Oliver v. Dow
| Decision Date | 17 February 2011 |
| Docket Number | Civil Action No.: 10-1542 (DMC-JAD) |
| Parties | LORENZO OLIVER, Plaintiff, v. PAULA T. DOW, individually and in her official capacity as Attorney General for the State of New Jersey, MERRILL MAIN, Ph.D., individually and in his official capacity as Clinical Director of the Special Treatment Unit, JENNIFER VELEZ, individually and in her official capacity as Commissioner of the Department of Human Services, JONATHAN POAG, individually and in his official capacity as Director of the Division of Mental Health Services, GARY M. LANIGAN, individually and in his official capacity as the Commissioner of the Department of Corrections, CHARLIE JONES, individually and in his official capacity as a member of the New Jersey Board of Parole, LOUIS ROMANO, individually and in his official capacity as a member of the New Jersey Board of Parole, and John/Jane Does 1-10, individually and in their official capacities, Defendants. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
Hon. Dennis M. Cavanaugh
OPINION and REPORT AND RECOMMENDATION
This matter comes before the Court upon motion by Lorenzo Oliver ("Plaintiff) to amend Plaintiffs Amended Complaint to (1) add a proposed cause of action against defendants Paula T. Dow ("Dow"), Merrill Main ("Main"), Jennifer Velez ("Velez"), Jonathan Poag ("Poag"), and Gary M. Lanigan ("Lanigan") (collectively, "Defendants") for violation of procedural and substantive due process guarantees under the Fourteenth Amendment ("the Proposed First Cause of Action"); (2) add Joseph Elchin and Matthew Harris as plaintiffs; (3) withdraw Plaintiff's First Cause of Action (violation of double jeopardy clause), Second Cause of Action (violation of ex post facto clause), Fifth Cause of Action (violation of due process guarantees under the Fourteenth Amendment), and Sixth Cause of Action (violation of cruel and unusual punishment clause); and (4) certify this matter as a class action for the Proposed First Cause of Action and appoint class counsel pursuant to FED. R. CIV. P. 23. Defendants oppose Plaintiff's motion to add the Proposed First Cause of Action and to certify this action.
For the reasons stated below, Plaintiff's motion to add two plaintiff's and to withdraw the four causes of action is granted and Plaintiff's motion to add the Proposed First Cause of Action is denied. The Court additionally respectfully recommends that the District Court deny Plaintiff's motion to certify this matter as a class action for the Proposed First Cause of Action and to appoint class counsel.
Plaintiff is a civilly committed individual currently confined at the Special Treatment Unit ("STU") in Avenel, New Jersey pursuant to the New Jersey Sexually Violent Predator Act (the "SVPA") (N.J.S.A. 30:4-27:24, et seq.). On March 22, 2010, Plaintiff filed a complaint for damages and declaratory and injunctive relief under 42 U.S.C. § 1983 against defendants Dow, Main, Velez, Poag, Lanigan, Charlie Jones, and Louis Romano alleging that they violated Plaintiff's constitutional and statutory rights in connection with the State of New Jersey's implementation of the SVPA, the administration of the STU, and operation of the New Jersey Department of Corrections ("DOC"). (Compl. ¶ 3, ECF No. 1). Specifically, Plaintiff assertedclaims for violation of the Double Jeopardy and Ex Post Facto Clauses of the U.S. Constitution; violation of procedural and substantive due process guarantees of the Fourteenth Amendment; violation of the cruel and unusual punishment clause of the Eighth Amendment; violation of the Equal Protection Clause of the Fourteenth Amendment; violation of the Americans With Disabilities Act, 42 U.S.C. § 12132; violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; violation of Civil Rights of Civilly Committed Persons under N.J.S.A. § 30:424.1; violation of the New Jersey Patients Bill of Rights under N.J.S.A. 30:4-24.2; and violation of the right to adequate treatment under the New Jersey State Constitution. Id. at ¶¶ 58-89.
On April 15, 2010, Plaintiff filed an Amended Complaint to correct typographical errors in the original Complaint. (Amend. Compl., ECF No. 5). Plaintiff now seeks leave to file a Second Amended Complaint to add two plaintiff's who, like Plaintiff, are currently civilly committed and confined at the STU, and to add an additional claim against Defendants for violation of procedural and substantive due process guarantees under the Fourteenth Amendment. (Sec. Amend. Compl., 23-24, Count 1, ECF No. 16-4).
Under the Proposed First Cause of Action, Plaintiff alleges that the methods, means, standards, procedures, and practices used to determine dangerousness of an individual under the SVPA have insufficient validity and are unreliable. Id. at ¶¶ 65-66. Accordingly, Plaintiff seeks to enjoin Defendants "from continuing to restrain or confine" Plaintiff, the two proposed plaintiffs, and others, who were determined to be dangerous under the SVPA by the methods, means, standards, procedures, and practices used by Defendants. Id. at ¶86(b). Plaintiff also seeks to certify this matter as a class action for the limited purpose of the Proposed First Cause of Action only, and requests appointment of class counsel. (PI. Brief 12, ECF No. 16-9).
