Bailey v. Pataki, No. 10-2563 (2d Cir. 2013)

Annotate this Case
Justia Opinion Summary

Defendants appealed the district court's denial of their motion for summary judgment. Plaintiffs' commitments were effected by means of an executive-branch effort aimed at preventing the release of some "sexually violent predators." The court agreed with the district court that there was sufficient evidence in the record to support plaintiffs' procedural due process claims and therefore defeated the motion for summary judgment. The court also concluded that at the time of the Initiative, the constitutional principal that, absent some emergency or other exigent circumstance, an individual could not be involuntarily committed to a psychiatric institution without notice and a predeprivation hearing was firmly established. Because the law pertaining to the involuntary civil commitment of prisoners was firmly established, the district court properly determined that defendants should not enjoy qualified immunity.

Download PDF
10-2563 Bailey v. Pataki 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2011 4 (Argued: October 31, 2011 Decided: February 14, 2013) 5 Docket No. 10-2563 6 ------------------------------------- 7 Kenneth Bailey, 8 Plaintiff - Appellee, 9 10 Robert Trocchio, Jorge Burgos, Jr., Louis Massei, Robert Warren, Charles Brooks, 11 Consolidated Plaintiffs - Appellees, 12 v. 13 14 15 16 17 18 19 20 21 22 23 24 25 George Pataki, former Governor of New York State, Eileen Consilvio, former Executive Director, Manhattan Psychiatric Center and Kirby Forensic Psychiatric Center, John Doe, # 1, Commissioner of the New York State Department of Corrections, John Doe, # 2, Commissioner of the New York State Office of Mental Health, John Doe, # 3, Superintendent of Wyoming Correctional Facility, John Doe, # 4, Superintendent of Attica Correctional Facility, John Doe, # 5, Superintendent of the Downstate Correctional Facility, John Doe, # 6 through 20, medical personnel who examined and evaluated plaintiff pursuant to New York State Mental Hygiene Law Article 9, Glenn S. Goord, Sharon Carpinello, Michael Giambruno, James Conway, Paul Annetts, Emilia Rutigliano, Prabhakar Gumbula, Allan Wells, 26 Defendants - Appellants, 27 28 29 30 31 32 33 34 35 Jonathan Kaplan, Olusegun Bello, Mary Ann Ross, Ayodeji Somefun, Michal Kunz, William Powers, Lee E. Payant, Lawrence Farago, Luis Hernandez, Samuel Langer, Robert Dennison, Former Chairman of the New York State Board of Parole and Chief Executive Officer of the New York State Division of Parole, Jeffrey Tedford, Former Deputy Superintendent of Security at Clinton Correctional Facility, William J. Sackett, Facility Senior Parole Officer, Clinton Correctional Facility, Jean Liu, psychiatrist who evaluated plaintiff for possible civil commitment, Abadul Qayyum, Charles 1 2 Chung, Dale Artus, Former Superintendent of Clinton Correctional Facility, 3 Consolidated Defendants - Appellants. 4 ------------------------------------- 5 Before: McLAUGHLIN, SACK, and HALL, Circuit Judges. 6 This is an appeal from an order of the United States 7 District Court for the Southern District of New York (Jed S. 8 Rakoff, Judge) denying the defendants' motion for summary 9 judgment. The defendants argue that they are entitled to 10 qualified immunity on the plaintiffs' 42 U.S.C. § 1983 procedural 11 due process claims because the procedures employed in the course 12 of civil commitment proceedings against the plaintiffs complied 13 with due process requirements, and because, even if they did not, 14 a reasonable person in the defendants' position would not have 15 known that he was violating the plaintiffs' constitutional 16 rights. 17 defendants' motion for summary judgment. 18 evidence which, when viewed in the light most favorable to the 19 plaintiffs, supports their claim that they were denied their 20 right to procedural due process before being civilly committed. 21 We also agree with the district court that a reasonable official 22 in the defendants' position would have known that the process by 23 which the plaintiffs were committed did not satisfy basic 24 constitutional requirements and that the defendants are therefore 25 not entitled to qualified immunity. 26 We conclude that the district court properly denied the Affirmed. 27 2 There is sufficient 1 2 3 4 5 6 7 8 9 10 11 12 13 14 AMEER BENNO, Benno & Associates, New York, NY, (Richard Sullivan, Jeffrey Rothman, on the brief), for PlaintiffsAppellees. CECELIA C. CHANG, Assistant Solicitor General, (Barbara D. Underwood, Solicitor General, Benjamin N. Gutman, Deputy Solicitor General, on the brief), for Andrew M. Cuomo, Attorney General of the State of New York, New York, NY, for Defendants-Appellants. SACK, Circuit Judge: This appeal requires us to decide whether the civil 15 commitment of the plaintiffs following the expiration of their 16 sentences for sexually based criminal offenses constituted 17 violations of their procedural due process rights redressable 18 under 42 U.S.C. § 1983, and, if so, whether the defendants are 19 nonetheless entitled on the record before the district court to 20 summary judgment dismissing the procedural due process claims on 21 the grounds of qualified immunity. 22 The plaintiffs' commitments were effected not through 23 the state's normal civil commitment procedures, but by means of 24 an executive-branch effort aimed at preventing the release of 25 some "sexually violent predators" ("SVPs"). 26 York State at the time, Governor George E. Pataki, directed the 27 State's Office of Mental Health ("OMH") and Department of 28 Correctional Services ("DOCS") to develop a plan whereby he could 29 take executive action to implement an initiative (the "SVP 3 The Governor of New 1 Initiative" or the "Initiative") that would result in the 2 involuntary commitment of selected SVPs to state psychiatric 3 facilities after the expiration of their criminal sentences. 4 plaintiffs, who were committed pursuant to this initiative, 5 assert a variety of claims against Governor Pataki and officials 6 of OMH and DOCS. 7 The In this appeal, the defendants assert that the district 8 court erred when it denied their motion for summary judgment on 9 the plaintiffs' procedural due process claims, concluding that 10 the defendants are not entitled to qualified immunity. 11 plaintiffs' claims for denial of procedural due process are 12 premised on the allegation that they were committed pursuant to 13 the SVP Initiative without the benefit of notice or an 14 opportunity for a hearing prior to their commitment. 15 The We agree with the district court that there is 16 sufficient evidence in the record to support the plaintiffs' 17 procedural due process claims and therefore defeat the motion for 18 summary judgment. 19 Initiative, the constitutional principle that, absent some 20 emergency or other exigent circumstance, an individual cannot be 21 involuntarily committed to a psychiatric institution without 22 notice and a predeprivation hearing was firmly established. 23 Because the law pertaining to the involuntary civil commitment of 24 prisoners was firmly established, the district court properly 25 determined that the defendants should not enjoy qualified 26 immunity. We also conclude that at the time of the 4 1 BACKGROUND 2 The SVP Initiative 3 In June 2005, a recently-paroled sex offender murdered 4 a woman in the parking lot of the Galleria Mall in White Plains, 5 New York. 6 legislation providing additional avenues for the commitment of 7 dangerous sex offenders,1 but after the murder, "momentum to do 8 something around [sic.] dangerous sex offenders increased," 9 according to associate director of OMH's Forensic Services Governor Pataki had previously attempted to enact 10 Division, Richard Miraglia, who participated in the creation and 11 implementation of the SVP Initiative. 12 Nov. 24, 2009 ("Miraglia Dep."), at 62; Joint App'x at 147. 13 an October 2005 press release, Governor Pataki's office explained 14 that during this time period he "directed that every sexually 15 violent predator (SVP) in State custody be evaluated for 16 involuntary civil commitment before being released from prison. 