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December 13, 2005.

MARVIN BERNSTEIN, Director, Mental Hygiene Legal Service, First Judicial Department, and MICHAEL B., EUGENE C., and EDDIE L., patients at Kirby Forensic Psychiatric Facility, on behalf of themselves and on behalf of all others similarly situated, Plaintiffs,
GEORGE E. PATAKI, in his official capacity as Governor of the State of New York, SHARON CARPINELLO, in her official capacity as Commissioner of the New York State Office of Mental Health, and EILEEN CONSILVIO, in her official capacity as Director of Kirby Forensic Psychiatric Facility, Defendants.

The opinion of the court was delivered by: GERARD LYNCH, District Judge


Plaintiffs Michael B., Eugene C., and Eddie L. are involuntarily-committed psychiatric patients who, at the time the Complaint was filed, resided at Kirby Forensic Psychiatric Facility ("Kirby"), a maximum-security psychiatric facility operated by the New York State Office of Mental Health ("OMH"). In this putative class action, plaintiffs, who were committed after being found incompetent to stand trial, claim that New York law violates their due process and equal protection rights (and those of patients similarly situated) because it permits them to be housed at Kirby (as opposed to a less restrictive, non-secure hospital) without a judicial hearing on whether they suffer from a dangerous mental disorder warranting such retention. Defendants move to dismiss the Complaint, while plaintiffs move to certify a class of similarly-situated patients. The motion to dismiss will be granted; plaintiffs' class-certification motion will be denied as moot.*fn1


  The following facts are drawn largely from the Complaint, the allegations of which are taken as true for the purposes of ruling on defendants' motion to dismiss. E.g., Kopec v. Coughlin, 922 F.2d 152, 153 (2d Cir. 1991). Plaintiffs were placed at Kirby at the direction of OMH after being found unfit to stand trial on criminal charges for misdemeanors or low-level felonies. (Pl.'s Mem. Supp. Mot. Dismiss at 1.) Kirby is a secure facility that, according to plaintiffs, is "significantly more restrictive" than other "non-secure" treatment facilities operated by OMH; it is "intended for the confinement of the most dangerous individuals within the New York mental health system." (Compl ¶ 6-9.)*fn2 The decision whether a patient will be placed and retained in a secure facility such as Kirby is committed to OMH's discretion. See N.Y. Crim. Proc. L. § 730.40(1); (Compl. ¶¶ 7, 9, 11, 12).

  The statutory and regulatory scheme operates as follows: When a criminal defendant facing misdemeanor or minor felony charges is declared incompetent to stand trial, he is placed in OMH's custody "for care and treatment in an appropriate institution," Crim. Proc. L. § 730.40(1); within 24 hours, OMH designates the facility to which the person will be committed. (Compl. ¶¶ 11-12.) The criminal charges against the defendant are thereafter dropped. See Crim Proc. L. § 730.40(1)-(2). In order for the individual to be involuntarily retained for more than 90 days after being placed in OMH custody, the individual, pursuant to N.Y. Mental Hygiene Law § 9.33, must be found to be mentally ill and in need of involuntary care and treatment, issues on which the individual is entitled to a judicial hearing. See id. § 730.40(1)-(2); N.Y. Mental Hyg. L. §§ 9.27, 9.33; (Compl. ¶ 14-17). An initial section 9.33 commitment is valid for up to one year; the director of the hospital in which the patient is housed may make subsequent section 9.33 applications to extend the commitment for an additional two years at a time. Id. § 9.33(d).

  The Mental Hygiene Law does not direct where the patient should be housed if retention is found to be warranted. (Compl. ¶ 17.) Addressing this statutory silence, the First Department in Consilvio v. Michael B. held that a court authorizing retention of an individual under section 9.33 lacks the authority to review OMH's decision to hold an individual in a secure facility. 764 N.Y.S.2d 12, 13 (1st Dep't 2003). The sole mechanism by which a patient may obtain judicial review of his placement in such a facility, the court held, is through an Article 78 challenge to OMH's denial of a transfer application filed pursuant to 14 N.Y.C.R.R. § 517.4. Michael B., 764 N.Y.S.2d at 13-14. While section 517.4 specifies various procedural requirements to which OMH must adhere and factors that OMH should consider in reviewing a transfer application, the ultimate decision to grant or deny such an application is left to OMH's discretion. Cf. In re Jerome G., 607 N.Y.S.2d 709, 710 (2d Dep't 1994) (holding that once the retention of an individual is authorized under section 9.33, "the decision as to which facility is appropriate is left to the discretion of the Commissioner of the New York State Office of Mental Health"). The denial of a transfer application can be vacated or reversed by an Article 78 court only upon a showing that OMH's decision was arbitrary and capricious, an abuse of discretion, or tainted by legal error. See N.Y.C.P.L.R. § 7803(3).

