Bailey v. Pataki

10-2563
Bailey v. Pataki
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2011 3
(Argued: October 31, 2011 Decided: February 14, 2013) 4
Docket No. 10-2563 5
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Kenneth Bailey, 7
Plaintiff - Appellee, 8
Robert Trocchio, Jorge Burgos, Jr., Louis Massei, Robert Warren, 9
Charles Brooks, 10
Consolidated Plaintiffs - Appellees, 11
v. 12
George Pataki, former Governor of New York State, Eileen 13
Consilvio, former Executive Director, Manhattan Psychiatric 14
Center and Kirby Forensic Psychiatric Center, John Doe, # 1, 15
Commissioner of the New York State Department of Corrections, 16
John Doe, # 2, Commissioner of the New York State Office of 17
Mental Health, John Doe, # 3, Superintendent of Wyoming 18
Correctional Facility, John Doe, # 4, Superintendent of Attica 19
Correctional Facility, John Doe, # 5, Superintendent of the 20
Downstate Correctional Facility, John Doe, # 6 through 20, 21
medical personnel who examined and evaluated plaintiff pursuant 22
to New York State Mental Hygiene Law Article 9, Glenn S. Goord, 23
Sharon Carpinello, Michael Giambruno, James Conway, Paul Annetts, 24
Emilia Rutigliano, Prabhakar Gumbula, Allan Wells, 25
Defendants - Appellants, 26
Jonathan Kaplan, Olusegun Bello, Mary Ann Ross, Ayodeji Somefun, 27
Michal Kunz, William Powers, Lee E. Payant, Lawrence Farago, Luis 28
Hernandez, Samuel Langer, Robert Dennison, Former Chairman of the 29
New York State Board of Parole and Chief Executive Officer of the 30
New York State Division of Parole, Jeffrey Tedford, Former Deputy 31
Superintendent of Security at Clinton Correctional Facility, 32
William J. Sackett, Facility Senior Parole Officer, Clinton 33
Correctional Facility, Jean Liu, psychiatrist who evaluated 34
plaintiff for possible civil commitment, Abadul Qayyum, Charles 35

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Chung, Dale Artus, Former Superintendent of Clinton Correctional 1
Facility, 2
Consolidated Defendants - Appellants. 3
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Before: McLAUGHLIN, SACK, and HALL, Circuit Judges. 5
This is an appeal from an order of the United States 6
District Court for the Southern District of New York (Jed S. 7
Rakoff, Judge) denying the defendants' motion for summary 8
judgment. The defendants argue that they are entitled to 9
qualified immunity on the plaintiffs' 42 U.S.C. § 1983 procedural 10
due process claims because the procedures employed in the course 11
of civil commitment proceedings against the plaintiffs complied 12
with due process requirements, and because, even if they did not, 13
a reasonable person in the defendants' position would not have 14
known that he was violating the plaintiffs' constitutional 15
rights. We conclude that the district court properly denied the 16
defendants' motion for summary judgment. There is sufficient 17
evidence which, when viewed in the light most favorable to the 18
plaintiffs, supports their claim that they were denied their 19
right to procedural due process before being civilly committed. 20
We also agree with the district court that a reasonable official 21
in the defendants' position would have known that the process by 22
which the plaintiffs were committed did not satisfy basic 23
constitutional requirements and that the defendants are therefore 24
not entitled to qualified immunity. 25
Affirmed. 26
27
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AMEER BENNO, Benno & Associates, New 1
York, NY, (Richard Sullivan, Jeffrey 2
Rothman, on the brief), for Plaintiffs- 3
Appellees. 4
5
CECELIA C. CHANG, Assistant Solicitor 6
General, (Barbara D. Underwood, 7
Solicitor General, Benjamin N. Gutman, 8
Deputy Solicitor General, on the brief), 9
for Andrew M. Cuomo, Attorney General of 10
the State of New York, New York, NY, for 11
Defendants-Appellants. 12
SACK, Circuit Judge: 13
This appeal requires us to decide whether the civil 14
commitment of the plaintiffs following the expiration of their 15
sentences for sexually based criminal offenses constituted 16
violations of their procedural due process rights redressable 17
under 42 U.S.C. § 1983, and, if so, whether the defendants are 18
nonetheless entitled on the record before the district court to 19
summary judgment dismissing the procedural due process claims on 20
the grounds of qualified immunity. 21
The plaintiffs' commitments were effected not through 22
the state's normal civil commitment procedures, but by means of 23
an executive-branch effort aimed at preventing the release of 24
some "sexually violent predators" ("SVPs"). The Governor of New 25
York State at the time, Governor George E. Pataki, directed the 26
State's Office of Mental Health ("OMH") and Department of 27
Correctional Services ("DOCS") to develop a plan whereby he could 28
take executive action to implement an initiative (the "SVP 29
3

