The opinion of the court was delivered by: Arthur D. Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
The following facts are taken from an amended complaint filed by the
plaintiff on May 6, 2002, which the Court takes to be true. In
approximately 1992, the plaintiff was diagnosed as suffering from
depression and began taking anti-depressant medication. On October 29,
1994, at his wife's suggestion, Rothenberg stopped taking his
medication. On November 13, 1994, while driving with his wife, the
plaintiff suffered a depressive episode and was involved in an automobile
accident. As a result of the injuries sustained in the accident,
Rothenberg's wife died.
Rothenberg was charged with manslaughter in the second degree. He
pleaded "not guilty by reason of insanity," and the criminal court
accepted his plea. Subsequently, he was placed in Pilgrim Psychiatric
Center ("Pilgrim"), a non-secure facility, which treats, among others,
individuals who have pleaded not responsible by reason of mental disease
or defect. Rothenberg currently resides at Pilgrim.
In mid-December 2000, a patient who shared an adjoining bathroom with
the plaintiff began making homosexual advances toward him. In mid-March
2001, the patient raped the plaintiff. According to the plaintiff, other
patients began threatening him with assault, sexual abuse, sodomy, and
rape. On March 23, 2001, the plaintiff informed Susan Laskawaski
("Laskawaski"), who supervised his psychiatric treatment, that he had
been threatened with sexual assault by other patients, but did not report
that he had been raped. Laskawaski advised him to ignore the threats and
that such threats could not be controlled in that particular
At the end of March 2001, the patient again raped the plaintiff.
Again, in April 2001 and also in May 2001, the patient raped the
On approximately April 6, 2001, in seeking to get a room transfer, the
plaintiff reported to his parents, his doctor, and Laskawski that the
patient had been making sexual advances toward him. Frightened of
retaliation by the patient, he did not inform them that the patient had
raped him. Thereafter, the plaintiff's doctor and Pilgrim officials
transferred him to two other rooms and then finally placed him in a room
with another patient.
On or about May 19, 2001, the plaintiff's parents, who reside in
Pennsylvania, visited him. During the visit, the plaintiff's parents
noticed fecal matter in the plaintiff's undergarments. His parents
informed staff members at Pilgrim that they suspected their son was being
sexually abused, assaulted, sodomized, or raped by one or more
The plaintiff's new roommate began making sexual advances toward him.
On approximately June 3, 2001, the plaintiff consented to have sex with
his roommate out of fear that if he did not consent, he would be sexually
assaulted again. Immediately thereafter, the plaintiff was raped by
Finally, in June 2001, the plaintiff reported to his parents that he
was being sexually abused. The plaintiff asked to be placed in a program
at Pilgrim that provides counseling and therapy sessions for
victims of rape, but Pilgrim denied his request.
The plaintiff also requested to be transferred to a
psychiatric facility in Pennsylvania to be closer to his
parents. However, Pilgrim maintains a policy of
transferring civil patients out of state but not
insanity acquittees. In addition, according to the
plaintiff, Pennsylvania maintains a similar policy of
accepting civil patients from other states as
transferees but not insanity acquittees. The plaintiff
claims that in all respects he is an appropriate
candidate for transfer to a facility to another state,
but because of his status as an insanity acquittee, he
is not permitted to be transferred.
On May 6, 2002, the plaintiff filed an amended complaint which seeks an
injunction directing Stone to transfer the plaintiff to any Pennsylvania
institution in order to be closer to his parents and to avoid further
physical and sexual assaults. The plaintiff asserts that by not
transferring him to a facility in Pennsylvania because of his status as
an insanity acquittee, Pilgrim is denying him equal protection under the
law, in violation of the Fourteenth Amendment of the United States
Constitution and 42 U.S.C. § 1983.
In addition, pursuant to 28 U.S.C. § 2201 and Fed.R.Civ.P. 57, the
plaintiff seeks declaratory relief against Stone for subjecting him "to
treatment decisions that have constituted a substantial departure from
accepted judgment, practices or standards" by denying the plaintiff the
opportunity to participate in a program of counseling and therapy for rape
victims in violation of the Fourteenth Amendment and 42 U.S.C. § 1983.
The plaintiff further requests declaratory relief ...