On September 3, 1987, the hospital continued to hospitalize
plaintiff pursuant to Mental Hygiene Law § 9.27. That section
allows for involuntary confinement for a period up to sixty
days on the certificates of two examining physicians that the
person "is mentally ill and in need of involuntary care and
treatment in a hospital."
The complaint alleges, and defendants' affidavits do not
dispute, that when plaintiff became aware that she would not be
released she sought a hearing to challenge her hospitalization.
By the terms of § 9.39, such a hearing must be held within five
days of the request. According to the complaint, the hearing
was repeatedly adjourned until her release.
On October 2, 1987, plaintiff signed "voluntary" admission
papers. In her affidavit she says she did so because Dr.
Alapati told her that if she wished to go home for a visit she
would have to sign. But she was not released until October 9,
Defendants say that (a) the action is barred by the statute
of limitations, and (b) plaintiff has not made out a claim for
a violation of either substantive or procedural due process.
The statute of limitations in an action under 42 U.S.C. § 1983
is determined by borrowing the state law governing an
analogous cause of action. Board of Regents v. Tomanio,
446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980). In the State
of New York that statute of limitations is three years. Owens
v. Okure, 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989).
Defendants argue that plaintiff's involuntary confinement
ended on October 2, 1987, and that any claim for involuntary
confinement accrued no later than that date. Plaintiff's
complaint was filed on October 4, 1990, more than three years
In the light of plaintiff's affidavit it appears that there
is a question of fact as to whether her confinement between
October 2 and October 9, 1987, was truly voluntary. But in any
event plaintiff says that the statute was tolled under CPLR
§ 208 because she was under the disability of "insanity" when
the claim accrued. Mere mental illness is insufficient. The
section extends "the toll for insanity to only those
individuals who are unable to protect their legal rights
because of an over-all inability to function in society."
McCarthy v. Volkswagen of America, Inc., 55 N.Y.2d 543, 450
N YS.2d 457, 435 N.E.2d 1072 (1980). There is a genuine issue
of material fact as to whether she met that standard.
Plaintiff's due process claim has two parts, substantive and
It is a violation of substantive due process to lock a person
up against her will and keep her indefinitely based on the mere
finding of "mental illness." O'Connor v. Donaldson,
422 U.S. 563, 575-76, 95 S.Ct. 2486, 2493-94, 45 L.Ed.2d 396 (1975).
Only if the person poses a danger to herself or others so that
she cannot live safely in freedom may the state confine her
against her will. Id.
In Project Release v. Prevost, 722 F.2d 960, 971-74 (2d Cir.
1983), the Court of Appeals for the Second Circuit upheld
against a substantive due process claim both § 9.39 and § 9.27.
Section 9.39 requires a finding of likelihood of danger.
Section 9.27 does not do so explicitly. But, as the Court of
Appeals held, the New York state courts have read the section
narrowly to require dangerousness, thus meeting the substantive
due process criteria. Plaintiff has thus not shown a violation
of substantive due process. Her claim that the doctors did not
make the requisite findings is inconsistent with their reports.
There is no suggestion that the doctors maliciously or in bad
faith declined to follow the statutory procedure. This court
thus has no basis to reexamine their findings.
Plaintiff also alleges violation of her procedural due
process rights. New York's involuntary commitment statute
have been held to meet the standards of procedural due process.
Id. But, according to plaintiff, defendants did not adhere to
the procedural requirements of the statute.
Section 9.39(a) provides that at any time after admission,
the patient, any relative, friend or the mental hygiene legal
service may request a judicial hearing on the question of need
for immediate observation, care, and treatment. The hearing
must be held within five days after the request is received,
"except that the commencement of such hearing may be adjourned
at the request of the patient."
Plaintiff says that although she requested a hearing, it was
repeatedly adjourned until she was released. The papers do not
explain whether the adjournments were at the request of the
plaintiff or the defendants. If the adjournments were requested
by the defendants or were not validly requested by plaintiff,
the defendants have not met the procedural requirements on
which the Court of Appeals based its determination that § 9.39
complied with due process.
There is an issue of fact requiring a trial as to whether
plaintiff was denied her procedural rights.
The court denies defendants' motion.
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