17 He directed [OMH] and [DOCS] to push the envelope of the State's 18 existing involuntary commitment law because he couldn't wait any 19 longer for the Assembly Leadership to bring his legislation to 1 Dep. of Richard Miraglia, In Beginning in 1998, shortly before the end of his first term in office, Governor Pataki tried to convince the New York State legislature to pass sex offender civil commitment legislation, but, he said in a televised interview, the state Assembly leadership would not permit a floor vote. Tr. of Interview of George E. Pataki by Bill O'Reilly, FOXNews.com, Nov. 18, 2005; Joint App'x at 274. Those opposing the measure, the Governor said, were making "the same old argument. There are those who would rather have 50 sexual predators out on the street than one who they believe might have been wrongfully confined." Tr. of Interview of George E. Pataki by Glenn Beck, July 16, 2007; Joint App'x at 590. 5 1 the floor for a vote." 2 Chamber, Governor: U.S. Dep t of Justice Adds N.Y. to Nat l Sex 3 Offender Public Registry Web Site (Oct. 24, 2005); Joint App'x at 4 215. 5 Press Release, N.Y. State Executive In order to put the governor's policy into effect, OMH 6 officials began engaging in daily discussions about how to 7 implement a civil commitment initiative. 8 the "general tenor" of these meetings reflected "concern about 9 dangerous repeat sex offenders being released to the community" Miraglia testified that 10 and "some frustration about legislative inaction." 11 at 48; Joint App'x at 136. 12 using either Correction Law § 402 or Mental Hygiene Law § 9.27 13 for this purpose. 14 Miraglia Dep. Discussions eventually centered on The two statutes are substantially different. Section 9.27 of the Mental Hygiene Law ("MHL"), 15 codified in Article 9 of the MHL and entitled "Involuntary 16 admission on medical certification," allows the director of a 17 hospital to accept any patient "alleged to be mentally ill and in 18 need of involuntary care and treatment upon the certificates of 19 two examining physicians." 20 also receive a sworn application explaining why the patient needs 21 mental health treatment. 22 hospital, a member of the hospital's psychiatric staff is 23 required to examine him and confirm that he should be admitted. 24 MHL § 9.27(e). 25 patient, or any other person the patient has designated, be given 26 notice of the involuntary admission within five days of MHL § 9.27(a). Id. The director must After the patient arrives at the The law requires that the nearest relative of the 6 1 admission. 2 patient or a friend or relative can request a hearing on the 3 involuntary admission, which is required to be held within five 4 days of receipt by the hospital director of notice of the 5 request. 6 order issued, or if the patient does not consent to the 7 admission, the hospital director is required to seek a court 8 order within sixty days of the patient's involuntary admission if 9 the director wishes to pursue the matter. 10 MHL § 9.29(b). MHL § 9.31(a). Within sixty days of admission, the If no hearing has been held or court MHL § 9.33(a). Correction Law § 402 is entitled "Commitment of 11 mentally ill inmates." Under that law, if a staff physician at a 12 prison informs the prison superintendent that an inmate is 13 mentally ill, the superintendent asks a "judge of the county 14 court or justice of the supreme court in the county" to appoint 15 two physicians to examine the inmate. 16 If both physicians conclude that hospitalization is appropriate, 17 they must produce certificates to that effect. 18 superintendent is then required to apply to the court for a 19 commitment order, and personally serve notice on the inmate and 20 his or her closest relative or, if relatives are unknown or not 21 within the state, "any known friend," five days prior to the 22 commitment. 23 Services must then inform the inmate (or, in appropriate cases, 24 others concerned with the inmate's welfare) of "the procedures 25 for placement in a hospital and of the inmate's right to have a 26 hearing, to have judicial review with a right to a jury trial, to Correction Law § 402(3). 7 Correction Law § 402(1). Id. The The Mental Hygiene Legal 1 be represented by counsel and to seek an independent medical 2 opinion." 3 before a judge prior to any transfer to a psychiatric hospital. 4 Correction Law § 402(5). 5 402 may only be bypassed where admission to a hospital is sought 6 on an emergency basis. 7 Id. The inmate is entitled to request a hearing The procedural protections in section Correction Law § 402(9). The state officials dealing with the matter ultimately 8 decided that MHL § 9.27 would be the appropriate law through 9 which to implement the SVP Initiative. The parties disagree as 10 to whether MHL § 9.27 had previously been utilized for the civil 11 commitment of inmates. 12 Correctional Facility between 1976 and 2005, testified that use 13 of Correction Law § 402 was standard procedure for the civil 14 commitment of prisoners, and that he was unfamiliar with MHL § 15 9.27. 16 43-44; Joint App'x at 1200-01. 17 executive director of the Central New York Psychiatric Center, an 18 OMH facility, similarly testified that prior to the SVP 19 Initiative, inmates were transferred from DOCS to OMH facilities 20 pursuant to the Correction Law, not the Mental Hygiene Law. 21 of Hal E. Smith, November 11, 2009 ("Smith Dep."), at 162-63, 22 166, 169; Joint App'x at 1256-59. 23 proceeding, the state Attorney General represented that MHL 24 § 9.27 had been used five times between 2003 and 2005 to civilly 25 commit prisoners. 26 3d. 851, 856, 809 N.Y.S.2d 836, 839-40 (Sup. Ct. 2005), rev'd, 29 Scott Clair, who worked for OMH at Attica Dep. of Scott Clair, January 14, 2010 ("Clair Dep."), at Hal Smith, who served as Dep. In a related state court State ex rel. Harkavy v. Consilvio, 10 Misc. 8 1 A.D.3d 221, 812 N.Y.S.2d 496 (1st Dep't), rev'd, 7 N.Y.3d 607, 2 859 N.E.2d 508, 825 N.Y.S.2d 702 (2006). 3 Sharon Carpinello, Commissioner of the OMH, presented 4 the proposed SVP Initiative, utilizing MHL § 9.27, to Governor 5 Pataki. 6 based on upcoming release dates. 7 from those who had committed a violent offense as defined by New 8 York Penal Law § 70.02, and a sex offense as defined by Penal Law 9 § 130, as well as from another list of inmates who had committed The proposal called for a pool of SVPs to be identified The pool of inmates was drawn 10 felonies involving some sexual motivation. According to Dawne 11 Amsler, Associate Director of OMH's Bureau of Forensic Research, 12 this constituted a departure from prior practice. 13 MHL § 9.27 applied to "individuals who have a mental illness that 14 makes them dangerous to themselves or others," and inmates who 15 did not fit that criteria were evaluated prior to their release 16 pursuant only to Correction Law § 402. 17 Nov. 10, 2009 ("Amsler Dep."), at 21, 27; Joint App'x at 502-03. 18 Amsler testified that "individuals who were already on the mental 19 health caseload at OMH and receiving fairly intensive services 20 were evaluated at the end of their [sentences] regardless of the 21 crime they committed and perhaps committed if deemed necessary. 22 This changed [after implementation of the Initiative] in that all 23 sex offenders regardless of whether or not they were on caseloads 24 were evaluated." Previously, Dep. of Dawne Amsler, Id. at 36; Joint App'x at 506. 25 Under the Initiative, the identified inmates would be 26 subject to a review of their criminal histories, and then to an 9 1 examination by two physicians, who would determine whether they 2 posed a risk to the public, or suffered from a mental illness, 3 and therefore needed inpatient care and treatment. 4 physicians recommended civil commitment, the inmate would be 5 transferred to a psychiatric center and examined by a 6 psychiatrist to confirm the diagnosis. 7 facility, the inmate would begin undergoing a specialized course 8 of treatment. 