan Psychiatric Center and Kirby Forensic Psychiatric Center, John Doe, # 1, Commissioner of the New York State Department of Corrections, John Doe, # 2, Commissioner of the New York State Office of Mental Health, John Doe, # 3, Superintendent of Wyoming Correctional Facility, John Doe, # 4, Superintendent of Attica Correctional Facility, John Doe, # 5, Superintendent of the Downstate Correctional Facility, John Doe, # 6 through 20, medical personnel who examined and evaluated plaintiff pursuant to New York State Mental Hygiene Law Article 9, Glenn S. Goord, Sharon Carpinello, Michael Giambruno, James Conway, Paul Annetts, Emilia Rutigliano, Prabhakar Gumbula, Allan Wells, Defendants–Appellants,Jonathan Kaplan, Olusegun Bello, Mary Ann Ross, Ayodeji Somefun, Michal Kunz, William Powers, Lee E. Payant, Lawrence Farago, Luis Hernandez, Samuel Langer, Robert Dennison, Former Chairman of the New York State Board of Parole and Chief Executive Officer of the New York State Division of Parole, Jeffrey Tedford, Former Deputy Superintendent of Security at Clinton Correctional Facility, William J. Sackett, Facility Senior Parole Officer, Clinton Correctional Facility, Jean Liu, psychiatrist who evaluated plaintiff for possible civil commitment, Abadul Qayyum, Charles Chung, Dale Artus, Former Superintendent of Clinton Correctional Facility, Consolidated Defendants–Appellants.

Docket No. 10–2563.

United States Court of Appeals, Second Circuit.

Argued: Oct. 31, 2011.

Decided: Feb. 14, 2013.

Ameer Benno, Benno & Associates, New York, NY, (Richard Sullivan, Jeffrey Rothman, on the brief), for Plaintiffs–Appellees.

Cecelia C. Chang, Assistant Solicitor General, (Barbara D. Underwood, Solicitor General, Benjamin N. Gutman, Deputy Solicitor General, on the brief), for Andrew M. Cuomo, Attorney General of the State of New York, New York, NY, for Defendants–Appellants.

Before: McLAUGHLIN, SACK, and HALL, Circuit Judges.

SACK, Circuit Judge:

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 42 U.S.C. § 1983, and, if so, whether the defendants are nonetheless entitled on the record before the district court to summary judgment dismissing the procedural due process claims on the grounds of qualified immunity.

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 murder, “momentum to do something around [sic.] dangerous sex offenders increased,” according to associate director of OMH's Forensic Services Division, Richard Miraglia, who participated in the creation and implementation of the SVP Initiative. Dep. of Richard Miraglia, Nov. 24, 2009 (“Miraglia Dep.”), at 62; Joint App'x at 147. In an October 2005 press release, Governor Pataki's office explained that during this time period he “directed that every sexually violent predator (SVP) in State custody be evaluated for involuntary civil commitment before being released from prison. He directed [OMH] and [DOCS] to push the envelope of the State's existing involuntary commitment law because he couldn't wait any longer for the Assembly Leadership to bring his legislation to the floor for a vote.” Press Release, N.Y. State Executive Chamber, Governor: U.S. Dep't of Justice Adds N.Y. to Nat'l Sex Offender Public Registry Web Site (Oct. 24, 2005); Joint App'x at 215.

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.” MHL § 9.27(a). The director must also receive a sworn application explaining why the patient needs mental health treatment. Id. After the patient arrives at the hospital, a member of the hospital's psychiatric staff is required to examine him and confirm that he should be admitted. MHL § 9.27(e). The law requires that the nearest relative of the patient, or any other person the patient has designated, be given notice of the involuntary admission within five days of admission. MHL § 9.29(b). Within sixty days of admission, the patient or a friend or relative can request a hearing on the involuntary admission, which is required to be held within five days of receipt by the hospital director of notice of the request. MHL § 9.31(a). If no hearing has been held or court order issued, or if the patient does not consent to the admission, the hospital director is required to seek a court order within sixty days of the patient's involuntary admission if the director wishes to pursue the matter. MHL § 9.33(a).

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. Correction Law § 402(1). If both physicians conclude that hospitalization is appropriate, they must produce certificates to that effect. Id. The superintendent is then required to apply to the court for a commitment order, and personally serve notice on the inmate and his or her closest relative or, if relatives are unknown or not within the state, “any known friend,” five days prior to the commitment. Correction Law § 402(3). The Mental Hygiene Legal Services must then inform the inmate (or, in appropriate cases, others concerned with the inmate's welfare) of “the procedures for placement in a hospital and of the inmate's right to have a hearing, to have judicial review with a right to a jury trial, to be represented by counsel and to seek an independent medical opinion.” Id. The inmate is entitled to request a hearing before a judge prior to any transfer to a psychiatric hospital. Correction Law § 402(5). The procedural protections in section 402 may only be bypassed where admission to a hospital is sought on an emergency basis. Correction Law § 402(9).

The state officials dealing with the matter ultimately decided that MHL § 9.27 would be the appropriate law through which to implement the SVP Initiative. The parties disagree as to whether MHL § 9.27 had previously been utilized for the civil commitment of inmates. Scott Clair, who worked for OMH at Attica Correctional Facility between 1976 and 2005, testified that use of Correction Law § 402 was standard procedure for the civil commitment of prisoners, and that he was unfamiliar with MHL § 9.27. Dep. of Scott Clair, January 14, 2010 (“Clair Dep.”), at 43–44; Joint App'x at 1200–01. Hal Smith, who served as executive director of the Central New York Psychiatric Center, an OMH facility, similarly testified that prior to the...