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David Mcchesney v. Michael F. Hogan

September 30, 2011


The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge



Presently before the Court is a motion (Dkt. No. 32) by defendants for summary judgment dismissing the remaining claims in this pro se action pursuant to 42 U.S.C. § 1983. Plaintiff, a convicted sex offender, has been civilly committed to the Central New York Psychiatric Center ("CNYPC") for participation in sex offender treatment. In his complaint, plaintiff alleges that his forced participation in the Sex Offender Treatment Program ("SOTP") administered at the CNYPC violates his constitutional rights. After motion practice, the sole remaining claims are First Amendment Establishment and Free Exercise claims for injunctive relief against defendants in their official capacities. Plaintiff, who says he is an atheist, claims that the SOTP is based in part on religious tenets and that he is being compelled to practice religion in violation of his First Amendment rights. In moving for summary judgment, defendants contend that the group treatment modalities at issue are not based on religious tenets and do not violate plaintiff's First Amendment rights. Defendants also contend that they are entitled to summary judgment due to their lack of personal involvement. Plaintiff has not submitted opposition to the motion.

Upon referral pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c), United States Magistrate Judge David E. Peebles has issued a Report and Recommendation (Dkt. No. 33) recommending that the motion be denied. Defendants object (Dkt. No. 34). Upon de novo review pursuant to 28 U.S.C. § 636(b)(1)(C), the Court accepts the Report and Recommendation in large part and denies the motion for summary judgment.


The Court refers the reader to the Report and Recommendation for the background of the case, the facts, and the applicable law. In view of defendants' objections, the Court sets forth the following brief analysis.

1. Establishment Clause

The Court first addresses the question of whether defendants have proven their entitlement to judgment dismissing plaintiff's Establishment Clause claim. The Establishment Clause provides that "Congress shall make no law respecting an establishment of religion." U.S. CONST. amend. I. Magistrate Judge Peebles ably sets out the applicable law, and observes that the ultimate inquiry for the purposes of plaintiff's Establishment Clause claim is whether the SOTP requires plaintiff's participation in religious activity.

Defendants contend that they have established the absence of religious content in the SOTP treatment modalities, and that plaintiff, having submitted no opposition to the motion, has failed to raise a material question of fact on the issue. As Magistrate Judge Peebles points out, however, the record contains only the "protocols" followed for each SOTP program, not the actual program materials. Magistrate Judge Peebles writes:

It may well be that the treatment programs are so infused with religious principles that participation results in subtle coercion. None of the program materials have been submitted to the court, and there is no evidence as to their actual content, leaving unanswered the question of whether the primary purpose of the programs is to promote religion. On the record before the court, I am unable to resolve this issue and conclude that the treatment modalities to which plaintiff objects lack subtle coercive pressure to engage in religious activity.

(Citation omitted.) The Court has reviewed defendants' submissions and agrees with Magistrate Judge Peebles that defendants have not produced evidence establishing as a matter of law that the SOTP does not offend the Establishment Clause.

In their objection, defendants point out that plaintiff did not respond to their Statement of Material Facts and that therefore all facts therein are deemed admitted. Many of the "facts" defendants rely on, however, are actually conclusions. For example, No. 27 in defendants' Statement of Material Facts states: "The 'From the Inside Out' group modality does not advocate any religion and does not involve the use of proselytizing or religious indoctrination." This, however, is not a fact but rather a conclusion that the Court may or may not reach after reviewing the program materials. The Court concludes that defendants have not carried their burden on this motion of proving that the SOTP treatment modalities at issue do not violate the Establishment Clause. Defendants are not entitled to summary judgment on this issue.

2. Free Exercise

The Free Exercise Clause states: "Congress shall make no law ... prohibiting the free exercise [of religion]." U.S. CONST. amend. I. The Court refers the reader to Magistrate Judge Peebles' summary of the applicable law. The Free Exercise Clause, the purpose of which is "to secure religious liberty ...

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