Project Release v. Prevost, 78 C 1467.

• Citation: 463 F. Supp. 1033
• Decision Date: 29 December 1978
• Docket Number: No. 78 C 1467.,78 C 1467.
• Parties: PROJECT RELEASE, Individually and on behalf of its members and all others similarly situated, Carrie Greene, Individually and on behalf of all others similarly situated, Plaintiffs, v. James PREVOST, Individually and as Commissioner of the New York State Department of Mental Hygiene and Office of Mental Health, Defendant.
• Court: U.S. District Court — Eastern District of New York

463 F. Supp. 1033

PROJECT RELEASE, Individually and on behalf of its members and all others similarly situated, Carrie Greene, Individually and on behalf of all others similarly situated, Plaintiffs, v. James PREVOST, Individually and as Commissioner of the New York State Department of Mental Hygiene and Office of Mental Health, Defendant.

No. 78 C 1467.

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

December 29, 1978.

New York Civil Liberties Union, New York City, for plaintiffs, by Christopher A. Hansen, Robert Morris Levy, New York City.

Louis J. Lefkowitz, Atty. Gen. of the State of N. Y., New York City, for defendant, by Robert S. Hammer, Robert J. Schack, New York City (William A. Carnahan, and John Aveni, Department of Mental Hygiene, Albany, of counsel).

MEMORANDUM AND ORDER

NEAHER, District Judge.

This civil rights action, brought pursuant to 42 U.S.C. § 1983 and its jurisdictional counterpart 28 U.S.C. § 1343(3), challenges the constitutionality of the standards for civil commitment of mentally ill persons embodied in various provisions of the New York Mental Hygiene Law ("MHL") and the procedures used in such commitments. Specifically, the action is brought to declare MHL §§ 9.13, 9.27 and 9.39 unconstitutional and to enjoin their enforcement to the extent they are declared constitutionally inadequate.¹

Plaintiffs are a non-profit corporation ("Project Release") suing individually and on behalf of its members, and an individual ("Carrie Greene") currently committed to Creedmoor Psychiatric Center. They seek to maintain the action as representatives of a class variously described as "all persons who have been or may in the future be involuntarily committed to mental hospitals" (Complaint ¶ 5) and as "all individuals who are or have been confined in all facilities operated by the New York State Department of Mental Hygiene" (Plaintiffs' Memorandum in Support of Motion for Class Certification at 4). The defendant is the Commissioner of the New York State Department of Mental Hygiene. Motions for class certification have been held in abeyance pending disposition of the motion to dismiss now before the court.

Plaintiffs allege that the substantive standards for involuntary commitment contained in the MHL are constitutionally vague and overbroad. Section 9.13 provides for voluntary admission of "any suitable person in need of care and treatment" who makes a written application therefor. Such a "voluntary" patient shall be released upon written application on three days notice unless the director within that time seeks a court order to retain the patient on the ground that he is "in need of involuntary care and treatment."² Section 9.27 permits involuntary admission of anyone "alleged to be mentally ill and in need of involuntary care and treatment" upon certification by two examining physicians, the application of one of the patient's friends, or relatives, or of an official of a public or voluntary agency, and an examination by a member of the psychiatric staff of the hospital.³ Section 9.39 provides for "emergency" 15-day admission to a proper facility of "any person alleged to have a mental illness for which immediate observation, care, and treatment" is appropriate and "which is likely to result in serious harm to himself or others." The phrase "likelihood to result in serious harm" is defined in the article as:

"(1) substantial risk of physical harm to himself as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that he is dangerous to himself, or

"(2) a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm."⁴

These provisions of the MHL are allegedly infirm in that they permit commitment of persons who do not meet the following standard:

"(a) The person has a serious mental disorder, and

"(b) The person's disorder is susceptible to treatment by existing medical or psychological techniques, and

"(c) Adequate personnel and other resources exist at the proposed facility to provide such treatment as will afford the person with a realistic opportunity to be cured or to improve, and

"(d) The person presents a substantial and present risk of serious physical harm to himself or others, and

"(e) The person has recently committed an act which caused or reasonably should have caused serious physical harm to himself or others, and "(f) The person cannot receive the necessary help in any less restrictive setting." (Complaint ¶ 17.)

