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David Mcchesney v. (Gts/Dep) Dr. Samuel A Bastien

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


September 20, 2012

DAVID MCCHESNEY, PLAINTIFF,
v.
(GTS/DEP) DR. SAMUEL A BASTIEN, IV, PH.D., EXEC. DIR., ST. LAWRENCE PSYCHIATRIC CTR., DEFENDANT.

The opinion of the court was delivered by: Glenn T. Suddaby, United States District Judge

MEMORANDUM-DECISION and ORDER

Currently before the Court, in this pro se prisoner civil rights action filed by David McChesney ("Plaintiff") against Executive Director of the St. Lawrence Psychiatric Center Samuel A. Bastien ("Defendant"), are the following: (1) Defendant's motion for summary judgment (Dkt. No. 12); (2) United States Magistrate Judge David E. Peebles' Report-Recommendation recommending that Defendant's motion be denied (Dkt. No. 14); and (3) Defendant's Objection to the Report-Recommendation (Dkt. No. 15). For the reasons set forth below, the Report-Recommendation is accepted and adopted, and Defendant's motion is denied.

I. RELEVANT BACKGROUND

Generally, construed with the utmost of liberality, Plaintiff's Complaint asserts a Fourteenth Amendment procedural due process claim against Defendant for continuing to involuntarily commit Plaintiff to the St. Lawrence Psychiatric Center (pursuant to Article 10 of the N.Y. Mental Hygiene Law) for sixty days after the expiration of an order involuntarily committing Plaintiff to that facility on consent for six months (pursuant to N.Y. Correction Law § 402), without affording Plaintiff prior notice and an opportunity to be heard as to that continuing involuntary commitment. (See generally Dkt. No. 1.) For a more detailed recitation of Plaintiff's claim, and the factual allegations giving rise to that claim, the Court refers the reader to the "Facts" and "Claims" section of his Complaint, the exhibits to that Complaint, and Part I of Magistrate Judge Peebles' Report-Recommendation. (Dkt. No. 1, at ¶¶ 7-19 & Exs. AF; Dkt. No. 14, at 3-10.)

Generally, in his motion for summary judgment, Defendant asserts the following four arguments: (1) based on the current record, Plaintiff's initial commitment to the St. Lawrence Psychiatric Center for six months (under N.Y. Correction Law § 402) did not violate his procedural due process rights under the Fourteenth Amendment, as a matter of law; (2) based on the current record, Defendant's 60-day delay in procuring a substitute order retaining Plaintiff in the St. Lawrence Psychiatric Center (under Article 10 of the N.Y. Mental Hygiene Law), after the expiration of the previously described six-month order of retention, did not violate Plaintiff's procedural due process rights under the Fourteenth Amendment, as a matter of law; (3) in any event, Plaintiff has failed to allege facts plausibly suggesting Defendant's personal involvement in the constitutional violation alleged; and (4) in any event, based on the current record evidence (including the fact that Defendant relied on the advice of Office of Mental Health counsel in deciding to "how to address plaintiff's stay at [St. Lawrence Psychiatric Center]"), Defendant is protected from liability as a matter of law by the doctrine of qualified immunity. (Dkt. No. 12, Attach. 10, at 9-20 [attaching pages "7" through "18" of Def.'s Memo. of Law].) For a more detailed recitation of Defendant's legal arguments, the Court refers the reader to the motion for summary judgment in its entirety. (Id.)

Despite having received adequate notice of the failure to respond to Defendant's motion, Plaintiff did not file such a response. (See generally Docket Sheet.) Nor did Defendant file a reply. (Id.)

Generally, in his Report-Recommendation, Magistrate Judge Peebles rejected each of Defendant's four arguments, and recommended that Defendants motion be denied. (See generally Dkt. No. 14, at 10-11, 17-44.) For example, with regard to Defendant's qualified immunity argument, Magistrate Judge Peebles found that the procedural due process right sought to be vindicated by Plaintiff in this action was clearly established during the time in question

(i.e., the fall of 2007), essentially for the following four reasons: (1) the Supreme Court had previously confirmed the existence of that right in the general context of an involuntary confinement in a psychiatric facility; (2) there is no merit to Defendant's argument that such a right ceases to exist, or even reasonably appears to cease to exist, in the specific context of confinements pursuant to Article 10 of the N.Y. Mental Hygiene Law; (3) Defendant has failed to adequately explain, and/or support, why he did not avail himself of the procedure (provided by Article 10) to afford Plaintiff due process while safeguarding the concerns of the community before his term of authorized confinement expired; and (4) Defendant's reliance on the advice of counsel is unavailing because it was objectively unreasonable to rely on that advice under the circumstances. (Id. at 35-43.) Familiarity with the remaining grounds of Magistrate Judge Peebles' Report-Recommendation is assumed in this Decision and Order, which is intended primarily for the review of the parties.