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Initiative" or the "Initiative") that would result in the 1
involuntary commitment of selected SVPs to state psychiatric 2
facilities after the expiration of their criminal sentences. The 3
plaintiffs, who were committed pursuant to this initiative, 4
assert a variety of claims against Governor Pataki and officials 5
of OMH and DOCS. 6
In this appeal, the defendants assert that the district 7
court erred when it denied their motion for summary judgment on 8
the plaintiffs' procedural due process claims, concluding that 9
the defendants are not entitled to qualified immunity. The 10
plaintiffs' claims for denial of procedural due process are 11
premised on the allegation that they were committed pursuant to 12
the SVP Initiative without the benefit of notice or an 13
opportunity for a hearing prior to their commitment. 14
We agree with the district court that there is 15
sufficient evidence in the record to support the plaintiffs' 16
procedural due process claims and therefore defeat the motion for 17
summary judgment. We also conclude that at the time of the 18
Initiative, the constitutional principle that, absent some 19
emergency or other exigent circumstance, an individual cannot be 20
involuntarily committed to a psychiatric institution without 21
notice and a predeprivation hearing was firmly established. 22
Because the law pertaining to the involuntary civil commitment of 23
prisoners was firmly established, the district court properly 24
determined that the defendants should not enjoy qualified 25
immunity. 26
4

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BACKGROUND 1
The SVP Initiative 2
In June 2005, a recently-paroled sex offender murdered 3
a woman in the parking lot of the Galleria Mall in White Plains, 4
New York. Governor Pataki had previously attempted to enact 5
legislation providing additional avenues for the commitment of 6
dangerous sex offenders, 1 but after the murder, "momentum to do 7
something around [sic.] dangerous sex offenders increased," 8
according to associate director of OMH's Forensic Services 9
Division, Richard Miraglia, who participated in the creation and 10
implementation of the SVP Initiative. Dep. of Richard Miraglia, 11
Nov. 24, 2009 ("Miraglia Dep."), at 62; Joint App'x at 147. In 12
an October 2005 press release, Governor Pataki's office explained 13
that during this time period he "directed that every sexually 14
violent predator (SVP) in State custody be evaluated for 15
involuntary civil commitment before being released from prison. 16
He directed [OMH] and [DOCS] to push the envelope of the State's 17
existing involuntary commitment law because he couldn't wait any 18
longer for the Assembly Leadership to bring his legislation to 19
1 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

