The opinion of the court was delivered by: Scullin, Senior Judge
MEMORANDUM-DECISION AND ORDER
Currently before the Court are Defendants' objections to Magistrate Judge Lowe's September 30, 2010 Order and Report-Recommendation, in which he recommended that the Court grant in part and deny in part Defendants' motion to dismiss Plaintiff's complaint pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Dkt. No. 60 at 2.
A. Procedural and statutory background
On January 12, 2004, Plaintiff pled guilty to one count of violating New York Penal Law § 130.65(3) (sexual contact with a person less than eleven years of age). See Dkt. No. 1 at Exhibit "K." Under New York law, the maximum sentence for this crime is seven-years' imprisonment. See N.Y. Penal Law §§ 70.00(2)(d), 130.65. On April 5, 2004, Plaintiff was sentenced to serve two and one-half years in state prison, followed by three years of post-release supervision. See Defendants' Exhibit "A."*fn2 Plaintiff was scheduled to be released from custody onto supervised release on May 8, 2006.
On or about May 1, 2006, two psychiatrists examined Plaintiff pursuant to New York Mental Hygiene Law § 9.27. That statute provides for the involuntary commitment of "any person alleged to be mentally ill and in need of involuntary care and treatment[.]" N.Y. Mental Hyg. Law § 9.27(a). An application for such an involuntary commitment must be made by an individual with personal knowledge and must be accompanied by the certificates of two examining physicians. See N.Y. Mental Hyg. Law § 9.27(a)-(b). A doctor at the receiving facility must examine the patient and confirm the findings of the certifying physicians. See N.Y. Mental Hyg. Law § 9.27(e).
Under this statutory scheme, patients are not entitled to a hearing until after they have been involuntarily committed. See N.Y. Mental Hyg. Law § 9.31. Patients may demand a hearing within sixty days of their involuntary commitment. See id. If the patient does not make such a demand, the patient may be held for a maximum of sixty days, unless the director of the facility applies for a court order authorizing continued retention for up to six months. See N.Y. Mental Hyg. Law § 9.33. Upon receipt of such an application, the patient may demand a hearing on the need for involuntary retention. See N.Y. Mental Hyg. Law § 9.33(a). Section 9.33(a) authorizes the hospital to retain the patient while the retention application is pending. If the court grants the retention application, the patient may demand a rehearing and review of the prior proceeding before a jury. See N.Y. Mental Hyg. Law § 9.35. At the end of any initial six-month court-ordered retention, the director of the facility, following the same procedures, may obtain a retention order effective for up to an additional year. See N.Y. Mental Hyg. Law § 9.33(d).
Plaintiff alleges that, on May 5, 2006, he was instructed to go to the medical department at Marcy Correctional Facility. See Dkt. No. 1, Complaint, at ¶ 10. When Plaintiff arrived, a nurse examined him. See id. at¶ 11. After the examination, Plaintiff was instructed to remain in the medical department until a sergeant saw him. See id. at ¶ 12. When the sergeant arrived, he handcuffed Plaintiff and informed him that he was being sent to the Special Housing Unit ("SHU"). See id. at ¶ 13. Plaintiff was then transported to the SHU. See id. When he arrived at the SHU, he was strip searched and verbally threatened and harassed. See id. at ¶¶ 14-15. At one point, he was pushed into the wall he was facing. See id. at ¶ 15.
Once he was in his cell in the SHU, Plaintiff asked to see a lieutenant. See id. at ¶ 17. When the lieutenant arrived, Plaintiff asked why he had been detained in the SHU. See id. at
¶ 18. The lieutenant told Plaintiff to "fuck off" and walked away. See id.
