McChesney v. Bastien

Decision Date05 July 2012
Docket NumberCivil Action No. 9:10-CV-1409
PartiesDAVID McCHESNEY, Plaintiff, v. SAMUEL BASTIEN, IV, Defendant.
CourtU.S. District Court — Northern District of New York







Attorney General of



Assistant Attorney General




Plaintiff David McChesney, a convicted sex offender who has beencivilly committed to the Central New York Psychiatric Center ("CNYPC") for participation in sex offender treatment, has commenced this action pursuant to 42 U.S.C. § 1983 claiming violation of his civil rights stemming from his ongoing confinement following expiration of his prison sentence. In his complaint - one of several filed by McChesney in this court - plaintiff alleges a single cause of action for deprivation of liberty without due process of law based upon his alleged involuntary detention at another psychiatric facility operated by the New York State Office of Mental Health ("OMH") for a period of sixty days, from October 5, 2007 until December 4, 2007.1 As relief,plaintiff seeks compensatory damages in the sum of $500 for each day of confinement, with interest.

Defendant has moved for summary judgment seeking dismissal of the complaint as a matter of law on the grounds that 1) the facts demonstrate that plaintiff did not suffer a deprivation of a constitutional right; 2) plaintiff has failed to demonstrate defendant's personal involvement in the alleged constitutional violation; and, 3) in any event, defendant is entitled to qualified immunity from suit. For the reasons set forth below, I recommend that defendant's motion be denied.


The facts relevant to plaintiff's single due process claim are largely undisputed. Instead, both the complaint and defendant's motion present narrow issues of law relating to plaintiff's civil confinement for a discreet period of time following the expiration of his initial commitment order.

Plaintiff was released from a New York State prison facility on April 6, 2007, following completion of a two-year sentence for violating parole. Upon completion of his prison sentence, plaintiff consented to an order, issued on April 5, 2007 by the New York State Supreme Court pursuant to New York Correction Law § 402, authorizing his transfer out of the New York State prison in which he was then incarcerated and his commitment to a facility operated by the OMH.3 ,4 Defendant's Rule 7.1(a)(3) Statement of Undisputed Material Facts ("Local Rule 7.1(a)(3) Statement") (Dkt. No. 12-9) ¶ 3. At the time, plaintiff was transferred into the Saint Lawrence Psychiatric Center ("SLPC"). Id. The April 5, 2007 commitment order authorized plaintiff's retention until October 5, 2007.

In the wake of a decision of the New York Court of Appeals disapproving of the use of the procedures set forth in Mental Hygiene Law ("MHL") Article 9 for civil confinement of convicted sex offenders, see Harkavy I, 7 N.Y.3d at 614, 825 N.Y.S.2d 702, finding, inter alia, "[t]hat recidivistic sex offenders pose a danger to society that should be addressed through comprehensive programs of treatment and management[,]" the New York State Legislature enacted MHL Article 10, known as the Sex Offender Management and Treatment Act ("SOMTA"). The SOMTA created a new statutory scheme of procedures to be used with respect to convicted sex offenders requiring civil commitment or supervision following completion of their prison terms and became effective on April 13, 2007, just days after the Supreme Court's issuance of its order authorizing plaintiff's involuntary commitment pursuant to Correction Law § 402.5 That new statutory regimen provides elaborate measures both for "case review" of the "detained sex offender", also known as the "respondent", before his or her release from civil confinement to determine whether further confinement under the SOMTA is necessary, as well as for detention beyond a specified release date, ifnecessary, before such case review is complete.6

In the case at bar, although the case review process apparently had begun before the expiration of the April 5, 2007 commitment order on October 5, 2007, it had not been completed, and plaintiff had not been notified that a review of his status had been referred to a case review team. Defendant's Local Rule 7.1(a)(3) Statement (Dkt. No. 12-9) ¶ 6. Likewise, the State did not make any effort to file a securing petition before October 5, 2007, and no hearing was held to determine whether there was probablecause to continue plaintiff's civil confinement at the SLPC pending completion of the case review.