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the floor for a vote." Press Release, N.Y. State Executive 1
Chamber, Governor: U.S. Dep’t of Justice Adds N.Y. to Nat’l Sex 2
Offender Public Registry Web Site (Oct. 24, 2005); Joint App'x at 3
215. 4
In order to put the governor's policy into effect, OMH 5
officials began engaging in daily discussions about how to 6
implement a civil commitment initiative. Miraglia testified that 7
the "general tenor" of these meetings reflected "concern about 8
dangerous repeat sex offenders being released to the community" 9
and "some frustration about legislative inaction." Miraglia Dep. 10
at 48; Joint App'x at 136. Discussions eventually centered on 11
using either Correction Law § 402 or Mental Hygiene Law § 9.27 12
for this purpose. The two statutes are substantially different. 13
Section 9.27 of the Mental Hygiene Law ("MHL"), 14
codified in Article 9 of the MHL and entitled "Involuntary 15
admission on medical certification," allows the director of a 16
hospital to accept any patient "alleged to be mentally ill and in 17
need of involuntary care and treatment upon the certificates of 18
two examining physicians." MHL § 9.27(a). The director must 19
also receive a sworn application explaining why the patient needs 20
mental health treatment. Id. After the patient arrives at the 21
hospital, a member of the hospital's psychiatric staff is 22
required to examine him and confirm that he should be admitted. 23
MHL § 9.27(e). The law requires that the nearest relative of the 24
patient, or any other person the patient has designated, be given 25
notice of the involuntary admission within five days of 26
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admission. MHL § 9.29(b). Within sixty days of admission, the 1
patient or a friend or relative can request a hearing on the 2
involuntary admission, which is required to be held within five 3
days of receipt by the hospital director of notice of the 4
request. MHL § 9.31(a). If no hearing has been held or court 5
order issued, or if the patient does not consent to the 6
admission, the hospital director is required to seek a court 7
order within sixty days of the patient's involuntary admission if 8
the director wishes to pursue the matter. MHL § 9.33(a). 9
Correction Law § 402 is entitled "Commitment of 10
mentally ill inmates." Under that law, if a staff physician at a 11
prison informs the prison superintendent that an inmate is 12
mentally ill, the superintendent asks a "judge of the county 13
court or justice of the supreme court in the county" to appoint 14
two physicians to examine the inmate. Correction Law § 402(1). 15
If both physicians conclude that hospitalization is appropriate, 16
they must produce certificates to that effect. Id. The 17
superintendent is then required to apply to the court for a 18
commitment order, and personally serve notice on the inmate and 19
his or her closest relative or, if relatives are unknown or not 20
within the state, "any known friend," five days prior to the 21
commitment. Correction Law § 402(3). The Mental Hygiene Legal 22
Services must then inform the inmate (or, in appropriate cases, 23
others concerned with the inmate's welfare) of "the procedures 24
for placement in a hospital and of the inmate's right to have a 25
hearing, to have judicial review with a right to a jury trial, to 26
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be represented by counsel and to seek an independent medical 1
opinion." Id. The inmate is entitled to request a hearing 2
before a judge prior to any transfer to a psychiatric hospital. 3
Correction Law § 402(5). The procedural protections in section 4
402 may only be bypassed where admission to a hospital is sought 5
on an emergency basis. Correction Law § 402(9). 6
The state officials dealing with the matter ultimately 7
decided that MHL § 9.27 would be the appropriate law through 8
which to implement the SVP Initiative. The parties disagree as 9
to whether MHL § 9.27 had previously been utilized for the civil 10
commitment of inmates. Scott Clair, who worked for OMH at Attica 11
Correctional Facility between 1976 and 2005, testified that use 12
of Correction Law § 402 was standard procedure for the civil 13
commitment of prisoners, and that he was unfamiliar with MHL § 14
9.27. Dep. of Scott Clair, January 14, 2010 ("Clair Dep."), at 15
43-44; Joint App'x at 1200-01. Hal Smith, who served as 16
executive director of the Central New York Psychiatric Center, an 17
OMH facility, similarly testified that prior to the SVP 18
Initiative, inmates were transferred from DOCS to OMH facilities 19
pursuant to the Correction Law, not the Mental Hygiene Law. Dep. 20
of Hal E. Smith, November 11, 2009 ("Smith Dep."), at 162-63, 21
166, 169; Joint App'x at 1256-59. In a related state court 22
proceeding, the state Attorney General represented that MHL 23
§ 9.27 had been used five times between 2003 and 2005 to civilly 24
commit prisoners. State ex rel. Harkavy v. Consilvio, 10 Misc. 25
3d. 851, 856, 809 N.Y.S.2d 836, 839-40 (Sup. Ct. 2005), rev'd, 29 26
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A.D.3d 221, 812 N.Y.S.2d 496 (1st Dep't), rev'd, 7 N.Y.3d 607, 1
859 N.E.2d 508, 825 N.Y.S.2d 702 (2006). 2
Sharon Carpinello, Commissioner of the OMH, presented 3
the proposed SVP Initiative, utilizing MHL § 9.27, to Governor 4
Pataki. The proposal called for a pool of SVPs to be identified 5
based on upcoming release dates. The pool of inmates was drawn 6
from those who had committed a violent offense as defined by New 7
York Penal Law § 70.02, and a sex offense as defined by Penal Law 8
§ 130, as well as from another list of inmates who had committed 9
felonies involving some sexual motivation. According to Dawne 10
Amsler, Associate Director of OMH's Bureau of Forensic Research, 11
this constituted a departure from prior practice. Previously, 12
MHL § 9.27 applied to "individuals who have a mental illness that 13
makes them dangerous to themselves or others," and inmates who 14
did not fit that criteria were evaluated prior to their release 15
pursuant only to Correction Law § 402. Dep. of Dawne Amsler, 16
Nov. 10, 2009 ("Amsler Dep."), at 21, 27; Joint App'x at 502-03. 17
Amsler testified that "individuals who were already on the mental 18
health caseload at OMH and receiving fairly intensive services 19
were evaluated at the end of their [sentences] regardless of the 20
crime they committed and perhaps committed if deemed necessary. 21
This changed [after implementation of the Initiative] in that all 22
sex offenders regardless of whether or not they were on caseloads 23
were evaluated." Id. at 36; Joint App'x at 506. 24
Under the Initiative, the identified inmates would be 25
subject to a review of their criminal histories, and then to an 26
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examination by two physicians, who would determine whether they 1
posed a risk to the public, or suffered from a mental illness, 2
and therefore needed inpatient care and treatment. If the 3
physicians recommended civil commitment, the inmate would be 4
transferred to a psychiatric center and examined by a 5
psychiatrist to confirm the diagnosis. Once admitted to the 6
facility, the inmate would begin undergoing a specialized course 7
of treatment. 8
Implementation of the Initiative began almost 9
immediately. Under Defendant Glenn Goord's direction, DOCS 10
identified SVPs scheduled for release and made the presentence 11
reports for those inmates available to OMH. OMH then compiled 12
