Bailey v. Pataki .

• Citation: 722 F.Supp.2d 443
• Decision Date: 06 July 2010
• Docket Number: No. 08 Civ. 8563 (JSR).,08 Civ. 8563 (JSR).
• Parties: Kenneth BAILEY, et al., Plaintiff, v. George PATAKI, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

722 F.Supp.2d 443

Kenneth BAILEY, et al., Plaintiff,

v.George PATAKI, et al., Defendants.

No. 08 Civ. 8563 (JSR).

United States District Court,S.D. New York.

July 6, 2010.

Ameer Nadav Benno, New York County District Attorney's Office, Reza Rezvani, Rezvani Law Firm, Jeffrey Adam Rothman, Jeffrey Rothman-Attorney at Law, Justin M. Blitz, Shandell, Blitz, Blitz & Bookson, LLP, New York, NY, for Plaintiff.

Rachael C. Anello, Attorney General of the State of New York, Edward J. Curtis, Jr., New York State Department of Law, New York, NY, for Defendants.

OPINION AND ORDER

JED S. RAKOFF, District Judge.

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 confinement following completion of their criminal sentences of certain inmates who had been convicted of qualifying sexual offenses. Plaintiffs' Statement of Uncontested Material Facts Pursuant to Local Rule 56.1 (“Pl. 56.1”) ¶ 4; Defendants' Response to Plaintiffs' Statement of Uncontested Material Facts Pursuant to Local Rule 56.1 (“Def. Counter 56.1”) ¶ 4. But when the New York State Assembly would not bring the proposed legislation to a vote, id. ¶ 5, Pataki proceeded unilaterally by promulgating on September 12, 2005 an executive initiative requiring indefinite civil confinement in State psychiatric hospitals of criminal inmates who, at the completion of their terms of imprisonment, were deemed to be “sexual violent predators” (“SVPs”), id. ¶ 7. This was known as the Sexual Violent Predator (“SVP”) initiative.

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, 7 N.Y.3d 607, 825 N.Y.S.2d 702, 859 N.E.2d 508 (2006). Although the Harkavy court did not have reason to reach the constitutional issue, Judge Robert S. Smith, concurring, noted that if MHL § 9.27 was applied in such a case “it would raise serious constitutional problems” because the justification for the absence of a predeprivation hearing under § 9.27- viz., the imminent danger of the mentally ill person to society-is absent in the case of an incarcerated convict. Id. at 615, 825 N.Y.S.2d 702, 859 N.E.2d 508.

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.

Similar violations are also alleged under 42 U.S.C. § 1985(3) (involving conspiracy) and under various provisions of New York State law.

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, 636 F.Supp.2d 288 (S.D.N.Y.2009), the Court denied this motion without prejudice to its being renewed at the close of discovery. See Opinion and Order, July 10, 2009, 636 F.Supp.2d at 295-96 (Docket Entry # 31). Following extensive discovery and other motion practice, both sides moved for summary judgment on March 31, 2010. Specifically, the defendants moved for summary judgment in their favor on all claims, both on the ground of qualified immunity and on the merits, and plaintiffs moved for summary judgment against defendants George Pataki, Eileen Consilvio, Glenn S. Goord, Sharon Carpinello, Paul Annetts, Dale Artus, James Conway, Robert Dennison, and Leo E. Payant (the “defendant officials”) on plaintiffs' due process claims under § 1983, their conspiracy claim under § 1985(3), and their false imprisonment claim under New York State law. ¹

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 conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Taravella v. Town of Wolcott, 599 F.3d 129, 133 (2d Cir.2010) (quoting Gilles v. Repicky, 511 F.3d 239, 243 (2d Cir.2007)). “When a defendant invokes qualified immunity to support a motion for summary judgment, courts engage in a two-part inquiry: whether the facts shown ‘make out a violation of a constitutional right,’ and ‘whether the right at issue was clearly established at the time of defendant's alleged misconduct.’ ” Id. (citing Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009)). If either prong is missing, qualified immunity is warranted; however, the burden is on defendants to establish qualified immunity. “[B]ecause qualified immunity is an affirmative defense, it is incumbent upon the defendant to plead, and adequately develop, a qualified immunity defense during pretrial proceedings.” Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir.2007).

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, p...