On May 8, 2006, Defendant D. Blair, a parole agent, came to see Plaintiff in the SHU. See id. at ¶ 19. He presented Plaintiff with a "Certificate of Release to Parole Supervision." See id. Plaintiff alleges that the document originally reflected that Plaintiff would be paroled to an apartment in Union Center, New York, for which Plaintiff's father had cosigned a lease and paid a deposit on March 1, 2006. See id. at ¶ 29 and Exhibit "B." Plaintiff and Defendant Blair each signed the Certificate of Release. See id. at ¶ 22. When Plaintiff requested a copy, Defendant Blair ripped the document out of Plaintiff's hand and told him that he would get a copy. See id.
After about an hour, Defendant Blair returned to Plaintiff's cell, threw a copy of a document at Plaintiff, and left without further explanation. See id. at ¶ 23. Plaintiff examined the document and discovered that his Union Center address had been whited out and replaced with the words "Central New York Psychiatric Center" ("CNYPC"). See id. at ¶ 26. Plaintiff immediately advised two corrections officers that there was a problem with the document. See id. at ¶ 25. Later that day, Plaintiff was transported to CNYPC for an initial sixty-day commitment pursuant to Mental Hygiene Law § 9.27. See id. at ¶ 27 and Exhibit "K."
On June 27, 2006, ten days before the expiration of Plaintiff's initial sixty-day commitment at CNYPC, Defendant Sawyer applied, pursuant to Mental Hygiene Law § 9.33, to retain Plaintiff for an additional six months at CNYPC. See id. at Exhibit "K" at ¶ 3. Plaintiff, through counsel, contested the application. See id.
On October 10, 2006, Defendant Peroni conducted a Treatment Plan Review. See id. at ¶ 39. Defendant Peroni found that Plaintiff suffered from pedophilia and a personality disorder. See id. at ¶ 40.
Thereafter, on November 21, 2006, the New York State Court of Appeals held that Article 9 of the Mental Hygiene Law's procedures could not properly be used for individuals, like Plaintiff, who were serving a prison sentence immediately before being civilly committed. See New York ex rel. Harkavy v. Consilvio (Harkavy I), 7 N.Y.3d 607 (2006). Rather, the court held that officials were required to comply with New York Correction Law § 402. See id. at 614. New York Correction Law § 402 sets forth the procedure for involuntarily civil commitment of "any person undergoing a sentence of imprisonment[.]" N.Y. Correct. Law § 402(1). It requires examination by two court-appointed physicians, court approval of the commitment order after notice to the inmate, and a pre-commitment hearing at the inmate's request before a prisoner may be civilly committed. See id. The Court of Appeals directed that any petitioners remaining in OMH custody be afforded an immediate retention hearing pursuant to article 9 of the Mental Hygiene Law -- now controlling -- since they are no longer serving a prison sentence. . . . As to future candidates for immediate psychiatric hospitalization, prior to the expiration of a term of imprisonment, the State must proceed pursuant to Correction Law § 402, with all its attendant procedural requirements including court supervision, pretransfer notice and an opportunity to be heard within a reasonable period of time prior to the inmate's proposed release date.
Harkvavy I, 7 N.Y.3d at 614 (internal citation omitted).
One week later, Plaintiff's Mental Hygiene Law § 9.33 hearing was conducted in Oneida County Supreme Court. Plaintiff alleges that Defendant Scolosser, who was part of Plaintiff's treatment team at CNYPC and who met with Plaintiff daily, "openly testified against the plaintiff" at the hearing. See Dkt. No. 1 at ¶¶ 80-81, 89. In his testimony, Defendant Scolosser "intentionally twist[ed] certain facts that the plaintiff . . . offer[ed] in group sessions so as to make the plaintiff look foolish, stupid, and not credi[ble]." See id. at ¶ 88. Plaintiff alleges that Defendant Scolosser falsely accused Plaintiff's mother of being an alcoholic. See id. at ¶ 91. Plaintiff contends that, at the hearing, Defendant Scolosser "took the position that even though the plaintiff participated in the Sex Offender Program at Gowanda Correctional Facility, that didn't mean anything." See id. at ¶ 92. Plaintiff claims that Defendant Scolosser was acting in concert with Defendant Elizabeth Farum. See id. at ¶ 82.