Generally, in his Objection to the Report-Recommendation, Defendant asserts the following four arguments: (1) because it was objectively reasonable for Defendant to rely on the advice of counsel, and because he did so in "good faith" (as expressly recognized by Magistrate Judge Peebles), Defendant should be entitled to qualified immunity; (2) in rejecting the advice-of-counsel argument that Defendant asserted in support of his qualified immunity defense, Magistrate Judge Peebles' erroneously relied on the case of In re Cnty. of Erie, 546 F.3d 222 (2d Cir. 2008), which is distinguishable because (a) that case involved an attorney-client privilege issue, not an advice-of-counsel issue, and (b) in any event, that case turned on the fact that the petitioners therein did not claim a "good faith or state of mind defense" (which is claimed by Defendant in this case; (3) the more-recent Second Circuit case of Taravella v. Town of Woolcott, 599 F.3d 129, 135, n. 3 (2d Cir. 2010), supports the more-applicable point of law that, "at the very least, the solicitation of legal advice informs the reasonableness inquiry" of a qualified immunity defense; and (4) here, it was objectively reasonable for Defendant to rely on the advice of counsel (even if the Court were to determine that the advice was ultimately incorrect), because Defendant was a non-lawyer who was "dealing with a new statute and a new New York Court of Appeals' decision applying that statute," as well as dealing with a "psychiatric patient with an absolutely horrendous record of violent abuse of children." (Dkt. No. 15, at 4-9 [attaching pages "2" through "7" of Def.'s Obj.].)

II. APPLICABLE LEGAL STANDARDS

A. Standard Governing the Review of a Report-Recommendation

When a specific objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to a de novo review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be "specific," the objection must, with particularity, "identify [1] the portions of the proposed findings, recommendations, or report to which it has an objection and [2] the basis for the objection." N.D.N.Y. L.R. 72.1(c).*fn1 When performing such a de novo review, "[t]he judge may . . . receive further evidence. . . ." 28 U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider evidentiary material that could have been, but was not, presented to the magistrate judge in the first instance.*fn2

When only a general objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition.*fn3 Similarly, when an objection merely reiterates the same arguments made by the objecting party in its original papers submitted to the magistrate judge, the Court subjects that portion of the report-recommendation challenged by those arguments to only a clear error review.*fn4 Finally, when no objection is made to a portion of a report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a "clear error" review, "the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Id.*fn5

After conducing the appropriate review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).

B. Standard Governing a Motion for Summary Judgment

In Parts III.A. and III.B. of his Report-Recommendation, Magistrate Judge Peebles correctly recited the well-known legal standard governing a motion for summary judgment, including the standard governing such motions that are not properly opposed by pro se litigants. (Dkt. No. 14, at 11-17.) As a result, this standard is incorporated herein by reference in this Decision and Order, which (again) is intended primarily for the review of the parties.

The Court would add only one point. The failure to respond to a motion for summary judgment does not only impact the Court's consideration of the factual assertions contained the movant's Local Rule 7.1 Statement, as observed by the Magistrate Judge. (Dkt. No. 14, at 13-17.) It also impacts the Court's consideration of the legal arguments contained the movant's memorandum of law. This is because, in this District (as in many districts), when a non-movant fails to oppose a legal argument contained in a defendant's memorandum of law, the defendant's burden with regard to that legal argument has been lightened such that, in order to succeed with regard to that legal argument, he need only show the facial merit of the legal argument.*fn6 The Court notes that this rule applies even when the nov-movant is proceeding pro se (which affords such litigants a certain amount of special solicitude but does not altogether excuse non-compliance with such a rule).*fn7

C. Standard Governing Qualified Immunity Defense

"Once qualified immunity is pleaded, plaintiff's complaint will be dismissed unless defendant's alleged conduct, when committed, violated 'clearly established statutory or constitutional rights of which a reasonable person would have known.'" Williams v. Smith, 781 F.2d 319, 322 (2d Cir. 1986) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 815 [1982]). As a result, a qualified immunity inquiry in a civil rights case generally involves two issues: (1) "whether the facts, viewed in the light most favorable to the plaintiff establish a constitutional violation"; and (2) "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation confronted." Sira v. Morton, 380 F.3d 57, 68-69 (2d Cir. 2004) [citations omitted], accord, Higazy v. Templeton, 505 F.3d 161, 169, n.8 (2d Cir. 2007) [citations omitted].