  Plaintiffs, unsatisfied with this limited opportunity for judicial review, urge that a hearing at which OMH must prove to a court that an individual suffers from a dangerous mental disorder warranting retention in a secure facility is necessary to satisfy the requirements of the Due Process and Equal Protection Clauses of the Fifth and Fourteenth Amendments to the United States Constitution. (Pl.'s Mem. Opp. Mot. Dismiss at 3-4.)*fn3 DISCUSSION

  I. Procedural Due Process

  Plaintiffs' first claim is that their retention at Kirby without a hearing on the issue of dangerousness deprives them of liberty without due process of law. To state a procedural due process claim, plaintiffs must sufficiently allege (1) that they possess a protected liberty interest, and (2) that defendants deprived them of that interest without providing adequate process. Velez v. Levy, 401 F.3d 75, 87 (2d Cir. 2004). Because plaintiffs lack a protected liberty interest, this claim will be rejected.

  While it is undisputed that an individual has a protected liberty interest in freedom from involuntary commitment, see Vitek v. Jones, 445 U.S. 480, 491-92 (1980); O'Connor v. Donaldson, 422 U.S. 563, 573-76 (1975), plaintiffs do not challenge the procedures that led to their commitment. Rather, they challenge the manner of their treatment, specifically their retention at Kirby without the opportunity to secure a judicial determination on the issue of their dangerousness. In Meachum v. Fano, the Supreme Court addressed an identical claim in the prison context and held that a criminal conviction "sufficiently extinguished the defendant's liberty interest to empower the State to confine him in any of its prisons," even though "the degree of confinement in one prison may be quite different from that in another[.]" 427 U.S. 215, 224 (1976) (emphasis in original). The Court reasoned that
[c]onfinement in any of the State's institutions is within the normal limits or range of custody which the conviction has authorized the State to impose. That life in one prison is much more disagreeable than in another does not in itself signify that a Fourteenth Amendment liberty interest is implicated when a prisoner is transferred to the institution with the more severe rules. . . . To hold, as we are urged to, that any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts. . . . Transfers between institutions, for example, are made for a variety of reasons and often involve no more than informed predictions as to what would best serve institutional security or the safety and welfare of the inmate. Yet under the approach urged here, any transfer, for whatever reason, would require a hearing as long as it could be said that the transfer would place the prisoner in substantially more burdensome conditions than that he had been experiencing.
Id. at 225. While there are significant differences between the situation of a civilly-committed individual and convicted criminal subject to a sentence of imprisonment, Meachum's rationale is nonetheless persuasive in this context. Thus, it is unsurprising that (as plaintiffs concede) the Second Circuit has rejected the notion that a civilly-committed patient has a protected liberty interest in being confined in the "least-restrictive" treatment environment. (Pl.'s Mem. Opp. Mot. Dismiss at 8 n. 4). See, e.g., Kulak v. City of New York, 88 F.3d 63, 73 (2d Cir. 1996). That being the case, plaintiffs cannot claim a protected interest in not being retained at a secure facility, and thus are not entitled to a judicial hearing on the propriety of that retention.

  Plaintiffs' first response is that Meachum is inapplicable outside of the post-criminal conviction context. See Benjamin v. Fraser, 264 F.3d 175, 188-90 (2d Cir. 2001) (holding Meachum inapplicable to pre-trial detainees). Notwithstanding the Second Circuit's decision in Fraser, Kulak's rejection of a right to a "least restrictive" treatment environment in this context is dispositive. In any event, while plaintiffs (like the plaintiffs in Fraser) have not been convicted of any crime, they have been validly committed (unlike the Fraser plaintiffs) pursuant to the procedures set forth in Crim. Proc. L. § 730.40 and MHL Article 9. (Compl. ¶¶ 28-39.).*fn4 Just as a conviction extinguishes a prisoner's right to be housed in a less-secure prison, civil commitment extinguishes a patient's liberty interest in being housed in a less-secure psychiatric facility.