On November 30, 2006, the New York Supreme Court issued an order pursuant to Mental Hygiene Law § 9.33 directing that Plaintiff be retained for an additional six months at CNYPC. See id. at Exhibit "K" at ¶ 3. Plaintiff moved for a rehearing pursuant to Mental Hygiene Law § 9.35. The rehearing was never conducted. On February 3, 2008, a stipulation of discontinuance was filed officially withdrawing the Article 9 petition. Plaintiff remained confined at CNYPC.
In response to Harkavy I, New York enacted Article 10 of the Mental
effective April 13, 2007. Article 10 created a new procedure for
civilly committing sex offenders nearing the end of their prison
terms. Under Article 10, when a sex offender is nearing release, the
New York State Department of Correctional Services ("DOCS")*fn3
must, "at least one hundred twenty days prior to the person's
anticipated release," give notice to the New York State Attorney
General and the New York State Commissioner of Mental Health. N.Y.
Mental Hyg. Law § 10.05(b). The commissioner of mental health is then
authorized to designate multidisciplinary staff to review the
individual's records to determine whether he should be referred to a
case review team for evaluation. See N.Y. Mental Hyg. Law § 10.05(d).
If the individual is referred to a case review team, notice must be
provided to him. See N.Y. Mental Hyg. Law § 10.05(e). If the case
review team finds that the individual is a "sex offender requiring
civil management," it must notify the attorney general and the
individual in writing. See N.Y. Mental Hyg. Law § 10.05(g). The
attorney general may then file a petition in the supreme court or
county court of the county in which the individual is located, seeking
to detain the individual in a psychiatric institution. See N.Y. Mental
Hyg. Law § 10.06(a). Within thirty days of the filing of a petition, a
court shall conduct a probable cause hearing. See N.Y. Mental Hyg. Law
§ 10.06(g). At the probable cause hearing, a judge must determine
whether there is probable cause to believe that the individual may
have a mental abnormality, i.e., is a sex offender requiring civil
management. See N.Y. Mental Hyg. Law § 10.06(k). If the judge finds
probable cause, the individual "shall not be released pending the
completion of [the] trial." Id.
Thereafter, a trial shall be conducted within sixty days of the
finding of probable cause. See N.Y. Mental Hyg. Law § 10.07(a). At the
trial, the jury shall determine by clear and convincing evidence
whether the individual "is a detained sex offender who suffers from a
mental abnormality." N.Y. Mental Hyg. Law § 10.07(d).*fn4
If the jury determines that the individual is a detained sex
offender who suffers from a mental abnormality, "the court shall
consider whether the [individual] is a dangerous sex offender
requiring confinement or a sex offender requiring strict and intensive
supervision." N.Y. Mental Hyg. Law § 10.07(f). If the court finds, by
clear and convincing evidence, that the individual is a "dangerous"
sex offender, the court may then either order the individual committed
to a secure treatment facility or subject him to a regimen of strict
and intensive supervision and treatment. See id.
On November 9, 2007, the New York State Attorney General's Office filed a petition seeking to detain Plaintiff pursuant to Mental Hygiene Law Article 10. See Dkt No. 1 at Exhibit "J." The petition alleged, based in part on the results of a "STATIC-99" test, that Plaintiff was 52% likely to re-offend within a six-year period. See id. at ¶ 11. Plaintiff alleges that STATIC-99 "is not permitted to be considered in . . . New York State" and that it "was mis-applied and unlawful." See Dkt. No. 1 at ¶ 121.