9 If the Once admitted to the Implementation of the Initiative began almost 10 immediately. 11 identified SVPs scheduled for release and made the presentence 12 reports for those inmates available to OMH. 13 relevant information on the inmates, including their "OMH level," 14 which did not include a specific diagnosis, and a description of 15 the offense of conviction. 16 2006, Amsler personally compiled the information about the 17 identified inmates and provided that information to OMH 18 personnel. 19 "FPMS/DMHIS" overview and a "Static 99" evaluation. 20 Statement of Uncontested Material Facts Pursuant to Local Rule 21 56.1, at ¶ 85; Joint App'x 87, citing Amsler Dep.2 22 Under Defendant Glenn Goord's direction, DOCS OMH then compiled Between September 2005 and January She completed two documents for each inmate, a Pls.' Every inmate identified by DOCS as a potential SVP was 23 evaluated for civil commitment by OMH. 24 submit to the evaluation was subject to disciplinary action and 2 Any inmate who refused to Amsler did not know what the initials "FPMS" stood for. Amsler Dep. at 122; Joint App'x at 546. 10 1 refusal could have constituted a parole violation. 2 Superintendent then applied for the civil commitment of SVP 3 inmates who had been deemed to meet the criteria for civil 4 commitment and had been examined by two physicians who had so 5 certified. 6 would be transferred or subject to a civil commitment evaluation. 7 The DOCS The inmates received no advance notice that they While the procedures for commitment used in the SVP 8 Initiative tracked MHL § 9.27, the standard for commitment was 9 different from that ordinarily used under the provision, which 10 caused concern among those charged with implementing the 11 Initiative.3 12 develop the techniques for assessing whether SVPs qualified for 13 commitment under the Initiative. 14 is a specialty . . . that heretofore [had] not been within the 15 OMH menu of services. . . . 16 capacity to understand what . . . assessment techniques would be 17 required to identify those at highest risk for sexual 18 recidivism." Miraglia testified that officials had only days to "[T]he sex offender assessment So we needed to develop that Miraglia Dep. at 69; Joint App'x at 154. 19 One person involved with the Initiative wrote in an e- 20 mail under a heading "Operational Concerns and Challenges," that 3 The standard itself is not at issue in this appeal. The plaintiffs' substantive due process claim challenging whether the standard for commitment utilized was appropriate is not before us. See Bailey v. Pataki, No. 08 Civ. 8563, 2010 WL 4237071, at *4, 2010 U.S. Dist. LEXIS 113766, at *13 (S.D.N.Y. Oct. 26, 2010)(denying defendants' motion for summary judgment on the substantive due process claims). The uncertainty regarding the standard used is nevertheless relevant to the procedural due process analysis because it compounds the risk of an erroneous deprivation of a liberty interest. 11 1 "[e]xpertise in the treatment of sexual offenders is not widely 2 available among current OMH staff, and the majority of clinicians 3 have not had any experience with this population. 4 clinicians who are unfamiliar with the sexual offender population 5 to apply civil commitment criteria to these individuals may be 6 difficult." 7 (July 29, 2005, 6:25 p.m.); Joint App'x at 593. 8 Forensic Unit Chief of the mental health unit at Attica, 9 explained that the "criteria" utilized to evaluate the inmates Training Email from Robyn Katz to Carpinello, Miraglia et al. Scott Clair, a 10 identified as SVPs was "dangerousness to self or others." Clair 11 Dep. at 46; Joint App'x at 1203. 12 same criteria, but, Clair testified, "[i]nmates that went on 402 13 were clinically decompensated to the point where they were 14 dangerous to self or others at that exact time," while those 15 under the SVP Initiative were evaluated "based on dangerousness 16 to the community based on the risk assessment and their 17 diagnosis." Correction Law § 402 used the Id. at 47; Joint App'x 1204. 18 Another OMH physician explained that she was "asked to 19 make a prediction of the risk of possible recidivism to keep the 20 community safe," whereas the Article 9 standard, by contrast, "is 21 based on if the individual is harmful to himself and others and 22 that if this is deemed the case then the certification is good 23 for a period of 72 hours." 24 2009, at 437-39; Joint App'x at 1671-73. Dep. of Mary Ann Ross, Sept. 24, 25 The SVP Initiative's evaluation was based in part on 26 the Static 99 form, which estimated an inmate's risk of future 12 1 recidivism in five, ten, and fifteen years, and which had not 2 previously been used in the State's civil commitment process. 3 When the Initiative began, most of the OMH physicians did not 4 have any experience using the Static 99 form, and some were "not 5 comfortable" using it. Smith Dep. at 157; Joint App'x at 1255. 6 The Plaintiffs' Commitment 7 Plaintiff Kenneth Bailey was among the first to be 8 evaluated pursuant to the new Initiative. 9 plaintiffs contend that had it not been for its implementation, 10 they would not have been evaluated for civil commitment at all. 11 Bailey had been convicted multiple times for sexual abuse of 12 children and has admitted to molesting twenty-three girls. 13 most recent conviction stemmed from the repeated sexual abuse of 14 his daughter for which, in 1994, he was convicted and sentenced 15 to six to twelve years imprisonment. 16 September 28, 2005 -- less than two weeks before he was scheduled 17 for release -- Bailey was transferred from Wyoming Correctional 18 Facility to Attica Correctional Facility. 19 scheduled release, two OMH physicians evaluated Bailey for 20 involuntary civil commitment pursuant to the Initiative. 21 physicians produced written certificates stating that Bailey 22 qualified for civil commitment. 23 He and the other His Some eleven years later, on Three days before his Both When Bailey's sentence expired, the Superintendent of 24 Attica applied for Bailey's involuntary commitment and DOCS 25 transported Bailey to the Manhattan Psychiatric Center ("MPC") 26 the same day. Bailey did not request a hearing following his 13 1 commitment because he apparently thought he would be at MPC for 2 only a few weeks or months. 3 that he was a psychiatric patient there. 4 proceedings for the other plaintiffs in this action followed 5 similar patterns. 6 448-49 (S.D.N.Y. 2010). 7 He contends that he was not aware The commitment See Bailey v. Pataki, 722 F. Supp. 2d 443, The plaintiffs petitioned for habeas corpus relief in 8 state court, arguing that the use of MHL § 9.27, rather than 9 Correction Law § 402, to civilly commit them was illegal. State 10 ex rel. Harkavy v. Consilvio, 7 N.Y.3d 607, 859 N.E.2d 508, 825 11 N.Y.S.2d 702 (2006). 12 commented: "[W]e understand how in an attempt to protect the 13 community from violent sexual predators, the State proceeded 14 under the Mental Hygiene Law." 15 that "because inmates who are incarcerated do not pose an 16 immediate threat to the community, there should be ample time to 17 proceed under the Correction Law." 18 ordered that each civilly committed individual be provided "an 19 immediate retention hearing pursuant to article 9," and directed 20 that future proceedings against inmates proceed under Correction 21 Law § 402 "with all its attendant procedural requirements 22 including court supervision, pretransfer notice and an 23 opportunity to be heard within a reasonable period of time prior 24 to the inmate's proposed release date." 25 decide on the constitutionality of applying Article 9 to 26 prisoners. In Harkavy, the New York Court of Appeals The court concluded, however, Id. at 614. Id. The court The court did not In a concurrence by Judge Robert S. Smith, however, 14 1 he cautioned that it "would raise serious constitutional 2 problems" because "Petitioners had all been in prison for years 3 before the State sought to commit them civilly. 4 unforseen emergency required their confinement in a mental 5 hospital." No sudden, Id. at 615. 