Gerena v. Sullivan
| Decision Date | 26 August 2016 |
| Docket Number | No. 15-CV-489 (LEK/CFH),15-CV-489 (LEK/CFH) |
| Parties | CHARLES W. GERENA; et al., Plaintiffs, v. ANNE MARIE T. SULLIVAN; et al., Defendants. |
| Court | U.S. District Court — Northern District of New York |
CHRISTOPHER J. HUMMEL, ESQ.1
Assistant Attorney General
Plaintiffs pro se Charles W. Gerena, Richard Pellegrino, Donald Brusso, Justin A. Rathbun, and Richard Valle (collectively, "plaintiffs") bring this civil rights action allegingthat defendants, Anne Marie T. Sullivan, Commissioner of the New York State Office of Mental Health ("OMH"); Donna Hall, Associate Commissioner for OMH; Naomi J. Freeman, Deputy Director for OMH; Christopher Kunkle, Director for OMH; Maureen A. Bosco, Executive Director for OMH, Central New York Psychiatric Center ("CNYPC"); Terri B. Maxymillian, Director for OMH, Treatment Services at CNYPC; Christopher Fullem, Director for OMH, Sex Offender Treatment Program ("SOTP"); Timothy J. Lamitie, Director for OMH, Facility Administrative Services at CNYPC; Jeffrey L. Nowicki, Chief of Services for OMH, SOTP at CNYPC; and Charmaine A. Bill, Treatment Team Leader for OMH, at CNYPC, violated their constitutional rights. Dkt. No. 1 ("Compl."). Presently pending is defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 12(b)(6) for failure to state a claim upon which relief may be granted. Dkt. No. 34. Plaintiff Charles W. Gerena filed a response in opposition to defendants' motion to dismiss, requesting an opportunity to amend the complaint. Dkt No. 41. Defendants did not file a reply. For the following reasons, it is recommended that defendants' motion be granted.
Plaintiffs commenced this action on April 23, 2015. Dkt. No. 1. Each plaintiff filed a motion for leave to proceed in forma pauperis. Dkt Nos. 2-6. By Decision and Order, dated July 30, 2015, Senior United States District Judge Lawrence E. Kahn granted each plaintiff's request to proceed in forma pauperis. Dkt. No. 11. Upon initial review ofplaintiffs' complaint pursuant to 28 U.S.C. § 1915(e), Judge Kahn determined that plaintiffs failed to establish the requirements for class certification under Fed. R. Civ. P. 23, as it is well-settled that pro se litigants, as non-attorneys, may not represent anyone other than themselves. Id. at 4-5. Accordingly, plaintiffs' class allegations were dismissed without prejudice, subject to renewal in the event that an attorney appears on plaintiffs' behalf. Id. at 5. Therefore, the only claims that remain are plaintiffs' allegations that defendants' violated their rights under the federal Constitution, and the laws of New York State, in addition to plaintiffs' claims that New York State Mental Hygiene Law Article 10 is unconstitutional as applied, and that their treatment plans do not comply with state court orders directing that they receive proper treatment. Id. at 3-4.
Plaintiffs filed an eighty-seven page complaint containing a litany of grievances against CNYPC, along with a history of New York's civil confinement statutes and the emergence of New York's SOTP. See Compl. The Court has endeavored to succinctly organize the relevant claims below.
Plaintiffs allege that, when they are transported away from the CNYPC facility, they are forced to wear black jackets with large silver letters forming the abbreviation "SOTP" emblazoned on the back. Compl. at 33 ¶ 5. They are not allowed to wear their ownclothing outside, or inside of the facility. Id. at 33 ¶ 5; 38-39 ¶ 22; 57 ¶ 2; 61 ¶¶ 5, 9.
Plaintiffs allege that they are subjected to restraints that are "extremely painful and harmful. Compl. at 38 ¶ 22. They allege that CNYPC is the only SOTP facility that uses the "black box" and waist chain on residents. Id. at 57 ¶ 1. Use of the black box causes nerve damage, swelling, and lacerations. Id. at 57-58 ¶ 5.
Plaintiffs are not allowed to go outside at their leisure. Compl. at 39 ¶ 23.
Plaintiffs are not allowed to possess a personal cell phone at CNYPC. Compl. at 42 ¶ 45, 64 ¶ 3. Defendants also restrict plaintiffs' ability to watch the television, access the internet, and call toll-free phone numbers. Id. at 52 ¶ 23; 64 ¶ 1.