Five days after the expiration of the original order of commitment, on October 10, 2007, an attorney with Mental Hygiene Legal Services sent defendant a letter on plaintiff's behalf advising that McChesney was aware that, in accordance with the April 5, 2007 order, his involuntary commitment status had expired, but that he desired to remain at the SLPC as a voluntary patient, "consistent with his original decision to consent to the 402 retention order. . .." Bastien Decl. (Dkt. no. 12-2) Exh. B. The letter included a Voluntary Request for Hospitalization, signed by McChesney on October 10, 2007, and further stated, "[p]lease note that Mr. McChesney is making this request for voluntary admission [pursuant to MHL § 9.21] based on his realization that he is in need of further treatment for his maladaptive behaviors, and his desire to avoid litigation concerning his legal status while being held at SLPC."7 Id. Upon receipt of this correspondence, defendantconsulted with OMH counsel and was advised that plaintiff's current retention was lawful, and that conversion of plaintiff's status to voluntary was unnecessary. Bastien Decl. (Dkt. No. 12-2) ¶ 10.

On November 20, 2007, plaintiff filed a petition with New York State Supreme Court, St. Lawrence County, pursuant to Article 78 of the New York Civil Practice Law and Rules, seeking an order requiring the defendant, as director of the SLPC, to "discontinue [his] illegal retention of petitioner and permit petitioner to voluntarily apply for and be admitted under a voluntary status to the [SLPC] pursuant to the provisions of MHL article 9 for voluntary admission. . .." Complaint (Dkt. No. 1) Exh. C; Bastien Decl. (Dkt. No. 12-2) Exh. C. The Supreme Court granted McChesney's petition on Friday, November 30, 2007, and ordered the OMH to immediately release plaintiff from the SLPC to the Division of Parole, or if plaintiff so chose, to be voluntarily committed at the SLPC.8 Complaint (Dkt. No. 1) Exh. C; Bastien Decl. (Dkt. No. 12-2) Exh. C. When defendant failed to comply with that directive, on December 4, 2007, McChesney obtained a second order fromthat court, requiring the OMH to comply with the prior order and immediately release him.9 David NN., 53 A.D.3d at 841, 862 N.Y.S.2d 150. At that time, the Supreme Court refused the Attorney General's request to review and sign an order to show cause allowing the OMH to hold McChesney pending an MHL Article 10 review. See id. In accordance with the second order issued by the Supreme Court, plaintiff was released into the custody of the Division of Parole on December 4, 2007. Defendant's Local Rule 7.1(a)(3) Statement (Dkt. No. 12-9) ¶ 21.

On December 5, 2007, the OHM obtained an ex parte order to showcause from a different New York State Supreme Court justice, located in Chemung County, authorizing plaintiff's confinement at a different OMH facility pending an MHL Article 10 probable cause hearing. David NN., 53 A.D.3d at 842, 862 N.Y.S.2d 150; see also Defendant's Local Rule 7.1(a)(3) Statement (Dkt. No. 12-9) ¶ 22. As a result, McChesney was involuntarily admitted to an OMH facility pursuant to that order. David NN., 53 A.D.3d at 842, 862 N.Y.S.2d 150


On November 22, 2010, plaintiff commenced this action asserting a single claim for violation of his right to due process in association with his detention at the SLPC from October 5, 2007 to December 4, 2007. Issue was joined by defendant's service of an answer on May 16, 2011. See Dkt. No. 9.

Following the completion of pretrial discovery, defendant filed the pending motion for summary judgment on December 9, 2011, arguing that he is entitled to dismissal of plaintiff's complaint as a matter of law on the grounds that 1) plaintiff cannot show that his constitutional rights were violated; 2) defendant was not personally involved in any alleged constitutional violation; and, 3) even if a violation occurred, defendant isentitled to protection from liability under the doctrine of qualified immunity. Despite the fact that the deadline for opposing defendant's motion has long since passed, plaintiff has failed to respond to that motion. Defendant's motion, which is now ripe for determination, has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).

A. Summary Judgement Standard

Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, summary judgment is warranted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986); Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material", for purposes of this inquiry, if it "might affect the outcome of the suit under thegoverning law." Anderson, 477 U.S. at 248, 106 S. Ct. at 2510; ...

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