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ROTHENBERG v. STONE

December 27, 2002

RONALD ROTHENBERG, PLAINTIFF,
V.
JAMES STONE, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE NEW YORK STATE OF MENTAL HEALTH, AND THOMAS SPOTA, IN HIS OFFICIAL CAPACITY OF DISTRICT ATTORNEY OF SUFFOLK COUNTY, DEFENDANTS



The opinion of the court was delivered by: Arthur D. Spatt, District Judge.

MEMORANDUM OF DECISION AND ORDER

I. BACKGROUND

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 environment.

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 plaintiff.

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 residents.

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 another patient.

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 ...


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