6 The District Court Opinion 7 In October 2008, the plaintiffs filed this action 8 alleging claims under 42 U.S.C. § 1983 for violations of their 9 Fourteenth Amendment rights to procedural and substantive due 10 process and to equal protection, and their Fourth Amendment right 11 against unreasonable seizure, under 42 U.S.C. § 1985(3) for 12 conspiracy, and under various provisions of New York State law. 13 On March 31, 2010, both sides moved for summary judgment. 14 district court (Jed S. Rakoff, Judge) denied the plaintiffs' 15 motion for summary judgment in full, and granted in part and 16 denied in part the defendants' motion for summary judgment.4 17 Relevant to this appeal, the district court rejected the 18 defendants' argument that they are entitled to qualified immunity 19 on the plaintiffs' procedural due process claim. The 20 In its opinion, the district court first addressed 21 whether the plaintiffs had made out a procedural due process 22 claim for their "involuntar[y] commit[ment] to civil confinement 23 without advance written notice, an evaluation by court-appointed 4 The district court entered a separate opinion detailing its decision on all issues other than qualified immunity. See Bailey, 2010 WL 4237071, at *1, 2010 U.S. Dist. LEXIS 113766, at *3-*4 (explaining the different opinions and orders issued). 15 1 physicians, and . . . a predeprivation judicial hearing." 2 Bailey, 722 F. Supp. 2d at 447. 3 confined prisoner "presents no immediate danger to the community, 4 [therefore] full due process must be accorded before he can be 5 transferred, upon completion of his sentence, to involuntary 6 civil commitment." 7 445 U.S. 480 (1980), the court determined that such process must 8 include notice and "a predeprivation adversary hearing . . . at 9 which the prisoner can see the evidence for the commitment and be The court explained that a Id. at 447-48. Relying on Vitek v. Jones, 10 given an opportunity to be heard in person, as well as present 11 testimony and engage in cross-examination of the state's 12 witnesses." Bailey, 722 F. Supp. 2d at 448. 13 The district court then examined whether the process it 14 had determined was constitutionally required had been afforded to 15 the plaintiffs in this case. 16 civil confinement did not remotely comport with constitutional 17 requirements." 18 It concluded that the "plaintiffs' Id. at 449. Having thus decided that, viewed in the light most 19 favorable to the plaintiffs, the evidence supported the due 20 process claims, the district court then considered whether the 21 defendants were entitled to qualified immunity because the right 22 at issue was not "clearly established" when the Initiative was 23 implemented. 24 established at the relevant time that in the absence of any 25 "immediate danger to society," a predeprivation hearing was 26 required before civilly committing an individual and that this The court determined that it was clearly 16 1 requirement was "so obvious that no reasonable defendant official 2 could have failed to miss it." Id. at 450-51. 3 The district court emphasized that Correction Law 4 § 402, which specifically dealt with commitment of inmates, 5 required a predeprivation hearing. 6 finally, that: 7 8 9 10 11 12 13 14 15 16 17 18 Id. at 451. The court noted, [I]t is not irrelevant that the plaintiffs here have advanced competent evidence from which a jury could conclude that the decision to deprive SVP detainees of a predeprivation hearing by replacing the procedures of directly applicable Correction Law § 402 with those of seemingly inapplicable MHL § 9.27 was a deliberate decision taken for political reasons. To deprive plaintiffs of their constitutional rights for political gain can never be reasonable. Id. at 451-52. 19 The defendants appeal. 20 DISCUSSION 21 We review de novo a district court's denial of summary 22 judgment on qualified immunity grounds, and construe all evidence 23 and draw all reasonable inferences in the non-moving party's 24 favor. 25 Summary judgment is appropriate where "there is no genuine 26 dispute as to any material fact and the movant is entitled to 27 judgment as a matter of law." Amore v. Novarro, 624 F.3d 522, 529 (2d Cir. 2010). FED. R. CIV. P. 56(a). 28 I. Procedural Due Process Claim 29 The plaintiffs allege that they were denied their 30 Fourteenth Amendment right to procedural due process when they 31 were committed to a psychiatric institution without the benefit 17 1 of notice, psychiatric examination by court-appointed physicians, 2 or a judicial hearing prior to their commitment. 3 state a claim under 42 U.S.C. § 1983 for denial of procedural due 4 process in the context of this litigation, the plaintiffs are 5 required to demonstrate that they have a protected liberty 6 interest in not being involuntarily committed to a psychiatric 7 institution and that they were deprived of that interest without 8 due process of law. 9 (2d Cir. 2000). 10 In order to See Tellier v. Fields, 280 F.3d 69, 79-80 On appeal, the defendants urge that the district court 11 erred in reading Vitek v. Jones, 445 U.S. 480 (1980), as 12 mandating especially stringent due process procedures for 13 prisoners, arguing that while notice and a hearing are generally 14 required, nothing in Vitek prohibits brief periods of prehearing 15 commitment if a timely hearing is later offered. 16 insist that courts have upheld identical prehearing commitments 17 of prisoners that the district court concluded did not satisfy 18 due process here, and that in any event the procedures employed 19 did indeed comply with due process requirements. 20 court looked to the Supreme Court's decision in Vitek in 21 determining what procedural protections are required before an 22 inmate can be civilly committed without his consent consistent 23 with due process standards. 24 The court read Vitek to require notice, a predeprivation 25 adversarial hearing, and a written statement by the decision The defendants The district Bailey, 722 F. Supp. 2d at 447-48. 18 1 maker disclosing the reasons for the inmate's commitment. 2 448. 3 Id. at Vitek addressed an as-applied challenge to the 4 constitutionality of a Nebraska statute that provided for the 5 transfer of an inmate to a psychiatric facility at the direction 6 of the State's Director of Correctional Services if a 7 psychologist or psychiatrist concluded that the prisoner 8 "'suffers from a mental disease or defect'" that the prisoner's 9 current facility could not properly treat. Vitek, 445 U.S. at 10 483. Such a transfer remained valid until the expiration of the 11 prisoner's sentence, at which point civil commitment proceedings 12 were required prior to continued confinement. 13 Id. at 483-84. The plaintiff in Vitek was an inmate who had been 14 transferred to a psychiatric facility after setting his mattress 15 on fire while in solitary confinement. 16 Court considered whether the transfer of a prisoner to a state 17 mental hospital implicated a liberty interest triggering due 18 process protection, and concluded that the plaintiff's "objective 19 expectation" based on state law and practice that he would not be 20 transferred to a mental hospital if his condition could be 21 treated in prison did create a liberty interest requiring 22 "appropriate procedures" prior to its deprivation. 23 90. 24 transfer to a mental hospital" and the "mandatory behavior 25 modification" treatment the prisoner would undergo once at that 26 hospital. Id. at 484. The Vitek Id. at 489- The Court emphasized the "stigmatizing consequences of a Id. at 494. 19 1 The district court in Vitek identified seven safeguards 2 it concluded were required to protect the plaintiff's liberty 3 interest. 4 pretransfer hearing at which the prisoner could present and 5 cross-examine witnesses, and the right to counsel. 6 494-95. 