The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
Plaintiff Andrew Pratt ("plaintiff") brings this action pro se pursuant to 42 U.S.C. § 1983 ("§ 1983") challenging the constitutionality of the sex offender treatment program (the "program") administered by the New York State Office of Mental Health ("OMH") at the Central New York Psychiatric Center ("CNYPC").
Plaintiff alleges three aspects of the program are unconstitutional in violation of his First and Fifth Amendment rights of the United States Constitution. First, plaintiff alleges the program promotes religious tenets to the extent that it violates his First Amendment right to abstain from religious practices. Second, he alleges the program's use of a penile plethysmograph*fn1 ("PPG") examination violates his Fifth Amendment right against self-incrimination. Third, plaintiff alleges the program unlawfully compels him to submit to a polygraph examination also in violation of his Fifth Amendment right against self-incrimination. Plaintiff seeks injunctive relief prohibiting the challenged aspects of the program and monetary damages for each separate constitutional violation.
Defendants Michael F. Hogan, Commissioner of the OMH and Donald Sawyer, Executive Director of the CNYPC, (collectively referred to as "defendants") move to dismiss all claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and for f ailure to state a claim upon which relief can be granted. Defendants also move to dismiss plaintiff's claims for monetary damages on the ground that they are entitled to qualified immunity as a matter of law. Plaintiff opposes defendants' motion. Arguments were taken on submission without oral argument.
On November 9, 2007, plaintiff was placed with the OMH while awaiting trial pursuant to Article 10 of the Mental Hygiene Law at CNYPC. On June 16, 2008, a New York State Supreme Court jury found, by clear and convincing evidence, that plaintiff possessed a mental abnormality and condition that predisposed him to committing sex offenses. Pursuant to the court's order, plaintiff was civilly committed to CNYPC under custody and care of the OMH as per Article 10 of the Mental Hygiene Law.
As a patient at CNYPC, plaintiff was enrolled in the "Good Lives Model and Boundaries Program." The "Good Lives Model and Boundaries Program" asks patients to rank "spirituality" as one of the fourteen primary needs in creating an identity while also identifying and ranking other secondary needs. Additionally, patients are instructed to translate the story of a Chinese parable into their own lives. Other treatment phases involves Dialetic Behavior Therapy ("DBT"), a form of therapy for mental disorders that teaches skills to cope with life stressors, and is based upon Eastern philosophy and spiritual training that are similar to Western contemplative and Eastern meditation practices. According to defendants, this treatment enhances therapists' capabilities to treat patients effectively. Other phases of the program include polygraph and PPG testing, in which consent to such examinations furthered the plaintiff's treatment in hopes of obtaining a release from civil confinement.
The polygraph includes the Sexual History Polygraph, the Offense Polygraph, and the Formative Event Polygraph. Each examination seeks to identify a patient's specific treatment needs and promote the patient's progress through the program. The polygraphs address the patient's behavior during treatment as well as looking back at a patient's prior sexual, emotional, and physical abuse history. Although a patient's consent is needed for testing, refusal to undergo the requested polygraph examination may slow or prevent advancement in the program's treatment phase, thereby delaying or in some cases preventing a patient's release. In addition, the program requires patients to undergo PPG testing to assess sexual interests. The procedure involves wrapping a sterilized gauge around the penis, which measures the velocity of blood flow through the organ, while the patient listens to and views depictions of sexual and non-sexual material. As with refusal to undergo the polygraph examination, patients who refuse to consent to the PPG may be prevented from advancing in the program.
On July 23, 2008, plaintiff filed an Article 78 petition in New York State Supreme Court alleging defendants implemented the program with religious programming and terminology in violation of state and federal law. On September 17, 2008, plaintiff filed this § 1983 action in federal court alleging the program's requirements for supervised release violated the First and Fifth Amendment of the United States Constitution. Plaintiff named the same defendants in his complaint as are named in his pending Article 78 state suit. Additionally, plaintiff's state court complaint contained virtually identical causes of action as to the instant § 1983 action, alleging that the "Good Lives Model and Boundaries Program" and DBT contained religious programming and terminology; however, plaintiff's state court complaint did not challenge the program's use of polygraph and PPG testing.
On December 18, 2008, a New York State Supreme Court dismissed plaintiff's Article 78 petition challenging the constitutionality of the program. On December 28, 2008, plaintiff filed a notice of appeal to the state's Appellate Division, Fourth Department. Plaintiff's state court appeal is currently pending.
A. Motion to Dismiss Under Rule 12(b)(1)
Defendants argue plaintiff is barred from seeking relief in federal court for lack of subject matter jurisdiction because of his pending action in state court. Under Younger v. Harris and its progeny, federal courts abstain from intervening in ongoing state court proceedings when the "federal rights and federal interests . . . unduly interfere with the legitimate activities of the States." Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 750-51 (1971). The abstention doctrine in Younger, which involved state criminal trials, has since been extended to cover "federal civil litigation challenging certain other state proceedings." Kaufman v. Kaye, 466 F.3d 83, 86 (2d Cir. 2006) (citing Diamond "D" Constr. Corp. v. McGowan, 282 F.3d 191, 198 (2d Cir. 2002)). The relevant question under Younger is "whether the state's procedural remedies could provide the relief sought[;] not whether the state will provide the constitutional ruling which the plaintiff seeks." Kaufman, 466 F.3d at 87 (emphasis in original) (quoting Spargo v. New York State Comm'n on Judicial Conduct, 351 F.3d 65, 79 (2d Cir. 2003)). Under the three conditions identified by the Second Circuit Court of ...