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DONHAUSER v. GOORD

April 15, 2004.

DAVID DONHAUSER, Plaintiff, -v- GLENN S. GOORD, Commissioner of the New York State Department of Correctional Services; MARTHA E. YOURTH, CSW Guidance Specialist; DOMINIC MARTINELLI, Sex Offender Program Counselor; and S. CARTER, S.C.C., Oneida Correctional Facility, Defendants


The opinion of the court was delivered by: DAVID HURD, District Judge

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

By Memorandum-Decision and Order dated April 15, 2004 ("April 15th MDO"), defendants' motion to dismiss the second amended complaint pursuant to Fed.R.Civ.P. 12 was denied as to plaintiffs claim that the Sexual Offender Counseling Program ("SOCP") administered at the Oneida Correctional Facility, and its requirement that participants divulge histories of sexual conduct, including acts for which no criminal charges have been brought, violated his Fifth Amendment privilege against self-incrimination, and granted in every other respect. (Docket No. 79.)

  On June 19, 2003, plaintiff filed a motion for preliminary and/or injunctive relief pursuant to Fed.R.Civ.P. 65. (Docket Nos. 54, 63.) Defendants opposed. (Docket Nos. 59, 60.) In light of the April 15th MDO, plaintiff's motion for a preliminary injunction must be granted in part.

 II. PRELIMINARY INJUNCTION STANDARD

  To prevail on a motion for preliminary injunctive relief, plaintiff must demonstrate irreparable harm and either a substantial likelihood of success on the merits, or sufficiently serious questions going to the merits and a balance of hardships tipping decidedly in his favor. Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir. 1992).

 III. DISCUSSION

  The facts of this case were adequately laid out in the April 15th MDO, and need not be repeated here. Prior to its issuance, and the Report-Recommendation that preceded it, plaintiffs first motion for preliminary injunctive relief was denied pursuant to McKune v. Lile, 536 U.S. 24, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002), and on the grounds that plaintiff had failed to submit any evidence to support his allegations.

  Defendants argue that the former comprises the "law of the case" and mandates dismissal of plaintiff's pending motion for preliminary injunctive relief. The Second Circuit has "observed that the law of the case doctrine `is, at best, a discretionary doctrine which does not constitute a limitation on the court's power but merely expresses the general practice of refusing to reopen what has been decided.'" Brody v. Vill. of Port Chester, 345 F.3d 103, 110 (2d Cir. 2003) (quoting United States v. Martinez, 987 F.2d 920, 923 (2d Cir. 1993)). In this case, to the extent the earlier denial of plaintiff's first motion for preliminary injunctive relief can be read to hold that McKune precluded his surviving Fifth Amendment claim, it is here clarified to not do so, as set forth extensively in the April 15th MDO, which is endorsed and reiterated herein.

  With regards to the second ground upon which plaintiff's earlier motion for preliminary injunctive relief was denied — that he had submitted no evidence aside from his own affidavit — it is noted that plaintiff attached to his pending motion several exhibits that support his allegations that he was threatened with a loss of, and did in fact lose, good time credits as a direct and automatic result of his refusal to give up his right to silence and participate in the SOCP. (Docket No. 54, Exs. A-F.) As noted in the April 15th MDO, such evidence, if found persuasive, would give rise to a viable claim under the Fifth Amendment.

  Defendants' only other substantive argument against the pending motion for preliminary injunctive relief is that, because plaintiff has now actually lost good time credits, instead of merely anticipating the same, his claim cannot be sustained under 42 U.S.C. § 1983 pursuant to Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and Edwards v. Balisok, 520 U.S. 641. 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). This argument confuses and improperly groups together plaintiff's due process and Fifth Amendment claims. Heck and Edwards were in fact cited in a Memorandum-Decision and Order in this case, dated October 14, 2003, denying plaintiffs motion to amend the second amended complaint. (Docket No. 70.) In that decision, however, it was noted that "[s]ince [plaintiff] has not alleged that the administrative decision revoking his good time credits has been reversed, any due process claims regarding his loss of good time credits would necessarily be barred by Heck and Edwards." Id. at 3-4 (emphasis added). Thus, the proposed third amended complaint was read to modify plaintiff's due process claim, but not his Fifth Amendment claim, which was directed at the SOCP and its requirements, and which is the only claim that survived the April 15th MDO.

  The relief, if appropriate, to restore lost good time credits must await final resolution of the Fifth Amendment claim. Plaintiff is not entitled to a preliminary injunction restoring his lost good time credits.

  Therefore, in light of the April 15th MDO, plaintiff is entitled to some preliminary injunctive relief, in the form of an order enjoining defendants from requiring, as part of the SOCP, participants to divulge a history of sexual conduct, including illegal acts for which no criminal charges have been filed.