7 Among them were pretransfer notice to the prisoner, a See id. at In considering these requirements, the Supreme Court 8 explained that while the State has a substantial interest in 9 "segregating and treating mentally ill patients," "[t]he interest 10 of the prisoner in not being arbitrarily classified as mentally 11 ill and subjected to unwelcome treatment is also powerful," and 12 the "risk of error . . . is substantial enough to warrant 13 appropriate procedural safeguards against error." 14 The Court acknowledged that the inquiry into whether a prisoner 15 should be placed in a psychiatric facility is "essentially 16 medical," but concluded that "[t]he medical nature of the 17 inquiry . . . does not justify dispensing with due process 18 requirements. 19 psychiatric diagnoses that justify the requirement of adversary 20 hearings." 21 Court concluded that the procedures prescribed by the district 22 court were "appropriate in the circumstances present . . . ." 23 Id. at 496.5 Id. at 495. It is precisely the subtleties and nuances of Id. (quotation marks and citation omitted). 5 The The requirement of legal counsel was endorsed by only a plurality of the court. Justice Powell wrote in a concurrence that although "qualified and independent assistance" must be provided, it need not take the form of a "licensed attorney." Vitek, 445 U.S. at 497 (Powell, J., concurring). 20 1 Vitek is plainly relevant to this case. It confirms 2 the plaintiffs' contention that a prisoner has a liberty interest 3 in the essential nature of his confinement, and that this 4 interest must be safeguarded with appropriate procedures. 5 does not automatically follow from the Vitek Court's endorsement 6 of the procedures mandated by the district court in that case 7 that the same process is required in every case. 8 (concluding that the procedures set forth by the district court 9 were "appropriate in the circumstances present here." (emphasis But it See id. 10 added)). 11 subtleties and nuances of psychiatric diagnoses that justify the 12 requirement of adversary hearings," id. at 495, similarly stops 13 short of identifying the circumstances in which an adversary 14 hearing must be held or what that hearing should entail. 15 The Court's acknowledgment that it is "precisely the Indeed, the facts and legal posture of Vitek differ 16 significantly from those before us. 17 confinement in a psychiatric institution for the duration of his 18 prison sentence based on the opinion of a single doctor, with no 19 opportunity for an additional hearing. 20 in Vitek, therefore, provided fewer safeguards than were offered 21 to the plaintiffs here. 22 discussed whether the availability of a postdeprivation hearing 23 negates the need for a predeprivation hearing, its applicability 24 to this case is limited. 25 26 The plaintiff in Vitek faced The procedures at issue And because the Vitek Court never The Supreme Court's decision in Zinermon v. Burch, 494 U.S. 113 (1990), however, does offer guidance as to when a 21 1 postdeprivation hearing would survive constitutional scrutiny. 2 There, the Court considered the case of a patient admitted to a 3 state mental health hospital after completing voluntary admission 4 forms. 5 schizophrenic and had been unable to give informed consent to his 6 admission. 7 the procedural safeguards required for involuntary commitment, 8 including a hearing. The patient later alleged that he was a paranoid The defendants, he asserted, should have afforded him Id. at 123-24. 9 Quoting Mathews v. Eldrige, 424 U.S. 319, 335 (1976), 10 the Court described the factors to be considered in determining 11 what procedural protections are necessary in a particular case: 12 13 14 15 16 17 18 19 20 21 22 23 "First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Zinermon, 494 U.S. at 127. 24 The Zinermon Court observed that, applying the Mathews 25 test, it "usually has held that the Constitution requires some 26 kind of hearing before the State deprives a person of liberty or 27 property." 28 continued, a postdeprivation hearing might satisfy due process 29 where a predeprivation hearing is "unduly burdensome in 30 proportion to the liberty interest at stake" or "where the State 31 is truly unable to anticipate and prevent a random deprivation of Id. (emphasis in original). 22 But, the Court 1 a liberty interest." 2 can provide a predeprivation hearing," however, "it generally 3 must do so regardless of the adequacy of a postdeprivation . . . 4 remedy." 5 Id. at 132. "[W]here the State feasibly Id. The Court concluded that the defendants could be liable 6 to the plaintiff under his section 1983 claim for deprivation of 7 his procedural due process rights because it was foreseeable that 8 a mentally ill patient incompetent to give informed consent would 9 nonetheless sign a voluntary admission form and because the Court 10 could not "say that predeprivation process was impossible" under 11 the circumstances. 12 Id. at 136-37. The deprivation here seems to us to have been as 13 foreseeable as it was in Zinermon. 14 deprivation here occurred at a "predictable point," see id. at 15 136 -- the expiration of the inmate's sentence. 16 occurred here was random or unanticipated so as to prevent the 17 State from planning for and then providing predeprivation 18 process. 19 that predeprivation procedural protections were "unduly 20 burdensome" in comparison with the substantial liberty interest 21 at stake. 22 As in that case, the Nothing that Nor, as we discuss below, can it reasonably be argued Application of the Mathews balancing test supports the 23 conclusion that predeprivation process was required here and that 24 postdeprivation remedies were constitutionally insufficient. 25 Mathews, 424 U.S. at 334-35. 26 interest" aspect of the standard, the defendants acknowledge that See With respect to the "private 23 1 "involuntary commitment is a significant curtailment of liberty," 2 but argue that because of the "extremely brief" period of 3 potential prehearing commitment, the safeguards required are not 4 as significant as they would otherwise be. 5 We think there can be no serious doubt that the liberty interests 6 implicated here are of a high order. 7 plaintiffs' physical freedoms curtailed, but they were also 8 subject to specialized mental health treatment. 9 included the use of a "penile plethysmograph," which the First Appellants' Br. 30. Not only were the This treatment 10 Circuit has explained is a "strain gauge strapped to an 11 individual's genitals while sexually explicit pictures are 12 displayed in an effort to determine his sexual arousal patterns." 13 Harrington v. Almy, 977 F.2d 37, 44 (1st Cir. 1992). 14 imagine that to be something less than a dignity inspiring 15 experience. 16 One can Classification as an SVP also constitutes a fundamental 17 change in an inmate's status and privileges. An SVP committed to 18 a psychiatric hospital cannot gain release until he has secured 19 either employment or vocational training, despite the fact that 20 any potential employer must be notified of his SVP status. 21 SVP also suffers the stigma of the label itself, which connotes a 22 likelihood of recidivist sexually violent behavior, and of a 23 diagnosis of mental illness. 24 SVPs have already been convicted of sex offenses carrying 25 significant stigma, that the additional stigma is only 26 incremental does not render it illusory. An And although it may be true that 24 1 As Vitek confirmed, a prisoner - even one convicted of 2 an atrocious crime -- maintains a liberty interest in the 3 conditions relating to the essential nature of his confinement. 4 Here, not only did those committed pursuant to the SVP Initiative 5 face a material change in the nature of their confinement, but 6 their confinement was also prolonged. 7 With regard to the second factor in the Mathews test -- 8 "risk of an erroneous deprivation of such interest through the 9 procedures used," Zinermon, 494 U.S. at 127 -- the defendants 10 insist that the risk of such an erroneous deprivation during the 11 five-day period before a committed SVP is entitled to a hearing 12 is "slight" because of the safeguards provided in Article 9. 13 Appellants' Br. 30. 14 force. 15 risk of an erroneous deprivation. 16 medical professionals were required to sign off on every 17 commitment. 