One week later, on November 16, 2007, the United States District Court for the Southern District of New York ("the Southern District") issued an order stating that it intended to issue a preliminary injunction barring then-governor Elliot Spitzer, then-Attorney General Andrew Cuomo, Michael Hogan, Diana Jones Ritter, and Brian Fischer from enforcing two provisions of Article 10, including the provision that mandates detention in the period between the probable cause hearing and the commitment trial even without a finding of current dangerousness. See Mental Hyg. Legal Serv. v. Spitzer, No. 07 Civ. 2935, 2007 WL 4115936 (S.D.N.Y. Nov. 16, 2007), aff'd by Mental Hygiene Legal Servs. v. Paterson, No. 07-5548-CV, 2009 WL 579445 (2d Cir. Mar. 4, 2009).
Plaintiff's probable cause hearing was conducted nineteen days later, on December 5, 2007. The judge found that there was probable cause "to believe that [Plaintiff] [was] a sex offender requiring civil management under Article 10" and ordered that Plaintiff be held at CNYPC pending trial. Despite the Southern District's order, the judge did not make a finding that Plaintiff was currently dangerous. Trial was set for March 18, 2008. See Dkt. No. 39 at Exhibit "J." As discussed further below, it does not appear that, to date, Plaintiff's trial has ever been conducted.
On December 10, 2007, the Southern District issued the preliminary injunction contemplated in its November 16, 2007 order. The court ordered that no individual could be detained pending an Article 10 trial "unless the court that directed his confinement has made or subsequently makes a specific, individualized judicial finding of probable cause to believe that the person is sufficiently dangerous to require confinement, and that lesser conditions of supervision will not suffice to protect the public during the pendency of the proceedings[.]"
Mental Hyg. Legal Serv. v. Spitzer, No. 07 Civ 2935, Dkt. No. 41 at 1.*fn5 The court noted that any individual who was confined on the effective date of this order without the requisite findings . . . will remain so confined unless and until he makes a request for release, to the court that directed his confinement, on the grounds that there is not probable cause to believe that he is sufficiently dangerous to require confinement or that lesser conditions of supervision will suffice to protect the public during the pendency of the proceedings.
On the date of the Southern District's decision, as discussed above, Plaintiff was an individual confined "without the requisite findings."
On May 8, 2008, Plaintiff was arrested for assaulting a CNYPC staff member. See Dkt. No. 39 at Exhibit "K." On June 12, 2008, he pled guilty and was sentenced to time served. See id. On June 30, 2008, the Parole Board revoked Plaintiff's post-release supervision on his original 2004 conviction and returned him to DOCS custody. See id.
On February 18, 2009, Plaintiff moved, through counsel, to dismiss the Article 10 petition. See id. at 1. Plaintiff argued that, by confining him to DOCS custody when his parole was revoked rather than retaining him at CNYPC, the attorney general had essentially withdrawn the Article 10 petition. See id. at 2. In the alternative, Plaintiff argued that, because his anticipated release date was more than 120 days in the future, the attorney general could not permissibly proceed with an Article 10 petition. See id.
On March 20, 2009, Plaintiff filed this action. See Dkt. No. 1. On June 30, 2009, the state court denied Plaintiff's motion to dismiss the Article 10 petition.
Plaintiff was released from DOCS custody to CNYPC on November 2, 2009. See Dept. of Corr. Inmate Information, http://nysdocslookup.docs.state.ny.us. As of November 5, 2009, his Article 10 trial had not yet occurred. See Dkt. No. 39 at Exhibits "L"-"N." In fact, nothing in the record before the Court indicates that the Article 10 hearing has ever been conducted. The Court's docket, however, indicates that Plaintiff is no longer housed at CNYPC, but now resides at the Manhattan Psychiatric Center. See Dkt. No. 66.*fn6
Plaintiff alleges that his confinement from May 8, 2006, through May 8, 2008, violated the federal due process clause, that Defendant Hogan violated his rights by not holding an Article 10 trial, and that Defendants did not properly comply with Article 9. See Dkt. No. 1 at ¶¶ 55, 108-110, 123, 126-129. As a result of these alleged constitutional violations, Plaintiff seeks unspecified injunctive relief, compensatory damages including damages for ...