Finally, as stated, Plaintiff's proposed Second Amended Complaint withdraws Plaintiff's First, Second, Fifth and Sixth Causes of Action in the Amended Complaint.
Defendants oppose Plaintiff's motion to add the Proposed First Cause of Action on the basis of futility, arguing that (1) the Proposed First Cause of Action is without merit because the methods used to determine dangerousness under the SVPA are, in fact, constitutional (Def. Br. 10-15, ECF No. 17), and (2) Plaintiff's Proposed First Cause of Action attacks the validity of his civil confinement and seeks relief in the form of his release from his civil commitment and must, therefore, be brought as a habeas corpus petition and not as a civil rights action under 42 U.S.C. § 1983. (Def. Lr. Br. 1, ECF No. 22). Defendants further argue that class certification should be denied because (1) there is no merit to Plaintiff's Proposed First Cause of Action for which Plaintiff is seeking class certification, and (2) Plaintiff fails to satisfy the requirements set forth in FED. R. CIV. P. 23(a) necessary for class certification. (Def. Br. 15, ECF No. 17).
Plaintiff has a long history in the New Jersey Sate criminal judicial system. (Def. Br. 610, ECF No. 17; Certification of David L. DaCosta ("DaCosta Cert."), Ex. B, ECF No. 17-1). In 1973, Plaintiff was convicted of assault with intent to commit carnal abuse and was sentenced to a maximum of seven years. Id. Thereafter, Plaintiff had a series of charges (some dismissed) on a variety of sexual offenses and kidnapping. Id.
In 1988, Plaintiff was charged with numerous sexual offenses, including sexual assault, attempted sexual assault, and criminal restraint in connection with two separate incidents with two separate women in June 1988. Id. Plaintiff was convicted of the offenses in 1989; however, the convictions were reversed in 1992. (Amend. Compl., ¶¶ 29-30, ECF No. 5). In or about 1995, Plaintiff was retried on the same charges and was convicted in February 1995. Id. at ¶ 31. Plaintiff received a total sentence of forty years for the 1988 offenses. (Def. Br. 8, ECF No. 17). On or about January 24, 2008, Plaintiff was granted parole and was scheduled to be released on March 18, 2008. (Amend. Compl., ¶ 35, ECF No. 5). In or around that time, the State of New Jersey filed a petition to civilly commit Plaintiff pursuant to the SVPA. (Def. Br. 10, ECF No. 17). In March 2008, Plaintiff's parole was rescinded. (Amend. Compl, ¶ 36, ECF No. 5). In November 2008, the State of New Jersey initiated civil commitment proceedings against Plaintiff. Id. at 37. In support of the State of New Jersey's Petition for Plaintiff's Civil Commitment, the State submitted Clinical Certificates from two psychiatrists, dated January 27, 2009 and January 28, 2009. .
In their Clinical Certificates, both psychiatrists listed the documents they reviewed to obtain Plaintiff's history, including Plaintiff's Department of Corrections Classification file and part of Plaintiff s Electronic Medical Records. Id. Both psychiatrists further detailed Plaintiff's criminal history, including sexually violent and non-sexual offenses, Plaintiff's psychiatric and substance abuse history and treatment, and Plaintiff's diagnosed mental abnormality (as that term is defined in the SVPA) and personality disorders. Id. Both psychiatrists note that they attempted to interview Plaintiff to perform a mental status examination of Plaintiff; however, the results were limited because Plaintiff refused to participate in an interview. Id.
Finally, both psychiatrists identified eight separate clinical characteristics and/or risk factors of Plaintiff for reoffending. Id. Included as one of the eight risk factors the psychiatrists considered were Plaintiff's scores from the Static 991 and MnSOST-R (Minnesota Sex Offender Screening Tool-Revised) actuarial risk assessment tools. Id. At the conclusion of each of their Clinical Certificates, both psychiatrists state: "It is my opinion that [Plaintiff] has seriousdifficulty controlling his sexually offending behavior such that he is highly likely to sexually reoffend in the foreseeable future if not confined to a secure facility for treatment." Id.
In February 2009, Plaintiff was taken into custody pursuant to the SVPA. (Amend. Compl, ¶ 38, ECF No. 5). On July 20, 2010, an initial civil commitment hearing for Plaintiff was conducted pursuant to N.J.S.A. 30:4-27.24, et seq., in the Superior Court of New Jersey, Law Division, Essex County, during which Plaintiff was represented by an...
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