18 percent of those evaluated under the SVP Initiative were 19 ultimately committed. 20 The defendants' argument is not without There were, on paper, procedures intended to mitigate the For example, three separate And, as the defendants point out, fewer than 20 Despite these safeguards, several factors increased the 21 risk that an inmate would be erroneously committed under the 22 Initiative. 23 prisoners were unfamiliar with the standards for assessing sex 24 offenders and the likelihood of recidivism, and were evaluating 25 them using a novel standard and new tools, such as the Static 99 26 form, with which they had no experience. The OMH physicians charged with examining the 25 1 Although it may be dangerous to overstate the 2 importance of the fact that the Initiative was quickly put into 3 place in a politically charged environment, it is difficult to 4 ignore (as the district court did not). 5 of the Initiative and the lack of training or formal procedures, 6 coupled with significant political pressure, the risk of error 7 seems to us to have been enhanced. 8 York, 72 F.3d 1051, 1062 (2d Cir. 1995) ("Though we agree with 9 the district court that due process does not require a guarantee 10 that a physician's assessment of the likelihood of serious harm 11 be correct, . . . due process does demand that the decision to 12 order an involuntary emergency commitment be made in accordance 13 with a standard that promises some reasonable degree of 14 accuracy."). 15 lessened this risk. 16 hearing prior to their commitments, the decision as to whether to 17 commit would have been undertaken by a neutral decisionmaker with 18 the benefit of an adversarial hearing. 19 Because of the infancy See Rodriguez v. City of New Additional safeguards would unquestionably have If the plaintiffs were afforded notice and a The defendants argue that the availability of a 20 postdeprivation hearing mitigated the risk of erroneous 21 deprivation. 22 requested a hearing following his commitment. 23 true, the plaintiffs' filing of a habeas corpus petition in New 24 York State court and Bailey's allegation that he did not know 25 that he could request such a hearing, suggest that the They point out that none of the plaintiffs 26 Although this is 1 availability and contours of the process likely were not clear to 2 the plaintiffs.6 With respect to the third part of the Mathews test -- 3 4 the Government's interest, including the function involved and 5 the fiscal and administrative burdens that the additional or 6 substitute procedural requirement would entail, Zinermon, 494 7 U.S. at 127 -- the defendants urge that predeprivation hearings 8 would have imposed a substantial burden on the State. 9 that during the first month of the Initiative, eighty prisoners 10 were examined, twenty-one of whom were eventually committed, and 11 that many of these prisoners were on the verge of being released. 12 Because the SVP Initiative had begun only weeks before some of 13 the plaintiffs were scheduled for release, the defendants 14 contend, predeprivation hearings, in addition to conducting 15 psychiatric evaluations, would have diverted scarce resources 16 from the treatment of mentally ill inmates. 17 We disagree. They note Under the provisions of Article 9, the 18 defendants should have been prepared to present their case for 19 civil commitment at a hearing on five-days notice at any point 20 after a civil commitment was effected. 21 they could not have prepared for such a hearing in advance of 22 commitment without incurring substantial additional expense or 23 effort. It does not follow that The sole reason that holding predeprivation hearings 6 The record otherwise contains little detail about what the plaintiffs understood regarding the availability of postdeprivation hearings. 27 1 would have unduly burdened the State is that a decision was made 2 to create and implement the Initiative on a compressed timeline; 3 any exceptional burden that the State faced was of its own 4 making. 5 favor - if it did, due process requirements could be curtailed 6 by delaying the establishment of proper procedures until they 7 became "too burdensome." 8 9 We do not think this fact should work in the defendants' Construing the evidence in the light most favorable to the plaintiffs, the facts alleged, if proven, would establish 10 that the defendants violated the plaintiffs' rights to procedural 11 due process. 12 mischaracterized Vitek's dicta as holding, we find no support for 13 the defendants' contention that a predeprivation hearing was not 14 required in the absence of emergent circumstances. 15 test brings the defendants' violation into sharp relief: the 16 private interest at stake was significant; the risk of erroneous 17 deprivation was pronounced due to the lack of notice or an 18 adversary proceeding, the politically charged environment, and 19 the novel aspects of this initiative, and that risk would have 20 been reduced by additional procedures; and the burden to the 21 State would have been no greater predeprivation than 22 postdeprivation were it not for the State's own actions in 23 scrambling to implement the Initiative. Even if it may be said that the district court 28 The Mathews 1 II. Qualified Immunity 2 The defendants are entitled to qualified immunity if 3 they can establish either that (1) "a constitutional right was 4 [not] violated" or (2) "the right was [not] clearly established." 5 Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part on 6 other grounds by Pearson v. Callahan, 555 U.S. 223 (2009).7 7 part of this inquiry, the Court considers whether "it would be 8 clear to a reasonable officer that his conduct was unlawful in 9 the situation he confronted."8 As a Id. at 202. 7 This was the test applied by the district court: The "defendants are entitled to qualified immunity if they show either that plaintiffs have failed to make out a violation of constitutional right or if the right at issue was not clearly established at the time of the alleged violation." Bailey, 722 F. Supp. 2d at 449. 8 There is some tension in our Circuit's cases as to whether the qualified immunity standard is of two or three parts, and whether the "reasonable officer" inquiry is part of step two -- the "clearly established" prong -- or whether it is a separate, third step in the analysis. Compare, e.g., Okin v. Vill. of Cornwall-On-Hudson Police Dep't, 577 F.3d 415, 433 (2d Cir. 2009)(reciting two-part test and stating that "'[t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted'" (quoting Saucier, 533 U.S. at 202)), with X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 65-66 (2d Cir. 1999)(a governmental official is entitled to qualified immunity "in any of three circumstances": (1) if the charged conduct does not violate a constitutional right; (2) if the constitutional right "was not clearly established at the time of the conduct"; or (3) "if the defendant's action was objectively legally reasonable in light of the legal rules that were clearly established at the time it was taken" (quotation marks, brackets, and ellipses omitted)); Taravella v. Town of Wolcott, 599 F.3d 129, 133-34 (2d Cir. 2010)(describing qualified immunity analysis as "a two-part inquiry" but adding that "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"). 29 1 Qualified immunity is an affirmative defense and the 2 burden is on the defendant-official to establish it on a motion 3 for summary judgment. 4 111, 123 (2d Cir. 1996). 5 is sufficient evidence in the record to support, as a matter of 6 law, the plaintiffs' procedural due process claims. 7 turn to the question of whether the right at issue was clearly 8 established. 9 the right was defined with reasonable clarity, (2) the Supreme 10 Court or the Second Circuit has confirmed the existence of the 11 right, and (3) a reasonable defendant would have understood from 12 the existing law that his conduct was unlawful. 13 356 F.3d 481, 490 (2d Cir. 2004). 