relevant information on the inmates, including their "OMH level," 13
which did not include a specific diagnosis, and a description of 14
the offense of conviction. Between September 2005 and January 15
2006, Amsler personally compiled the information about the 16
identified inmates and provided that information to OMH 17
personnel. She completed two documents for each inmate, a 18
"FPMS/DMHIS" overview and a "Static 99" evaluation. Pls.' 19
Statement of Uncontested Material Facts Pursuant to Local Rule 20
56.1, at ¶ 85; Joint App'x 87, citing Amsler Dep. 2
21
Every inmate identified by DOCS as a potential SVP was 22
evaluated for civil commitment by OMH. Any inmate who refused to 23
submit to the evaluation was subject to disciplinary action and 24
2 Amsler did not know what the initials "FPMS" stood for.
Amsler Dep. at 122; Joint App'x at 546.
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refusal could have constituted a parole violation. The DOCS 1
Superintendent then applied for the civil commitment of SVP 2
inmates who had been deemed to meet the criteria for civil 3
commitment and had been examined by two physicians who had so 4
certified. The inmates received no advance notice that they 5
would be transferred or subject to a civil commitment evaluation. 6
While the procedures for commitment used in the SVP 7
Initiative tracked MHL § 9.27, the standard for commitment was 8
different from that ordinarily used under the provision, which 9
caused concern among those charged with implementing the 10
Initiative. 3 Miraglia testified that officials had only days to 11
develop the techniques for assessing whether SVPs qualified for 12
commitment under the Initiative. "[T]he sex offender assessment 13
is a specialty . . . that heretofore [had] not been within the 14
OMH menu of services. . . . So we needed to develop that 15
capacity to understand what . . . assessment techniques would be 16
required to identify those at highest risk for sexual 17
recidivism." Miraglia Dep. at 69; Joint App'x at 154. 18
One person involved with the Initiative wrote in an e- 19
mail under a heading "Operational Concerns and Challenges," that 20
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.
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"[e]xpertise in the treatment of sexual offenders is not widely 1
available among current OMH staff, and the majority of clinicians 2
have not had any experience with this population. Training 3
clinicians who are unfamiliar with the sexual offender population 4
to apply civil commitment criteria to these individuals may be 5
difficult." Email from Robyn Katz to Carpinello, Miraglia et al. 6
(July 29, 2005, 6:25 p.m.); Joint App'x at 593. Scott Clair, a 7
Forensic Unit Chief of the mental health unit at Attica, 8
explained that the "criteria" utilized to evaluate the inmates 9
identified as SVPs was "dangerousness to self or others." Clair 10
Dep. at 46; Joint App'x at 1203. Correction Law § 402 used the 11
same criteria, but, Clair testified, "[i]nmates that went on 402 12
were clinically decompensated to the point where they were 13
dangerous to self or others at that exact time," while those 14
under the SVP Initiative were evaluated "based on dangerousness 15
to the community based on the risk assessment and their 16
diagnosis." Id. at 47; Joint App'x 1204. 17
Another OMH physician explained that she was "asked to 18
make a prediction of the risk of possible recidivism to keep the 19
community safe," whereas the Article 9 standard, by contrast, "is 20
based on if the individual is harmful to himself and others and 21
that if this is deemed the case then the certification is good 22
for a period of 72 hours." Dep. of Mary Ann Ross, Sept. 24, 23
2009, at 437-39; Joint App'x at 1671-73. 24
The SVP Initiative's evaluation was based in part on 25
the Static 99 form, which estimated an inmate's risk of future 26
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recidivism in five, ten, and fifteen years, and which had not 1
previously been used in the State's civil commitment process. 2
When the Initiative began, most of the OMH physicians did not 3
have any experience using the Static 99 form, and some were "not 4
comfortable" using it. Smith Dep. at 157; Joint App'x at 1255. 5
The Plaintiffs' Commitment 6
Plaintiff Kenneth Bailey was among the first to be 7
evaluated pursuant to the new Initiative. He and the other 8
plaintiffs contend that had it not been for its implementation, 9
they would not have been evaluated for civil commitment at all. 10
Bailey had been convicted multiple times for sexual abuse of 11
children and has admitted to molesting twenty-three girls. His 12
most recent conviction stemmed from the repeated sexual abuse of 13
his daughter for which, in 1994, he was convicted and sentenced 14
to six to twelve years imprisonment. Some eleven years later, on 15
September 28, 2005 -- less than two weeks before he was scheduled 16
for release -- Bailey was transferred from Wyoming Correctional 17
Facility to Attica Correctional Facility. Three days before his 18
scheduled release, two OMH physicians evaluated Bailey for 19
involuntary civil commitment pursuant to the Initiative. Both 20
physicians produced written certificates stating that Bailey 21
qualified for civil commitment. 22
When Bailey's sentence expired, the Superintendent of 23
Attica applied for Bailey's involuntary commitment and DOCS 24
transported Bailey to the Manhattan Psychiatric Center ("MPC") 25
the same day. Bailey did not request a hearing following his 26
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commitment because he apparently thought he would be at MPC for 1
only a few weeks or months. He contends that he was not aware 2
that he was a psychiatric patient there. The commitment 3
proceedings for the other plaintiffs in this action followed 4
similar patterns. See Bailey v. Pataki, 722 F. Supp. 2d 443, 5
448-49 (S.D.N.Y. 2010). 6
The plaintiffs petitioned for habeas corpus relief in 7
state court, arguing that the use of MHL § 9.27, rather than 8
Correction Law § 402, to civilly commit them was illegal. State 9
ex rel. Harkavy v. Consilvio, 7 N.Y.3d 607, 859 N.E.2d 508, 825 10
N.Y.S.2d 702 (2006). In Harkavy, the New York Court of Appeals 11
commented: "[W]e understand how in an attempt to protect the 12
community from violent sexual predators, the State proceeded 13
under the Mental Hygiene Law." The court concluded, however, 14
that "because inmates who are incarcerated do not pose an 15
immediate threat to the community, there should be ample time to 16
proceed under the Correction Law." Id. at 614. The court 17
ordered that each civilly committed individual be provided "an 18
immediate retention hearing pursuant to article 9," and directed 19
that future proceedings against inmates proceed under Correction 20
Law § 402 "with all its attendant procedural requirements 21
including court supervision, pretransfer notice and an 22
opportunity to be heard within a reasonable period of time prior 23
to the inmate's proposed release date." Id. The court did not 24
decide on the constitutionality of applying Article 9 to 25
prisoners. In a concurrence by Judge Robert S. Smith, however, 26
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he cautioned that it "would raise serious constitutional 1
problems" because "Petitioners had all been in prison for years 2
before the State sought to commit them civilly. No sudden, 3
unforseen emergency required their confinement in a mental 4
hospital." Id. at 615. 5
The District Court Opinion 6