The complaint further alleges that the provisions are procedurally defective and deny due process in that they fail to provide such persons the following protections:

"(a) They were and are not provided a probable cause judicial hearing within 48 hours of confinement;

"(b) They were and are not provided an automatic judicial review of their need for confinement within 5 days of confinement;

"(c) They are not provided with adequate counsel (specifically, the Mental Health Information Service does not provide adequate counsel in part because in most of the state it is required to provide services as counsel to patients and as an independent investigator for the court by § 29.09(b));

"(d) They are confined without the state's having to prove their need for confinement beyond a reasonable doubt;

"(e) They are confined without adequate notice of the specific facts which have led to their confinement. Specifically, they are not permitted access to even their own hospital records;

"(f) They are confined based upon their own statements without having been warned of their right to remain silent;

"(g) They are often given drugs and other treatment against their will upon admission that make it very difficult or impossible for them to assert their rights or for them to appear at a hearing in an unprejudicial manner." (Complaint ¶ 18.)

Finally, plaintiffs seek a declaration of unconstitutionality of MHL § 29.09(b) to the extent that it requires the Mental Health Information Service to act as both counsel for the patient and as an independent investigator for the courts (Complaint ¶ 18(c)).

Defendant moves to dismiss pursuant to Rule 12(b), F.R.Civ.P., on grounds that (1) the named defendant lacks personal responsibility for commitment of persons to New York mental hospitals; (2) plaintiffs have failed to join the Mental Health Information Service as a party defendant; (3) plaintiffs have failed to exhaust State judicial remedies; and (4) they lack standing to challenge MHL §§ 9.13 and 9.39. For the following reasons, defendant's motion is denied in all respects.

The Commissioner is a Proper Party

Defendant argues that § 1983 creates a cause of action against the person responsible for the deprivation of another's constitutional rights and that, before liability can be imposed, there must be some showing of personal responsibility for the complained of acts. For this proposition, he cites authority in this circuit. See Duchesne v. Sugarman, 566 F.2d 817, 830 (2 Cir. 1977); Arroyo v. Schaefer, 548 F.2d 47, 51 (2 Cir. 1977); William v. Vincent, 508 F.2d 541, 546 (2 Cir. 1974); Johnson v. Glick, 481 F.2d 1028, 1034 (2 Cir. 1973). Since the complaint neither alleges that defendant personally directed his subordinates to deprive plaintiffs of their constitutional rights nor specifies that he had knowledge of such deprivations and acquiesced in them, defendant contends plaintiffs have not stated a claim upon which relief can be granted. Defendant, in addition, appears to claim that this action is barred by the doctrine of qualified immunity for executive branch State officials. These arguments lack merit.

First, the cases cited by defendant are inapposite. While it is true that "in this Circuit personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983," McKinnon v. Patterson, 568 F.2d 930, 934 (2 Cir. 1977), the rule is limited to cases in which damages are sought and is plainly inapplicable where, as here, plaintiffs seek declaratory and injunctive relief against the operation of allegedly unconstitutional State statutes. In such actions, it has long been the law that officials are amenable to suit in their official capacities. See, e. g., Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Edelman v. Jordan, 415 U.S. 651, 663-68, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). See also Arthur v. Nyquist, 573 F.2d 134, 139-40 (2 Cir. 1978); Aristocrat Health Club of Hartford v. Chaucer, 451 F.Supp. 210, 213 (D.Conn.1978). Although defendant may not have been directly involved in acts pursuant to the allegedly unconstitutional scheme, he may be held responsible in these circumstances for the acts of his subordinates for purposes of injunctive and declaratory relief. See Hupart v. Board of Higher Education of City of New York, 420 F.Supp. 1087, 1108 (S.D.N.Y.1976).⁵ Thus, whether or not Commissioner Prevost has jurisdiction over the actual admission and discharge of patients—which has been placed in issue by defendant⁶—it is certain that he is responsible for the Office of Mental Health and in such capacity has general supervisory authority over the State's mental health commitment program. See, e. g., MHL §§ 7.07(c), 7.09(a), 7.11 and 7.15(a). He is therefore a proper defendant and amenable to suit.

Since there is some question, at least in defendant's view, that the Commissioner does not exercise complete authority over the admission and discharge process, it is perhaps best at this early stage of the litigation to grant plaintiffs' alternative request to add as a party-defendant a hospital director so as to assure plaintiffs complete relief should they prevail on the merits in this action. This should not unduly complicate the action⁷ and might later prove necessary to provide complete relief to plaintiffs. Plaintiffs, therefore, are...