The opinion of the court was delivered by: GURFEIN
This is a motion by the defendants for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure.
The plaintiff pro se is a patient of Matteawan State Hospital. He was committed to that institution for the criminally insane on April 28, 1960 pursuant to a finding by a State Court Judge that he was "dangerously mentally ill" within the meaning of § 85 of the Mental Hygiene Law, McKinney's Consol. Laws, c. 27. He brought this action on May 11, 1971, asking the Court to award him $150,000 because (1) he was refused proper therapy and counseling from the doctors at Matteawan and (2) he was not protected from homosexuality in the institution.
After the defendants filed and served an answer, the plaintiff filed a "Writ of Habeas Corpus" dated July 12, 1971 which appears instead to be a reply affidavit. In it the plaintiff complains of his failure to secure a writ of habeas corpus in the State courts. The pleading continues:
"I am not a dangerous person and even they failed to allow me to a civil hospital or to a legal prison to classify my case for legal action in behalf of my dissmissal [sic] and legal release."
The plaintiff submits no supporting papers.
On this motion for summary judgment the defendants attack the complaint on three grounds:
1. The plaintiff fails to comply with Fed. R. Civ. P. Rule 8(a)(1) requirement that every pleading which sets forth a claim for relief must contain "a short and plain statement of the grounds upon which the court's jurisdiction depends."
2. Even if jurisdiction exists under the Civil Rights Act, the plaintiff's conclusory allegations are insufficient to state a cause of action under 42 U.S.C. § 1983.
3. The plaintiff challenges the validity of his confinement with the ultimate object of obtaining his release. Therefore, this action is essentially a habeas corpus petition requiring exhaustion of State remedies which the plaintiff has not done. 28 U.S.C. § 2254(b).
THE HABEAS CORPUS PETITION
The plaintiff's reply to the defendants' motion for summary judgment is nominally a petition for a writ of habeas corpus. On October 7, 1970 the plaintiff obtained a writ of habeas corpus in Supreme Court, Dutchess County. The writ was dismissed after a hearing on January 8, 1971. On October 26, 1971 the Appellate Division, Second Department dismissed an appeal from the Supreme Court's decision. It is not certain that the plaintiff has been served with notice of the dismissal or that he has applied to the New York Court of Appeals for leave to appeal. Even if the plaintiff has exhausted his appellate remedies the petition for a writ of habeas corpus must be denied for failure to allege or suggest that his custody violates the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a).
On a motion for summary judgment the Court must look to the material undisputed facts. The plaintiff states only that he is deprived of proper therapy and counseling and that he is not protected from homosexuality. The defendants in their answer deny these ...