In October 2008, the plaintiffs filed this action 7
alleging claims under 42 U.S.C. § 1983 for violations of their 8
Fourteenth Amendment rights to procedural and substantive due 9
process and to equal protection, and their Fourth Amendment right 10
against unreasonable seizure, under 42 U.S.C. § 1985(3) for 11
conspiracy, and under various provisions of New York State law. 12
On March 31, 2010, both sides moved for summary judgment. The 13
district court (Jed S. Rakoff, Judge) denied the plaintiffs' 14
motion for summary judgment in full, and granted in part and 15
denied in part the defendants' motion for summary judgment. 4
16
Relevant to this appeal, the district court rejected the 17
defendants' argument that they are entitled to qualified immunity 18
on the plaintiffs' procedural due process claim. 19
In its opinion, the district court first addressed 20
whether the plaintiffs had made out a procedural due process 21
claim for their "involuntar[y] commit[ment] to civil confinement 22
without advance written notice, an evaluation by court-appointed 23
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).
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physicians, and . . . a predeprivation judicial hearing." 1
Bailey, 722 F. Supp. 2d at 447. The court explained that a 2
confined prisoner "presents no immediate danger to the community, 3
[therefore] full due process must be accorded before he can be 4
transferred, upon completion of his sentence, to involuntary 5
civil commitment." Id. at 447-48. Relying on Vitek v. Jones, 6
445 U.S. 480 (1980), the court determined that such process must 7
include notice and "a predeprivation adversary hearing . . . at 8
which the prisoner can see the evidence for the commitment and be 9
given an opportunity to be heard in person, as well as present 10
testimony and engage in cross-examination of the state's 11
witnesses." Bailey, 722 F. Supp. 2d at 448. 12
The district court then examined whether the process it 13
had determined was constitutionally required had been afforded to 14
the plaintiffs in this case. It concluded that the "plaintiffs' 15
civil confinement did not remotely comport with constitutional 16
requirements." Id. at 449. 17
Having thus decided that, viewed in the light most 18
favorable to the plaintiffs, the evidence supported the due 19
process claims, the district court then considered whether the 20
defendants were entitled to qualified immunity because the right 21
at issue was not "clearly established" when the Initiative was 22
implemented. The court determined that it was clearly 23
established at the relevant time that in the absence of any 24
"immediate danger to society," a predeprivation hearing was 25
required before civilly committing an individual and that this 26
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requirement was "so obvious that no reasonable defendant official 1
could have failed to miss it." Id. at 450-51. 2
The district court emphasized that Correction Law 3
§ 402, which specifically dealt with commitment of inmates, 4
required a predeprivation hearing. Id. at 451. The court noted, 5
finally, that: 6
[I]t is not irrelevant that the plaintiffs 7
here have advanced competent evidence from 8
which a jury could conclude that the decision 9
to deprive SVP detainees of a predeprivation 10
hearing by replacing the procedures of 11
directly applicable Correction Law § 402 with 12
those of seemingly inapplicable MHL § 9.27 13
was a deliberate decision taken for political 14
reasons. To deprive plaintiffs of their 15
constitutional rights for political gain can 16
never be reasonable. 17
Id. at 451-52. 18
The defendants appeal. 19
DISCUSSION 20
We review de novo a district court's denial of summary 21
judgment on qualified immunity grounds, and construe all evidence 22
and draw all reasonable inferences in the non-moving party's 23
favor. Amore v. Novarro, 624 F.3d 522, 529 (2d Cir. 2010). 24
Summary judgment is appropriate where "there is no genuine 25
dispute as to any material fact and the movant is entitled to 26
judgment as a matter of law." F ED . R. CIV . P. 56(a). 27
I. Procedural Due Process Claim 28
The plaintiffs allege that they were denied their 29
Fourteenth Amendment right to procedural due process when they 30
were committed to a psychiatric institution without the benefit 31
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of notice, psychiatric examination by court-appointed physicians, 1
or a judicial hearing prior to their commitment. In order to 2
state a claim under 42 U.S.C. § 1983 for denial of procedural due 3
process in the context of this litigation, the plaintiffs are 4
required to demonstrate that they have a protected liberty 5
interest in not being involuntarily committed to a psychiatric 6
institution and that they were deprived of that interest without 7
due process of law. See Tellier v. Fields, 280 F.3d 69, 79-80 8
(2d Cir. 2000). 9
On appeal, the defendants urge that the district court 10
erred in reading Vitek v. Jones, 445 U.S. 480 (1980), as 11
mandating especially stringent due process procedures for 12
prisoners, arguing that while notice and a hearing are generally 13
required, nothing in Vitek prohibits brief periods of prehearing 14
commitment if a timely hearing is later offered. The defendants 15
insist that courts have upheld identical prehearing commitments 16
of prisoners that the district court concluded did not satisfy 17
due process here, and that in any event the procedures employed 18
did indeed comply with due process requirements. The district 19
court looked to the Supreme Court's decision in Vitek in 20
determining what procedural protections are required before an 21
inmate can be civilly committed without his consent consistent 22
with due process standards. Bailey, 722 F. Supp. 2d at 447-48. 23
The court read Vitek to require notice, a predeprivation 24
adversarial hearing, and a written statement by the decision 25
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maker disclosing the reasons for the inmate's commitment. Id. at 1
448. 2
Vitek addressed an as-applied challenge to the 3
constitutionality of a Nebraska statute that provided for the 4
transfer of an inmate to a psychiatric facility at the direction 5
of the State's Director of Correctional Services if a 6
psychologist or psychiatrist concluded that the prisoner 7
"'suffers from a mental disease or defect'" that the prisoner's 8
current facility could not properly treat. Vitek, 445 U.S. at 9
483. Such a transfer remained valid until the expiration of the 10
prisoner's sentence, at which point civil commitment proceedings 11
were required prior to continued confinement. Id. at 483-84. 12
The plaintiff in Vitek was an inmate who had been 13
transferred to a psychiatric facility after setting his mattress 14
on fire while in solitary confinement. Id. at 484. The Vitek 15
Court considered whether the transfer of a prisoner to a state 16
mental hospital implicated a liberty interest triggering due 17
process protection, and concluded that the plaintiff's "objective 18
expectation" based on state law and practice that he would not be 19
transferred to a mental hospital if his condition could be 20
treated in prison did create a liberty interest requiring 21
"appropriate procedures" prior to its deprivation. Id. at 489- 22
90. The Court emphasized the "stigmatizing consequences of a 23
transfer to a mental hospital" and the "mandatory behavior 24
modification" treatment the prisoner would undergo once at that 25
hospital. Id. at 494. 26
19