In determining the second issue (i.e., whether it would be clear to a reasonable officer that his conduct was unlawful in the situation confronted), courts in this circuit consider three factors: (1) whether the right in question was defined with 'reasonable specificity'; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under pre-existing law a reasonable defendant official would have understood that his or her acts were unlawful.

Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991) [citations omitted], cert. denied, 503 U.S. 962 (1992).*fn8 "As the third part of the test provides, even where the law is 'clearly established' and the scope of an official's permissible conduct is 'clearly defined,' the qualified immunity defense also protects an official if it was 'objectively reasonable' for him at the time of the challenged action to believe his acts were lawful." Higazy v. Templeton, 505 F.3d 161, 169-70 (2d Cir. 2007) [citations omitted].*fn9 This "objective reasonableness" part of the test is met if "officers of reasonable competence could disagree on [the legality of defendant's actions]." Malley v. Briggs, 475 U.S. 335, 341 (1986).*fn10 As the Supreme Court has explained, [T]he qualified immunity defense . . . provides ample protection to all but the plainly incompetent or those who knowingly violate the law. . . . Defendants will not be immune if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue; but if officers of reasonable competence could disagree on this issue, immunity should be recognized.

Malley, 475 U.S. at 341.*fn11

III. ANALYSIS

A. Recommendations Regarding Defendant's First Three Arguments

After carefully subjecting the Magistrate Judge's Report-Recommendation regarding Defendant's first three arguments to a clear-errorreview, the Court accepts and adopts those portions of the Report-Recommendation for the reasons stated therein. (Dkt. No. 14, at 17-35.)

The Court would add only the following analysis regarding Defendant's lack-of-personal-involvement argument. That argument is based solely on Fed. R. Civ. P. 12(b)(6), not at all on Fed. R. Civ. P. 56. (Dkt. No. 12, Attach. 10, at 17-18 [attaching pages "15" and "16" of Def.'s Memo. of Law].) Of course, this is entirely permissible.*fn12 Given the presence of record evidence accompanying a motion asserting such an Rule 12(b)(6) argument, the impulse to consider that evidence when evaluating that argument is certainly understandable. (See, e.g.,Dkt. No. 14, at 34 [considering Def.'s declaration acknowledging that he received letter from Plaintiff's counsel dated October 10, 2007, when evaluating Defendant's Rule 12[b][6] lack-of-personal involvement argument].) However, in the undersigned's view, such an impulse should be resisted.

Granted, sometimes a district court in the Second Circuit may liberally construe a pro se plaintiff's response to as effectively amending the allegations contained in the plaintiff's complaint. However, it appears that, generally, a district court may properly do so only when (1) the response is consistent with the allegations contained in the non-movant's complaint, and (2) the response is in opposition to a motion to dismiss for failure to state a claim. Here, Plaintiff has submitted no response at all to Defendant's motion, leaving the Court to only guess as to which allegations he would and would not want amended by the extrinsic evidence in question. More importantly, the pending motion is one for summary judgment, which comes relatively late in a proceeding and after discovery has been supervised by the Court and completed. (See Dkt. No. 10 [Pretrial Discovery and Scheduling Order filed May 16, 2011, establishing discovery deadline of Sept. 13, 2011].)*fn13 Simply stated, sua sponte treating Plaintiff's Complaint as having been effectively amended through the record evidence adduced by Defendants' in support of their own motion for summary judgment would be, in the Court's view, a waste of judicial resources and unduly prejudicial to Defendants under the circumstances.*fn14

Fortunately for Plaintiff, however, even without the benefit of the extrinsic evidence in question, Plaintiff's Complaint (when construed with the utmost of special liberality) contains factual allegations plausibly suggesting that Defendant (1) has directly participated in the challenged conduct, (2) after learning of the violation through a report or appeal, has failed to remedy the wrong, (3) created or allowed to continue a policy or custom under which unconstitutional practices occurred, (4) was grossly negligent in managing the subordinates who caused the unlawful event, and/or (5) failed to act on information indicating that unconstitutional acts were occurring.