Plaintiffs do not have "frequent and convenient opportunities" to visit with friends and family members, as visiting hours are only from 9:00 a.m. until 3:00 p.m. Compl. at 42 ¶ 46; 62 ¶ 8. Additionally, plaintiffs' visitors are forced to pay for "excessively over-priced" food while visiting plaintiffs, while visitors to civilly committed individuals at other SOTP facilities are allowed to bring in their own food. Id. Visitation must be pre-approved, and visitors must submit to a background check. Id. at 62 ¶ 8. CNYPC also routinely denies visitors the opportunity to visit with plaintiffs, and limits plaintiffs' visitor lists. Id. Plaintiffs state that other SOTP facilities have more comfortable visiting room space. Id. ¶ 8.3.
Plaintiffs allege that defendants restrict their time spent working, limiting working hours "according to phase." Compl. at 45 ¶ 53. Plaintiffs allege that other states allow civilly committed individuals to work up to twenty-four hours in a two-week period, and very few civilly committed individuals at CNYPC work the maximum amount of hours. Id. at 45 ¶ 53; 63 ¶ 9.
Plaintiffs further allege that their vocational work assignments are limited to "menial labor." Compl. at 63 ¶ 9.1. They allege that they are not given jobs that would help their employability upon reentry to society. Id. Plumbing, electrical, HVAC, and other vocational jobs were available in Department of Corrections and Community Supervision ("DOCCS") prisons, but are not available at CNYPC. Id. ¶ 9.
Plaintiffs allege that defendants failed to provide them with the Recommended Daily Dietary Allowances set forth by the National Academy of Sciences. Compl. at 63 ¶ 10. Plaintiffs also allege that the food that they are served "is extremely poor quality and includes by-product meat and old fruits and vegetable." Id. Compl. at 64 ¶ 10.
Plaintiffs allege that defendants place unreasonable restrictions on plaintiffs' personal property. Compl. at 59 ¶ 1. They further allege that defendants place unreasonable restrictions on plaintiffs' ability to order certain publications, and possess certain electronics. Id. at 60 ¶¶ 2-3. Defendants also restrict plaintiffs ability to use the internet. Id. ¶ 4.
Plaintiffs allege that multiple aspects of their treatment at CNYPC are inadequate. First, they allege that the clinical administrators and treatment team leaders making treatment decisions are not qualified to make determinations as to plaintiffs' movement through their treatment phases. Compl. at 30 ¶ 12. Second, plaintiffs allege that the use of the polygraph for post-conviction sex offender testing (PCSOT) is unconstitutional. Id. at 31-32 ¶¶ 15-18. Third, plaintiffs allege that frequent clinical staff and leadership changes at CNYPC negatively impact their treatment. Id. at 34 ¶ 7. Fourth, plaintiffs allege that their treatments plans and reviews are becoming increasingly less detailed, making it difficult for plaintiffs to know what goals they must meet in order to successfully complete treatment. Id. ¶ 8. Fifth, plaintiffs are forced to repeat treatment modules when they are transferred to different facilities. Id. ¶ 9. Last, plaintiffs allege that they must draft their own treatment plans, instead of their clinicians. Id. ¶ 10. Generally, plaintiffs allege that the treatment they receive at CNYPC does not provide them with a realistic opportunity to complete treatment and be released. Id. at 43 ¶ 48.
Plaintiffs generally challenge the efficacy of their treatment at CNYPC. They allege that they become "stuck" in certain phases of their treatment, and that the treatment they do receive from the clinical treatment team is inadequate. Compl. at 34-35 ¶¶ 1-4. They further allege that the clinical treatment personnel at CNYPC are unqualified, and that they do not work weekends or holidays. Id. at 35 ¶¶ 5-7, 9. The CNYPC treatment team is also understaffed. Compl. at 36-37 ¶¶ 12-13.
Plaintiffs also allege that they are not provided adequate medical treatment. Compl. at 58-59 ¶¶ 1-5. They allege that the defendants fail to make and keep appointments. Id. at 58 ¶ 1. They also allege that they are not provided timely medical treatment. Id. at 59 ¶ 3.
Plaintiffs allege that they are denied due process of law during their civil commitment proceedings. Compl. at 26 ¶ 4. They argue that New York State's burden of proof used to show that plaintiffs must be civilly committed is the more lenient "clear and convincing evidence" standard as opposed to the more stringent "beyond a reasonable doubt" standard used in other states with civil commitment statutes. Id. ¶¶ 4-5. Plaintiffs also state that they are denied due process because the time limits of their confinement are determined by set "goals" that are not mandatory. Id. ¶ 6.
Plaintiffs allege that defendants have subjected them to "disciplinary and punitive policies, practices, and procedures." Compl. at 46 ¶ 1. They further allege that CNYPC's policy of deterring future behavior through punishment is unfair and violates due process. Id. at 46-47 ¶ 2. Long term seclusion and restraint policies, along with the loss ofprivileges, personal property, packages, telephone, vocational programs, and treatment...
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