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The district court in Vitek identified seven safeguards 1
it concluded were required to protect the plaintiff's liberty 2
interest. Among them were pretransfer notice to the prisoner, a 3
pretransfer hearing at which the prisoner could present and 4
cross-examine witnesses, and the right to counsel. See id. at 5
494-95. 6
In considering these requirements, the Supreme Court 7
explained that while the State has a substantial interest in 8
"segregating and treating mentally ill patients," "[t]he interest 9
of the prisoner in not being arbitrarily classified as mentally 10
ill and subjected to unwelcome treatment is also powerful," and 11
the "risk of error . . . is substantial enough to warrant 12
appropriate procedural safeguards against error." Id. at 495. 13
The Court acknowledged that the inquiry into whether a prisoner 14
should be placed in a psychiatric facility is "essentially 15
medical," but concluded that "[t]he medical nature of the 16
inquiry . . . does not justify dispensing with due process 17
requirements. It is precisely the subtleties and nuances of 18
psychiatric diagnoses that justify the requirement of adversary 19
hearings." Id. (quotation marks and citation omitted). The 20
Court concluded that the procedures prescribed by the district 21
court were "appropriate in the circumstances present . . . ." 22
Id. at 496. 5
23
5 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

-- 20 of 40 --

Vitek is plainly relevant to this case. It confirms 1
the plaintiffs' contention that a prisoner has a liberty interest 2
in the essential nature of his confinement, and that this 3
interest must be safeguarded with appropriate procedures. But it 4
does not automatically follow from the Vitek Court's endorsement 5
of the procedures mandated by the district court in that case 6
that the same process is required in every case. See id. 7
(concluding that the procedures set forth by the district court 8
were "appropriate in the circumstances present here." (emphasis 9
added)). The Court's acknowledgment that it is "precisely the 10
subtleties and nuances of psychiatric diagnoses that justify the 11
requirement of adversary hearings," id. at 495, similarly stops 12
short of identifying the circumstances in which an adversary 13
hearing must be held or what that hearing should entail. 14
Indeed, the facts and legal posture of Vitek differ 15
significantly from those before us. The plaintiff in Vitek faced 16
confinement in a psychiatric institution for the duration of his 17
prison sentence based on the opinion of a single doctor, with no 18
opportunity for an additional hearing. The procedures at issue 19
in Vitek, therefore, provided fewer safeguards than were offered 20
to the plaintiffs here. And because the Vitek Court never 21
discussed whether the availability of a postdeprivation hearing 22
negates the need for a predeprivation hearing, its applicability 23
to this case is limited. 24
The Supreme Court's decision in Zinermon v. Burch, 494 25
U.S. 113 (1990), however, does offer guidance as to when a 26
21

-- 21 of 40 --

postdeprivation hearing would survive constitutional scrutiny. 1
There, the Court considered the case of a patient admitted to a 2
state mental health hospital after completing voluntary admission 3
forms. The patient later alleged that he was a paranoid 4
schizophrenic and had been unable to give informed consent to his 5
admission. The defendants, he asserted, should have afforded him 6
the procedural safeguards required for involuntary commitment, 7
including a hearing. Id. at 123-24. 8
Quoting Mathews v. Eldrige, 424 U.S. 319, 335 (1976), 9
the Court described the factors to be considered in determining 10
what procedural protections are necessary in a particular case: 11
"First, the private interest that will be 12
affected by the official action; second, the 13
risk of an erroneous deprivation of such 14
interest through the procedures used, and the 15
probable value, if any, of additional or 16
substitute procedural safeguards; and 17
finally, the Government's interest, including 18
the function involved and the fiscal and 19
administrative burdens that the additional or 20
substitute procedural requirement would 21
entail." 22
Zinermon, 494 U.S. at 127. 23
The Zinermon Court observed that, applying the Mathews 24
test, it "usually has held that the Constitution requires some 25
kind of hearing before the State deprives a person of liberty or 26
property." Id. (emphasis in original). But, the Court 27
continued, a postdeprivation hearing might satisfy due process 28
where a predeprivation hearing is "unduly burdensome in 29
proportion to the liberty interest at stake" or "where the State 30
is truly unable to anticipate and prevent a random deprivation of 31
22