14 where the law was established in three other circuits and the 15 decisions of our own Court foreshadowed the right, the law was 16 sufficiently "well established" that its violation stripped the 17 defendant of his immunity. 18 79 (2d Cir. 1997). 19 See In re State Police Litig., 88 F.3d We have already determined that there We therefore In answering that question, we look to whether (1) Luna v. Pico, We have further held that Varrone v. Bilotti, 123 F.3d 75, 78- For a right to be clearly established, it is not 20 necessary that courts have agreed "upon the precise formulation 21 of the standard." 22 instance, that various courts have agreed that certain conduct is 23 a constitutional violation under facts not distinguishable in a Saucier, 533 U.S. at 202. "Assuming, for This is not a debate we need enter inasmuch as we conclude that qualified immunity is not available to the defendants irrespective of which way the test is articulated. 30 1 fair way from the facts presented in the case at hand, the 2 [defendants] would not be entitled to qualified immunity based 3 simply on the argument that courts had not agreed on one verbal 4 formulation of the controlling standard." 5 Id. at 202-03. The Supreme Court stated more than twenty years ago in 6 Zinermon that "where the State feasibly can provide a 7 predeprivation hearing . . . it generally must do so regardless 8 of the adequacy of a postdeprivation . . . remedy . . . ." 9 Zinermon, 494 U.S. at 132. Unless a predeprivation hearing is 10 "unduly burdensome in proportion to the liberty interest at 11 stake" or "the State is truly unable to anticipate and prevent a 12 random deprivation of a liberty interest," predeprivation notice 13 and a hearing are required before an individual may be deprived 14 of a significant liberty interest. 15 Id. The defendants raise several arguments in support of 16 their position that the right at issue here -- notice and an 17 adversarial hearing prior to civil commitment -- was not so 18 clearly established that a reasonable person in the defendants' 19 position would know that his conduct was unlawful. 20 defendants contend that the Second Circuit upheld the procedures 21 laid out in Article 9 in Project Release v. Prevost, 722 F.2d 960 22 (2d Cir. 1983), which examined the constitutionality of Article 23 9's provision allowing hospitalization for up to sixty days 24 without a hearing unless one is requested. 25 dealt, however, with the facial validity of Article 9, and 26 explicitly left open the possibility of an as-applied challenge. 31 The Project Release 1 Id. at 971. 2 unconstitutional when utilized to take an acutely dangerous and 3 mentally ill person off the streets - the basis upon which we 4 upheld the statute in Project Release. 5 The plaintiffs do not contend that Article 9 is In that decision, we concluded that involuntary 6 commitment without an automatic hearing within 48 hours was 7 constitutional when dealing with "persons with a mental illness 8 'for which care and treatment in a hospital is essential to such 9 persons' welfare and whose judgment is so impaired that [they 10 are] unable to understand the need for such treatment.'" 11 972 (quoting MHL §§ 9.27, 9.01). 12 issue here, nor the standard that was applied. 13 Id. at That is not the population at The defendants also point out that the New York 14 Appellate Division "found no constitutional violation in 15 plaintiffs' own cases when plaintiffs raised the identical due 16 process claim on state habeas review." 17 (emphasis omitted). 18 Harkavy v. Consilvio, 29 A.D.3d 221, 812 N.Y.S.2d 496 (1st Dep't 19 2006), but that decision was reversed by the New York Court of 20 Appeals, see State ex rel. Harkavy v. Consilvio, 7 N.Y.3d 607, 21 859 N.E.2d 508, 825 N.Y.S.2d 702 (2006). 22 of Appeals in Harkavy did not decide the constitutionality of 23 applying Article 9 to prisoners, in a concurrence, as we have 24 seen, Judge Smith noted that it "would raise serious 25 constitutional problems," because the plaintiffs had all been in 26 prison for several years before civil commitment procedures were Appellants' Br. 37. The defendants refer to State ex rel. 32 And although the Court 1 initiated and there was no "sudden, unforseen emergency" that 2 would require their immediate commitment without prior notice or 3 a hearing. 4 Id. at 615 (Smith, J., concurring). The defendants cite several cases in which they contend 5 that prehearing transfer and commitment of prisoners and sex 6 offenders has been held to be constitutional. 7 994 F.2d 425 (8th Cir. 1993) (per curiam), for example, the 8 Eighth Circuit affirmed a grant of summary judgment for a 9 defendant on the plaintiff's due process claim where the In Gay v. Turner, 10 plaintiff, an inmate, had been transferred to a state mental 11 hospital without a hearing. 12 was based on the plaintiff having signed transfer forms, and her 13 failure to adduce any evidence that her consent was not 14 voluntary. 15 Id. at 426. That decision, however, Id. at 427. The defendants also rely on Aruanno v. Hayman, 384 F. 16 App'x 144 (3d Cir.), cert. denied, 131 S.Ct. 835 (2010), in which 17 the Third Circuit -- in a non-precedential opinion -- upheld a 18 state-law provision allowing a court to order temporary 19 commitment based on an ex parte submission from the State 20 Attorney General. 21 the statute was entitled to a hearing within twenty days of the 22 commitment order. 23 Id. at 150. Any individual committed under Id. The factual circumstances in Aruanno differ 24 significantly from those here. New Jersey had initiated civil 25 commitment proceedings nearly a year before the plaintiff's 26 release date, but was unable to hold a hearing due in part to the 33 1 plaintiff's "repeated insistence that he be appointed new 2 counsel." 3 committed pursuant to a judicial order, albeit one based on an ex 4 parte submission. 5 schizophrenia and refused to take his medication, which a doctor 6 later testified presented a "very high" risk of future violence. 7 Id. at 146. 8 over Judge McKee's dissent, which argued that "absent exigent 9 circumstances, no justification exists for denying [the 10 plaintiff] his due process right to notice prior to his 11 involuntary commitment under the [act]." 12 continued, "[i]t is clear that post-deprivation hearings are 13 appropriate and constitutionally permissible in emergency 14 situations where there is no realistic opportunity to afford 15 prior notice to one whom the state wants to involuntarily commit. 16 That is simply not the situation here . . . ." 17 agree. 18 Id. at 145. In addition, Aruanno was temporarily Id. at 148 n.8. Aruanno suffered from The non-precedential opinion was issued, moreover, Id. at 152-53. He Id. at 153. We The defendants also point to the procedures in the 19 federal sex-offender commitment statute, 18 U.S.C. § 4248. Under 20 that statute, the Department of Justice must certify to a federal 21 district court that a prisoner is "sexually dangerous," at which 22 point the statute "stays the individual's release from 23 prison . . . giving the Government an opportunity to prove its 24 claims at a hearing." 25 1954 (2010). 26 adversarial hearing prior to his civil commitment. United States v. Comstock, 130 S.Ct. 1949, The prisoner is then afforded counsel and an 34 Id. 1 According to the defendants, the procedures set forth 2 in Article 9 are more protective than are those in the federal 3 statute because the latter permits the individual's release to be 4 stayed for up to seventy-five days or more before his commitment 5 hearing. 6 Shields, 522 F. Supp. 2d 317, 334 (D. Mass. 2007).9 7 defendants fail to acknowledge, however, is that the federal 8 statute permits a temporary stay of release prior to a commitment 9 hearing; it does not permit, as was the case here, civil See 18 U.S.C. § 4247(b); see also United States v. What the 10 commitment followed by the opportunity for a hearing. Here, the 11 question is whether an individual must be afforded the 12 opportunity for a hearing before he is civilly committed to a 13 psychiatric facility. 