For example, Plaintiff's Complaint alleges as follows: (1) during the time in question, Defendant "was the Chief Executive Officer at SLPC" (Dkt. No. 1, at ¶ 11); (2) "[o]n October 5, 2007, plaintiff was not released to parole, but was instead detained by defendant until December 4, 2007" (id. at ¶ 11); (3) Plaintiff filed a petition against Defendant in state court on November 20, 2007, regarding his failure to change Plaintiff's status to one of voluntary commitment (id. at 12); (4) on November 28, 2007, Plaintiff was referred by Defendant's office to a Case Review Team for evaluation under the Sex Offender Management and Treatment Act (id. at ¶ 12); and (5) on November 30, 2007, a New York State court judge declared that Plaintiff was illegally detained and ordered Defendant to release Plaintiff to parole (id. at ¶ 14).

While these allegations do not constitute the model of fair notice, they (albeit barely) satisfy the plausibility standard established by Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007).

B. Recommendation Regarding Defendant's Fourth Argument

After carefully subjecting the Magistrate Judge's Report-Recommendation regarding qualified immunity to a de novo review, the Court rejects each of the arguments asserted in Defendant's Objections (see, supra, Part I of this Decision and Order), and accepts and adopts that portion of the Report-Recommendation for the reasons stated therein (Dkt. No. 14, at 35-43). The Court would add only the following analysis.

As an initial matter, the Court notes that, because Plaintiff failed to file an opposition memorandum of law, Defendant need show only facial merit to his qualified-immunity argument in order to succeed on it. See, supra, Part II.B. of this Decision and Order.*fn15 Unfortunately for Defendant, that legal argument, which fills only two full pages of Defendant's memorandum of law, is not supported by even facial merit. The Court reaches this conclusion for each of the following two independent reasons.

First, Defendant's advice-of-counsel argument appears immaterial to that portion of Plaintiff's claim premised on Defendant's actions occurring between October 5, 2007, and October 10, 2007. Defendant argues that, in deciding to continue to involuntarily commit Plaintiff, Defendant relied on the advice of counsel, which came by way of a letter dated October 10, 2007. The problem is that the alleged due process violation at issue--i.e., involuntarily continuing to commit Plaintiff without affording Plaintiff prior notice and a hearing--first occurred before the sending of that letter, when the order of commitment expired on October 5, 2007 (or perhaps immediately after it expired). While Defendant's advice-of-counsel argument could conceivably serve as a ground for dismissing that portion of Plaintiff's claim premised on Defendant's actions occurring between October 10, 2007, and December 4, 2007, as it is currently briefed, it could not reasonably serve as a ground for dismissing that portion of Plaintiff's claim premised on Defendant's actions occurring between October 5, 2007, and October 10, 2007.

Second, as it is currently briefed, Defendant's advice-of-counsel argument could not even serve as a ground for dismissing that portion of Plaintiff's claim premised on Defendant's actions occurring between October 10, 2007, and December 4, 2007. This is because Defendant's argument is devoid of an adequate explanation of why the claimed right could reasonably have been perceived as not having been clearly established during the time in question (thus rendering reasonable the solicitation of, and reliance on, any legal advice). (See Dkt. No. 12, Attach. 10, at 18-20 [attaching pages "16" through "18" of Def.'s Memo. of Law].)

As the Court construes it, the claimed right in this case is the Fourteenth Amendment procedural due process right of a convicted sex offender to notice and an opportunity to be heard before (or perhaps immediately after) he continues to be involuntarily committed to a psychiatric center as part of a civil commitment (here, pursuant to Article 10 of the N.Y. Mental Hygiene Law) for a period of time beyond the expiration of an order of commitment of a mentally ill inmate (here, issued pursuant to N.Y. Correction Law § 402).

This right appears to have been clearly established long before the time in question, i.e., on October 5, 2007. See, e.g., Specht v. Patterson, 386 U.S. 605, 607-609 (1967) (holding that convicted sex offender had a due process right not to be sentenced to a state mental hospital for a period beyond the expiration of his maximum criminal sentence, without a full judicial hearing "before the magnified sentence [is] imposed"); McNeil v. Dir., Patuxent Inst., 407 U.S. 245, 247-52 (1972) (holding that a convicted assailant had a due process right not to be involuntarily committed to a state mental institution past the expiration of his prison sentence, without the conducting of a "defective delinquent proceeding" prior to the continued commitment).*fn16

Defendant has articulated no objective reason to believe that the New York State Legislature's enactment of Article 10 of the New York Mental Hygiene Law on April 13, 2007, somehow abrogated or qualified that constitutional right--assuming such an abrogation or qualification by a state statute were possible. Similarly, Defendant has articulated no objective reason to believe that the New York State Court of Appeals issuance of its decision in Harkavy II on June 5, 2007, somehow abrogated or qualified that constitutional right, or even undermined the procedural protections afforded by Article 10.