-- 22 of 40 --

a liberty interest." Id. at 132. "[W]here the State feasibly 1
can provide a predeprivation hearing," however, "it generally 2
must do so regardless of the adequacy of a postdeprivation . . . 3
remedy." Id. 4
The Court concluded that the defendants could be liable 5
to the plaintiff under his section 1983 claim for deprivation of 6
his procedural due process rights because it was foreseeable that 7
a mentally ill patient incompetent to give informed consent would 8
nonetheless sign a voluntary admission form and because the Court 9
could not "say that predeprivation process was impossible" under 10
the circumstances. Id. at 136-37. 11
The deprivation here seems to us to have been as 12
foreseeable as it was in Zinermon. As in that case, the 13
deprivation here occurred at a "predictable point," see id. at 14
136 -- the expiration of the inmate's sentence. Nothing that 15
occurred here was random or unanticipated so as to prevent the 16
State from planning for and then providing predeprivation 17
process. Nor, as we discuss below, can it reasonably be argued 18
that predeprivation procedural protections were "unduly 19
burdensome" in comparison with the substantial liberty interest 20
at stake. 21
Application of the Mathews balancing test supports the 22
conclusion that predeprivation process was required here and that 23
postdeprivation remedies were constitutionally insufficient. See 24
Mathews, 424 U.S. at 334-35. With respect to the "private 25
interest" aspect of the standard, the defendants acknowledge that 26
23

-- 23 of 40 --

"involuntary commitment is a significant curtailment of liberty," 1
but argue that because of the "extremely brief" period of 2
potential prehearing commitment, the safeguards required are not 3
as significant as they would otherwise be. Appellants' Br. 30. 4
We think there can be no serious doubt that the liberty interests 5
implicated here are of a high order. Not only were the 6
plaintiffs' physical freedoms curtailed, but they were also 7
subject to specialized mental health treatment. This treatment 8
included the use of a "penile plethysmograph," which the First 9
Circuit has explained is a "strain gauge strapped to an 10
individual's genitals while sexually explicit pictures are 11
displayed in an effort to determine his sexual arousal patterns." 12
Harrington v. Almy, 977 F.2d 37, 44 (1st Cir. 1992). One can 13
imagine that to be something less than a dignity inspiring 14
experience. 15
Classification as an SVP also constitutes a fundamental 16
change in an inmate's status and privileges. An SVP committed to 17
a psychiatric hospital cannot gain release until he has secured 18
either employment or vocational training, despite the fact that 19
any potential employer must be notified of his SVP status. An 20
SVP also suffers the stigma of the label itself, which connotes a 21
likelihood of recidivist sexually violent behavior, and of a 22
diagnosis of mental illness. And although it may be true that 23
SVPs have already been convicted of sex offenses carrying 24
significant stigma, that the additional stigma is only 25
incremental does not render it illusory. 26
24

-- 24 of 40 --

As Vitek confirmed, a prisoner –- even one convicted of 1
an atrocious crime -- maintains a liberty interest in the 2
conditions relating to the essential nature of his confinement. 3
Here, not only did those committed pursuant to the SVP Initiative 4
face a material change in the nature of their confinement, but 5
their confinement was also prolonged. 6
With regard to the second factor in the Mathews test -- 7
"risk of an erroneous deprivation of such interest through the 8
procedures used," Zinermon, 494 U.S. at 127 -- the defendants 9
insist that the risk of such an erroneous deprivation during the 10
five-day period before a committed SVP is entitled to a hearing 11
is "slight" because of the safeguards provided in Article 9. 12
Appellants' Br. 30. The defendants' argument is not without 13
force. There were, on paper, procedures intended to mitigate the 14
risk of an erroneous deprivation. For example, three separate 15
medical professionals were required to sign off on every 16
commitment. And, as the defendants point out, fewer than 20 17
percent of those evaluated under the SVP Initiative were 18
ultimately committed. 19
Despite these safeguards, several factors increased the 20
risk that an inmate would be erroneously committed under the 21
Initiative. The OMH physicians charged with examining the 22
prisoners were unfamiliar with the standards for assessing sex 23
offenders and the likelihood of recidivism, and were evaluating 24
them using a novel standard and new tools, such as the Static 99 25
form, with which they had no experience. 26
25

-- 25 of 40 --

Although it may be dangerous to overstate the 1
importance of the fact that the Initiative was quickly put into 2
place in a politically charged environment, it is difficult to 3
ignore (as the district court did not). Because of the infancy 4
of the Initiative and the lack of training or formal procedures, 5
coupled with significant political pressure, the risk of error 6
seems to us to have been enhanced. See Rodriguez v. City of New 7
York, 72 F.3d 1051, 1062 (2d Cir. 1995) ("Though we agree with 8
the district court that due process does not require a guarantee 9
that a physician's assessment of the likelihood of serious harm 10
be correct, . . . due process does demand that the decision to 11
order an involuntary emergency commitment be made in accordance 12
with a standard that promises some reasonable degree of 13
accuracy."). Additional safeguards would unquestionably have 14
lessened this risk. If the plaintiffs were afforded notice and a 15
hearing prior to their commitments, the decision as to whether to 16
commit would have been undertaken by a neutral decisionmaker with 17
the benefit of an adversarial hearing. 18
The defendants argue that the availability of a 19
postdeprivation hearing mitigated the risk of erroneous 20
deprivation. They point out that none of the plaintiffs 21
requested a hearing following his commitment. Although this is 22
true, the plaintiffs' filing of a habeas corpus petition in New 23
York State court and Bailey's allegation that he did not know 24
that he could request such a hearing, suggest that the 25
26