14 consequences of transfer to a mental hospital" and the "mandatory 15 behavior modification" treatment that prisoners undergo once at 16 the hospital, Vitek, 445 U.S. at 494, suggests there is an 17 important difference between holding an inmate for a brief period 18 beyond his release date for the purpose of providing process 19 before civil commitment and subjecting him to commitment in a 20 psychiatric facility in advance of any hearing. Vitek's emphasis on the "stigmatizing 9 In Shields, the district court declined to invalidate the federal sex-offender statute on a facial due process challenge. The court did, however, find that the lack of a probable cause hearing after certification "raises serious constitutional questions." Shields, 522 F. Supp. 2d at 333. The court concluded that, in order to avoid interpreting the act itself as unconstitutional, it would construe it to require a hearing "within forty-eight hours after a certified individual is detained beyond his scheduled release date," unless there were "exigent or extraordinary circumstances." Id. at 337. 35 1 We ultimately agree with the district court that "the 2 basic proposition that due process requires a predeprivation 3 hearing unless there is an immediate danger to society" was well 4 established prior to 2005. 5 Despite the litany of cases cited by the defendants to suggest 6 that due process tolerates civil commitment of inmates without 7 either notice or a hearing, each of those cases involved critical 8 factors not present here. 9 commitment effected without notice or a predeprivation hearing Bailey, 722 F. Supp. 2d at 451. In none of the cases was a civil 10 where the inmate was safely confined, and, indeed, where the 11 standard the inmate met was not one of immediate and acute 12 dangerousness but rather potential recidivism five, ten, or 13 fifteen years after his release. 14 F.2d 55, 57 (2d Cir. 1993) (upholding involuntary commitment 15 without a predeprivation hearing where the committed individual 16 "was hospitalized following two reports he was threatening an 17 individual with a gun," had displayed behavior described by those 18 who examined him as "hostile, guarded, angry, suspicious, 19 uncooperative, and paranoid," and "had an extensive psychiatric 20 history, which included a history of violent behavior"). 21 defendants offer no Supreme Court or Second Circuit precedent for 22 the proposition that due process is satisfied if an individual in 23 the plaintiffs' position has the opportunity to request a hearing 24 after he has been labeled an SVP and civilly committed. 25 26 See, e.g. Glass v. Mayas, 984 The Except for emergent or otherwise unusual circumstances, such as where an emergency makes it necessary for the State to 36 1 act immediately to avoid imminent harm to the person being 2 restrained or to the public, or where predeprivation process is 3 highly impracticable, the Supreme Court has long held that "the 4 Constitution requires some kind of a hearing before the State 5 deprives a person of liberty." 6 (emphasis in original). See also United States v. James Daniel 7 Good Real Prop., 510 U.S. 43, 62 (1993) ("Unless exigent 8 circumstances are present, the Due Process Clause requires the 9 Government to afford notice and a meaningful opportunity to be 10 heard before seizing real property . . . ."); Cleveland Bd. of 11 Educ. v. Loudermill, 470 U.S. 532, 542 (1985) ("An essential 12 principle of due process is that a deprivation of life, liberty, 13 or property be preceded by notice and opportunity for hearing 14 appropriate to the nature of the case." (quotation marks and 15 citation omitted)); Vitek, 445 U.S. at 496 ("[N]otice is 16 essential to afford the prisoner an opportunity to challenge the 17 contemplated action and to understand the nature of what is 18 happening to him."); Burtnieks v. City of New York, 716 F.2d 982, 19 988 (2d Cir. 1983) (observing that "the existence vel non of an 20 emergency . . . is a material fact" in determining whether a 21 predeprivation hearing is constitutionally required). 22 Zinermon, 494 U.S. at 127 Furthermore, the decision to apply the procedures of 23 Article 9 to the plaintiffs was made despite the fact that there 24 was a law in place, Correction Law § 402, which outlined civil 25 commitment procedures for those already incarcerated and which 26 clearly provided for a predeprivation hearing. 37 We think 1 reasonable persons in the defendants' positions would have 2 understood that, absent exigent circumstances not present here, 3 it was unconstitutional to civilly commit inmates to a 4 psychiatric facility prior to any notice or adversarial hearing. 5 Using the words of the district court, in the absence of any 6 "immediate danger to society," a predeprivation hearing was 7 required before civilly committing an inmate and this requirement 8 was "so obvious that no reasonable defendant official could have 9 failed to miss it." Bailey, 722 F. Supp. 2d at 450. The 10 defendants are therefore not entitled to the benefit of qualified 11 immunity. 12 III. Plaintiffs' Additional Claims 13 The defendants, citing Sadallah v. City of Utica, 383 14 F.3d 34 (2d Cir. 2004), argue that because they are entitled to 15 qualified immunity on the plaintiffs' procedural due process 16 claims, the defendants are also entitled to summary judgment on 17 the plaintiffs' remaining federal and state claims. 18 Sadallah explained that "[n]ormally, we would not have 19 jurisdiction to consider plaintiffs' [additional] claims . . . 20 because only the issue of . . . entitlement to qualified immunity 21 was immediately appealable. 22 'has taken jurisdiction over one issue in a case, it may, in its 23 discretion, exercise jurisdiction over an independent but related 24 question that is inextricably intertwined with the [appealable 25 issue] or is necessary to ensure meaningful review of that 26 issue.'" The court in When, however, an appellate court Id. at 39 (quoting Ierardi v. Sisco, 119 F.3d 183, 189 38 1 (2d Cir. 1997)). 2 the gist of the plaintiffs' other claims is the existence of a 3 deliberate conspiracy to violate the plaintiffs' rights, those 4 claims must fail because the right at issue was not clearly 5 established. 6 Specifically, the defendants urge that because We decline to exercise jurisdiction over the 7 plaintiffs' other claims. Reaching these additional claims is 8 not necessary to ensure meaningful review of the qualified 9 immunity question, nor are the claims "inextricably intertwined" 10 with that issue. Furthermore, as a practical matter, because we 11 conclude that qualified immunity does not attach to the 12 procedural due process claims, there would be no basis for 13 dismissing the other claims against the defendants. 14 IV. Plaintiffs' Summary Judgment Motion 15 Finally, the plaintiffs assert that the district court 16 erred in not granting summary judgment in their favor on their 17 procedural due process claims after determining that the 18 defendants were not entitled to qualified immunity, and, in a 19 later opinion, that each defendant participated in the 20 constitutional deprivation. 21 The plaintiffs mischaracterize the district court's 22 opinion. The court concluded that the plaintiffs had adduced 23 enough evidence of personal involvement to survive summary 24 judgment - not that "the defendants did not dispute their 25 'participat[ion] in the creation and implementation' of the SVP 26 initiative." Appellees' Br. at 60. 39 The district court noted 1 that the defendants "dispute the extent and materiality of such 2 involvement" and determined that the question must go to the 3 jury. 4 113766, at *12. 5 identified as precluding summary judgment have not been resolved, 6 and we think it impossible for us to do so on the current record. 7 Neither is this a question "inextricably intertwined" with the 8 resolution of the qualified immunity issue. Bailey, 2010 WL 4237071, at *4, 2010 U.S. Dist. LEXIS 9 10 The factual disputes that the district court CONCLUSION We have considered all of the parties' arguments, and 11 for the reasons set forth above, we affirm the decision of the 12 district court. 40