DAVID McCHESNEY, Pro Se #25527, Marcy, NY, For Plaintiff.
HON. ERIC T. SCHNEIDERMAN, Attorney General of the State of New York, MICHAEL McCARTIN, ESQ., Assistant Attorney General, Albany, NY, For Defendant.
REPORT AND RECOMMENDATION
DAVID E. PEEBLES, Magistrate Judge.
Plaintiff David McChesney, a convicted sex offender who is currently civilly committed to the Central New York Psychiatric Center ("CNYPC") for participation in sex offender treatment, has commenced this action pursuant to 42 U.S.C. § 1983. Plaintiff's complaint asserts a procedural due process violation against defendant Samuel Bastien based upon McChesney's alleged involuntary detention at another psychiatric facility operated by the New York State Office of Mental Health ("OMH") for a period of sixty days, from October 5, 2007 until December 4, 2007.
Currently before the court is a second motion for summary judgment, filed by the defendant with permission from the court, seeking dismissal of plaintiff's complaint on the basis of qualified immunity. For the reasons set forth below, I recommend that defendant's motion be granted.
Plaintiff is a three-time convicted sex offender. Def.'s L.R. 7.1(a)(3) St. (Dkt. No. 18-11) at ¶ 1. On April 5, 2007, following the completion of a prison sentence, plaintiff consented to the issuance of an order by a New York supreme court justice, pursuant to New York Correction Law § 402 ("section 402"),  authorizing his transfer out of the New York State prison in which he had been confined and into the Saint Lawrence Psychiatric Facility ("SLPC"), a facility operated by the OMH. Id. at ¶ 3. Under its terms, that commitment order was scheduled to expire on October 5, 2007. Id. at ¶ 23.
Although plaintiff was originally transferred into the SLPC as an "inmate in need of care and treatment" pursuant to the section 402 commitment order, his status was effectively converted to that of a "detained sex offender" under article 10 of the Mental Hygiene Law ("article 10") on April 13, 2007, the date upon which that provision became effective. Def.'s L.R. 7.1(a)(3) St. (Dkt. No. 18-11) at ¶ 5. As Executive Director of the SLPC, defendant was counseled by the OMH Counsel's Office and OMH Division of Forensic Services regarding this transition. Id.
"Article 10 establishes a multi-step process that may lead to the civil commitment of some [sex] offenders and the outpatient supervision and treatment of others." State of N.Y. ex rel Harkavy v. Consilvio (" Harkavy II "), 8 N.Y.3d 645, 651 (2007). Generally, under article 10, a person nearing the end of his prison sentence, and identified by the OMH Commissioner as someone who is potentially subject to further confinement as a sex offender, is referred to a multidisciplinary team. N.Y. MHL Art. 10.05. That multidisciplinary team undertakes a review of the person's case file in order to determine whether he should be referred to the New York State Attorney General, who then may file a "sex offender civil management petition" in a New York supreme or county court. N.Y. MHL Art. 10.06; Harkavy II, 8 N.Y.3d at 651. Upon the filing of such a petition, the person then must be afforded a probable cause hearing "and, ultimately, a jury trial to determine whether the offender suffers from a mental abnormality' within the meaning of [article 10]." Harkavy II, 8 N.Y.3d at 651.
In this case, on June 27, 2007, plaintiff received notice of his entitlement to a hearing, and that his case file would be reviewed in accordance with article 10 and Harkavy II. Def.'s L.R. 7.1(a)(3) St. (Dkt. No. 18-11) at ¶¶ 19-20; Bastien Decl. Exh. C (Dkt. No. 18-6). Although plaintiff's case review began before the expiration of the original section 402 commitment order on October 5, 2007, it had not yet been completed by that date. Id. at ¶ 19. It should be noted that article 10 confers no authority upon defendant in his position as Executive Director of the facility in which plaintiff was confined at the time; only the New York State Attorney General is authorized to file a petition under that provision. See generally N.Y. MHL Art. 10. In addition, defendant was not a part of the multidisciplinary team reviewing plaintiff's case pursuant to article 10. Def.'s L.R. 7.1(a)(3) St. (Dkt. No. 18-11) at ¶ 21.