  Plaintiffs' primary response is to argue that notwithstanding cases such as Meachum and Kulak, where (as here) "a state has created a two-tiered system for housing its mentally ill, with one tier entailing substantially greater restrictions on a patient's liberty that the other, a liberty interest arises in being confined in the less-restrictive setting." (Pl.'s Mem. Opp. Mot. Dismiss at 8 n. 4.) According to plaintiffs, this right derives from the interest in "freedom from undue bodily restraint" recognized in the Supreme Court's decision in Youngberg v. Romeo, 457 U.S. 307 (1982). This argument is meritless. As an initial matter, the right to treatment in the "least restrictive setting appropriate to the patient's medical needs and treatment goals," (Pl.'s Mem. Opp. Mot. Dismiss at 8 n. 4), itself presumes the existence and availability of some "less restrictive setting" than that which the complaining party currently occupies; as noted above, plaintiffs concede that this right was rejected by the Second Circuit in Kulak. Plaintiffs' argument that such a right nonetheless exists any time a "substantially" less-restrictive alternative to current treatment is available all but nullifies the Second Circuit's holding. More basically, plaintiffs misconstrue the nature of the liberty interest recognized in Romeo. In that case, the Supreme Court indeed held that the fact that an individual has been civilly committed under proper procedures "does not deprive him of all substantive liberty interests under the Fourteenth Amendment." Id. at 315. And the Court did go on to hold that a patient "retain[s] liberty interests in safety and freedom from bodily restraint." Id. at 319. However, the Court cabined the interest in freedom from bodily restraint, holding that it extends only to those restraints unsupported by professional judgment. Specifically, the Court held that the decision to impose greater physicial restraints in a treatment setting, "if made by a professional, is presumptively valid; liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards, as to demonstrate that the person responsible actually did not base the decision on such a judgment." Id. at 323. Plaintiffs' claims do not implicate that liberty interest — plaintiffs do not attack the substance of OMH's decisions to retain them at Kirby, let alone claim that they were a "substantial departure from accepted professional judgment, practice, or standards," but rather claim only an entitlement to a judicial hearing on the propriety of their retention. In fact, they explicitly state that their "complaint is not with any particular executive action; they do not complain that OMH or any of its officers acted arbitrarily in assigning any particular patient to Kirby rather than a non-secure facility." (Pl.'s Mem. Opp. Mot. Dismiss at 18.)*fn5 Plaintiffs next claim that even if no liberty interest deriving from federal constitutional principles is implicated in this context, New York state law does create such an interest. In Rodriguez v. McLoughlin, the Second Circuit explained that a state may create a liberty interest that would not otherwise be protected by the Due Process Clause, but that such an interest may only be recognized in certain limited instances:
Mere expectations do not necessarily give rise to a state-created liberty interest protected by the Due Process Clause. "[A] State creates a protected liberty interest by placing substantive limitations on official discretion." Dep't of Corrections v. Thompson, 490 U.S. at 462, quoting Olim v. Wakinekona, 461 U.S. 238, 249 (1983). "The most common manner in which a State creates a liberty interest is by establishing `substantive predicates' to govern official decisionmaking . . . and, further, by mandating the outcome to be reached upon a finding that the relevant criteria have been met." Thompson, 490 U.S. at 462, quoting Hewitt v. Helms, 459 U.S. at 472 ("specified substantive predicates"). To create a liberty interest, a statute or regulation must "contain `explicitly mandatory language,' i.e., specific directives to the decisionmaker that if the regulations' substantive predicates are present, a particular outcome must follow." Thompson, 490 U.S. at 463, quoting Hewitt, 459 U.S. at 472.
214 F.3d 328, 338 (2d Cir. 2000). Plaintiffs do not claim that any "explicitly mandatory language" guides OMH in the retention of patients in secure versus nonsecure facilities. Nevertheless, plaintiffs point to language in 14 N.Y.C.R.R. § 36.1, which states:
§ 36.1 Statement of philosophy
The long-term rehabilitation of mentally disabled persons is promoted by maintenance of relationships with other persons and agencies in the community, avoidance of institutionalization, and minimization of disruption of life rhythms. The civil rights of mentally disabled persons require that such persons be treated and served in the least restrictive setting possible in which treatment or service goals can be met. Therefore, periods of inpatient service should be as short as possible in accordance with the individual patient's plan of care and treatment. This philosophy will, in many cases, require continued service to a patient on an outpatient basis at the conclusion of inpatient service.
(Emphasis added.) (Pl.'s Mem. Opp. Mot. Dismiss at 9-10.)

  Although the Seventh Circuit in Johnson v. Breljie, 701 F.2d 1201, 1205 (7th Cir. 1983), found similar language to create a liberty interest in not being retained in a maximum-security facility, under Rodriguez, the abstract "[s]tatement of philosophy" that persons shall be treated in the least restrictive setting possible does not itself create any particular due process right. First, section 36.1 itself spells out the consequences of the statement of philosophy, and states only that "periods of inpatient service should be as short as possible in accordance with the individual patient's plan of care and treatment," not that patient have a right to be housed in any particular type of facility during the tenure of their commitment. Second, the regulation does not discuss any particular decision, commitment procedure, or aspect of patient care, let alone provide "specific directives to the decisionmaker" that, with respect to some specific treatment decision, "a particular outcome must follow" if the regulation's "substantive predicates are present." Rodriguez, 214 F.3d at 338.*fn6 Finally, if this general language did give rise to a state-created liberty interest, then each and every specific treatment decision made by OMH that arguably has some nexus to the restrictiveness of a patient's care would be ripe for procedural due process challenge. For these reasons, section 36.1 does not give rise to a state-created liberty interest protected by the Due Process Clause.*fn7

  Patients in plaintiffs' situation are not completely without due process protection regarding their retention in a secure psychiatric facility. If, for instance, it could be argued that the retention of a patient in a secure facility is unsupportable as a matter of professional judgment, that decision would run afoul of the interest in freedom from bodily restraint recognized in Romeo. In addition, under Vitek v. Jones, if the individual's placement in a particular secure facility is "not within the range of conditions of confinement" to which involuntary commitment subjects an individual, a right to a due process hearing prior to such placement may be warranted. 445 U.S. at 492-94 (holding that criminal conviction does not authorize involuntary psychiatric treatment ...

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