  Accordingly, it is

  ORDERED that
1. Plaintiff's motion for a preliminary injunction is GRANTED in part;
  2. The defendants and persons acting under their discretion and/or control are enjoined from requiring a prisoner to divulge his or her history of sexual conduct, including illegal acts for which no criminal charges have been filed, in order to be eligible to participate in the Sexual Offender Counseling Program;

  3. The motion is DENIED in all other respects.

  IT IS SO ORDERED. I. INTRODUCTION

  On April 23, 2002, pro se plaintiff David Donhauser ("plaintiff') filed a second amended complaint against defendants (Glenn S. Goord, Commissioner of the New York State Department of Corrections; Martha E. Yourth, CSW Guidance Specialist; Dominic Martinelli, Sex Offender Program Counselor; and S. Carter, S.C.C., Oneida Correctional Facility) pursuant to 42 U.S.C. § 1983, alleging various violations of his federal/constitutional rights. On July 17, 2002, defendants filed a motion to dismiss the second amended complaint pursuant to Fed.R.Civ.P. 12. (Docket No. 25.) By Report-Recommendation dated January 22, 2003, the Honorable Gary L. Sharpe, United States Magistrate Judge, now District Court Judge, recommended that the defendants' motion to dismiss be granted. (Docket No. 48.) Plaintiff has filed objections to the Report-Recommendation. (Docket No. 50.)*fn1

 II. RULE 12(B)(6) STANDARD

  In deciding a Rule 12(b)(6) motion, a court "must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant; it should not dismiss the complaint `unless it appears beyond a reasonable doubt that the plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief.'" Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994) (quoting Conlev v. Gibson, 355 U.S. 41, 45-46 (1957)); see also Kaluczkv v. City of White Plains, 57 F.3d 202, 206 (2d Cir. 1995). It should be noted, however, that where a complaint is submitted pro se, "the allegations of such a complaint, `however inartfully plead,' are held to `less stringent standards than formal pleadings drafted by lawyers.'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). Thus, in cases where a pro se plaintiff is faced with a motion to dismiss, it is appropriate for the court to consider materials outside of the complaint to the extent they "are consistent with the allegations in the complaint." See Donahue v. United States Dep't of Justice, 751 F. Supp. 45, 49 (S.D.N.Y. 1990) (considering pro se plaintiff's papers filed in opposition to motion to dismiss); see also Tsai v. Rockefeller Univ., 137 F. Supp.2d 276, 280 (S.D.N.Y. 2001) (same); Williams v. Koenigsmann, No. 03 Civ 5267, available at 2004 WL 315279, at *1 n.1 (S.D.N.Y. Feb. 18, 2004) (same); Supinski v. Merrill Lynch & Co., No. 00CV7363, available at 2001 WL 930779, at *1 n.2 (E.D.N.Y. Aug. 13, 2001) (same). Thus, in laying out the factual background of the case, for the purposes of deciding defendants' pending motion to dismiss, the factual allegations contained in plaintiff's complaint and opposition papers will be considered. (Docket Nos. 13, 44.)

 III. FACTUAL BACKGROUND

  Taken in the light most favorable to plaintiff, the non-moving party, the following are the facts.

  Plaintiff, at all relevant times, was incarcerated at Oneida Correctional Facility ("OCF"). On April 20, 2000, plaintiff's counselor at OCF referred him to the Sex Offender Counseling Program ("SOCP"). (Docket No. 13, ¶ 9.) Successful completion of the SOCP requires, among other things, the participant to accept responsibility for the sexually offending behavior that resulted in his or her incarceration, and to divulge any history of sexually offending behavior, including acts or conduct for which the participant was not or has not been criminally charged. Accordingly, "[a]ny offender who wishes to participate in the [SOCP] must sign a Waiver of Partial Confidentiality." (Docket No. 44, App.)

  According to the SOCP policy and procedure manual, if an inmate elects to participate and disclose the information outlined above, program counselors "are required to report evidence of child physical and/or sexual abuse that has occurred or is planned and any specific details of previous crimes for which the offender has not been charged." Id. The manual further notes that "an inmate who discloses the details of any prior crime(s), must be reported to the appropriate authorities so that society will be protected." Id.

  Plaintiff informed the counselor that he was not guilty of any sex crime, including the one prompting his current incarceration, and that he did not wish to divulge any past information that could prompt further criminal charges. Plaintiff also informed the counselor that he was incarcerated as a result of a plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), under which plaintiff did not have to admit guilt. Accordingly, plaintiff informed the counselor he would not enter the SOCP. (Docket No. 13, ¶ 9.) According to the SOCP policy and procedure manual, inmates who refuse to participate in the program "should be made aware of the negative impact his/her decision may have on. . . . Time Allowance Committee decisions." (Docket No. 44, App.)

  Though defendants assert that plaintiff has not alleged any causal connection between the refusal to divulge a sexual history and the loss of good time credits one would suffer as a result thereof, a cursory scan of the allegations reveals that this is not true. Plaintiff alleges that "[o]n April 20, 2000, his counselor advised [him] in writing that his refusal will result in loss of good time [credits]." (Docket No. 13, ¶ 10) (emphasis added). Plaintiff claims that he thereafter wrote several letters to OCF administrators explaining the situation as he perceived it. On November 9, 2000, he claims to have received a letter from defendant Yourth, who informed him "that his failure to participate in the [SOCP] will result in [a] negative impact on his earning good time." Id. at ¶ 12 (emphasis added). On February 14, 2001, plaintiff alleges to have written defendant Carter, stating his desire to participate in the program if were allowed to not admit his guilt to the crime for which he was incarcerated, and divulge a sexual history, including acts for which no criminal charges had yet been brought, Id. at ¶ 13. On March 20, 2001, plaintiff alleges to have written a Department of Corrections' attorney regarding his situation. He claims to have been informed by this attorney "that he must participate in the SO[C] P or lose his good time and other privileges." id. at ¶ 14 (emphasis added).*fn2

  On April 23, 2002, plaintiff filed a second amended complaint, asserting causes of action pursuant to 42 U.S.C. § 1983.*fn3 In the complaint, plaintiff contends that the program, by requiring him to divulge a history of sexual conduct, including illegal acts for which no criminal charges had been brought, or else face a loss of good time credits, violated his Fifth Amendment privilege against self-incrimination. The remainder of the causes of action asserted by plaintiff in the second ...


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