On October 10, 2007, five days after the expiration of the section 402 commitment order, an attorney with Mental Hygiene Legal Services representing the plaintiff sent defendant a letter advising that McChesney was aware that the commitment order had expired, but he nevertheless desired to remain at the SLPC as a voluntary patient, "consistent with his original decision to consent to the 402 retention order." Def.'s L.R. 7.1(a)(3) St. (Dkt. No. 18-11) at ¶ 23; Bastien Decl. Exh. B. (Dkt. No. 18-6). The letter further stated, "Please note that Mr. McChesney is making this request for voluntary admission... based on his realization that he is in need of further treatment for his maladaptive behaviors, and his desire to avoid litigation concerning his legal status while being held at SLPC." Bastien Decl. Exh. B (Dkt. No. 18-6). Attached to the letter was a "voluntary request for hospitalization" signed by the plaintiff on October 10, 2007. Bastien Decl. Exh. D (Dkt. No. 18-11).
Upon receipt of that correspondence, defendant sought advice from the OMH Counsel's Office, the New York State Attorney General, and the Division of Forensic Services Bureau of Sex Offender Treatment as to whether plaintiff's status could be converted to voluntary. Bastien Decl. (Dkt. No. 18-4) at ¶ 13. Defendant was advised that, because plaintiff was committed at the SLPC under article 10 at the time, rather than under section 402, pursuant to the Court of Appeals' decision in Harkavy II, plaintiff's status could not be converted to voluntary. Def.'s L.R. 7.1(a)(3) St. (Dkt. No. 18-11) at ¶ 25.
On November 20, 2007, plaintiff filed a petition in New York Supreme Court, St. Lawrence County, pursuant to Article 78 of the New York Civil Practice Law and Rules, seeking an order mandating that defendant release him from involuntary confinement, and allow him to apply for voluntary admission to the SLPC. Def.'s L.R. 7.1(a)(3) St. (Dkt. No. 18-11) at ¶ 28; Compl. Exh. C (Dkt. No. 1) at 9-13; Bastien Decl. Exh. E (Dkt. No. 18-9). Supreme Court Justice David Demarest granted plaintiff's petition on Friday, November 30, 2007, and ordered the OMH to either immediately release plaintiff from the SLPC to the New York State Division of Parole or permit him to apply for voluntary commitment to the SLPC, at his option. Def.'s L.R. 7.1(a)(3) St. (Dkt. No. 18-11) at ¶ 29; Compl. Exh. C (Dkt. No. 1) at 9-13; Bastien Decl. Exh. E (Dkt. No. 18-9). In light of plaintiff's consent to admission to the SLPC in April 2007, and plaintiff's intention, at least as of October 10, 2007, to remain at the SLPC voluntarily, defendant did not take steps to release plaintiff on November 30, 2007, believing that McChesney intended to stay at the SLPC on a voluntary basis. Defendant's L.R. 7.1(a)(3) St. (Dkt. No. 18-11) at ¶ 31-33. On December 3, 2007, however, defendant learned of plaintiff's desire to be released, and accordingly took immediate steps to release him in accordance with the state court order. Id. at ¶ 35. Due to the need to prepare a suitable release plan, to include arrangements for a residence, appropriate out-patient treatment, and transportation, as well as the need to obtain Division of Parole approval, plaintiff was not released to parole supervision until December 4, 2007. Id. at ¶¶ 36-39.
On December 5, 2007, New York Supreme Court Justice Robert Mulvey conducted a probable cause hearing in accordance with the New York State Attorney General's article 10 petition, and found probable cause to detain plaintiff in OMH custody pending trial. Def.'s L.R. 7.1(a)(3) St. (Dkt. No. 18-11) at ¶ 40; ...