For example, absent from Defendant's motion papers are (1) any identification of the specific legal issue that prompted Defendant to seek the advice of counsel on October 10, 2007, and (2) testimony by Defendant that such an issue was the reason he was seeking such advice. (Cf. Dkt. No. 12, Attach. 2, at ¶ 10 [Def. Decl., stating only, in pertinent part, that, "[a]fer receiving [the letter and Voluntary Request for Hospitalization from Plaintiff's counsel], I consulted with OMH counsel about this matter and I was informed that plaintiff was in lawful custody of OMH pursuant to the provisions of MHL Article 10 and the Court of Appeals' decision in Harkavy II. Thus, it was not necessary that plaintiff's status be converted to a voluntary status."].)

These omissions by Defendant are glaring, given that, at least in the Court's view, Article 10 clearly (1) imposed on Defendant a duty to give an individual notice of referral to a case management team before continuing to involuntarily commit that individual past the expiration of an order of commitment issued pursuant to N.Y. Correction Law § 402, (2) created a procedure pursuant to which the Attorney General could file a securing petition if it appeared that the individual was entitled to release before a case review team made its determination, and (3) required a hearing to occur either before the individual's anticipated release date or within 72 hours from that date. See N.Y. Mental Hyg. Law §§ 10.05(b), 10.05(e), 10.06(f), 10.6(h). Indeed, the Court notes that, on June 27, 2007, Article 10 appears to have been clear enough to the staff at St. Lawrence Psychiatric Center (of which Defendant was the Director at that time)*fn17 for them to have caused another convicted sex offender who was admitted there to be properly served with a notice of referral to a case review team pursuant to Article 10 (for an evaluation of whether he required civil management)--more than three months before the expiration of his prison sentence, which was also on October 5, 2007. New York v. Swartz, 852 N.Y.S.2d 689, 690 (N.Y. Sup. Ct., Chenango Cnty. 2007).*fn18

Furthermore, the Court can find nothing in Harkavy II undermining Article 10. See Harkavy v. Consilvio, 8 N.Y.3d 645, 653 (N.Y. 2007). Indeed, on the first page of its analysis in Harvkay II, the New York State Court of Appeals rather expressly explained, "petitioners are entitled to the procedural protections set forth in Mental Hygiene Law article 10 . . . ." Harkavy v. Consilvio, 8 N.Y.3d at 648. Later in the decision, the Court of Appeals expressly summarizes those procedural protections. Id. at 651.

Simply stated, based on the current record, there appears to be a genuine dispute of material fact as to whether psychiatric center directors of reasonable competence could have disagreed as to whether involuntarily confining Plaintiff after October 5, 2007, without notice and a prior (or immediately subsequent) opportunity to be heard, violated his rights under the Due Process Clause of the Fourteenth Amendment.

Having said all of that, the Court cannot help note that a real possibility appears to exist that Defendant's inability to persuade the Court regarding his advice-of-counsel argument is due to correctable omissions in his legal arguments and affidavit testimony.*fn19 Ordinarily, the Court would decline to give a summary judgment movant a second bite at the apple. However, here, the Court is reluctant to conduct a time-consuming and expensive trial on a claim that could, very possibly, be disposed by pre-trial motion.*fn20 As a result, in this particular circumstance, the Court will deny Defendant's motion only without prejudice to renewal within thirty (30) days of the date of this Decision and Order. Defendant's renewed motion for summary judgment must be limited, however, to his qualified immunity argument.

ACCORDINGLY, it is

ORDERED that Magistrate Judge Peebles' Report-Recommendation (Dkt. No. 14) is ACCEPTED and ADOPTED in its entirety; and it is further

ORDERED that Defendant's motion for summary judgment (Dkt. No.12) is DENIED without prejudice; and it is further

ORDERED Defendant's renewed motion for summary judgment, which must be limited to his qualified immunity argument, is due THIRTY (30) DAYS from the date of this Decision and Order.


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