-- 26 of 40 --

availability and contours of the process likely were not clear to 1
the plaintiffs. 6
2
With respect to the third part of the Mathews test -- 3
the Government's interest, including the function involved and 4
the fiscal and administrative burdens that the additional or 5
substitute procedural requirement would entail, Zinermon, 494 6
U.S. at 127 -- the defendants urge that predeprivation hearings 7
would have imposed a substantial burden on the State. They note 8
that during the first month of the Initiative, eighty prisoners 9
were examined, twenty-one of whom were eventually committed, and 10
that many of these prisoners were on the verge of being released. 11
Because the SVP Initiative had begun only weeks before some of 12
the plaintiffs were scheduled for release, the defendants 13
contend, predeprivation hearings, in addition to conducting 14
psychiatric evaluations, would have diverted scarce resources 15
from the treatment of mentally ill inmates. 16
We disagree. Under the provisions of Article 9, the 17
defendants should have been prepared to present their case for 18
civil commitment at a hearing on five-days notice at any point 19
after a civil commitment was effected. It does not follow that 20
they could not have prepared for such a hearing in advance of 21
commitment without incurring substantial additional expense or 22
effort. The sole reason that holding predeprivation hearings 23
6 The record otherwise contains little detail about what
the plaintiffs understood regarding the availability of
postdeprivation hearings.
27

-- 27 of 40 --

would have unduly burdened the State is that a decision was made 1
to create and implement the Initiative on a compressed timeline; 2
any exceptional burden that the State faced was of its own 3
making. We do not think this fact should work in the defendants' 4
favor –- if it did, due process requirements could be curtailed 5
by delaying the establishment of proper procedures until they 6
became "too burdensome." 7
Construing the evidence in the light most favorable to 8
the plaintiffs, the facts alleged, if proven, would establish 9
that the defendants violated the plaintiffs' rights to procedural 10
due process. Even if it may be said that the district court 11
mischaracterized Vitek's dicta as holding, we find no support for 12
the defendants' contention that a predeprivation hearing was not 13
required in the absence of emergent circumstances. The Mathews 14
test brings the defendants' violation into sharp relief: the 15
private interest at stake was significant; the risk of erroneous 16
deprivation was pronounced due to the lack of notice or an 17
adversary proceeding, the politically charged environment, and 18
the novel aspects of this initiative, and that risk would have 19
been reduced by additional procedures; and the burden to the 20
State would have been no greater predeprivation than 21
postdeprivation were it not for the State's own actions in 22
scrambling to implement the Initiative. 23
28

-- 28 of 40 --

II. Qualified Immunity 1
The defendants are entitled to qualified immunity if 2
they can establish either that (1) "a constitutional right was 3
[not] violated" or (2) "the right was [not] clearly established." 4
Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part on 5
other grounds by Pearson v. Callahan, 555 U.S. 223 (2009). 7 As a 6
part of this inquiry, the Court considers whether "it would be 7
clear to a reasonable officer that his conduct was unlawful in 8
the situation he confronted." 8 Id. at 202. 9
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

-- 29 of 40 --

Qualified immunity is an affirmative defense and the 1
burden is on the defendant-official to establish it on a motion 2
for summary judgment. See In re State Police Litig., 88 F.3d 3
111, 123 (2d Cir. 1996). We have already determined that there 4
is sufficient evidence in the record to support, as a matter of 5
law, the plaintiffs' procedural due process claims. We therefore 6
turn to the question of whether the right at issue was clearly 7
established. In answering that question, we look to whether (1) 8
the right was defined with reasonable clarity, (2) the Supreme 9
Court or the Second Circuit has confirmed the existence of the 10
right, and (3) a reasonable defendant would have understood from 11
the existing law that his conduct was unlawful. Luna v. Pico, 12
356 F.3d 481, 490 (2d Cir. 2004). We have further held that 13
where the law was established in three other circuits and the 14
decisions of our own Court foreshadowed the right, the law was 15
sufficiently "well established" that its violation stripped the 16
defendant of his immunity. Varrone v. Bilotti, 123 F.3d 75, 78- 17
79 (2d Cir. 1997). 18
For a right to be clearly established, it is not 19
necessary that courts have agreed "upon the precise formulation 20
of the standard." Saucier, 533 U.S. at 202. "Assuming, for 21
instance, that various courts have agreed that certain conduct is 22
a constitutional violation under facts not distinguishable in a 23
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

-- 30 of 40 --

fair way from the facts presented in the case at hand, the 1
[defendants] would not be entitled to qualified immunity based 2
simply on the argument that courts had not agreed on one verbal 3
formulation of the controlling standard." Id. at 202-03. 4
The Supreme Court stated more than twenty years ago in 5
Zinermon that "where the State feasibly can provide a 6
predeprivation hearing . . . it generally must do so regardless 7
of the adequacy of a postdeprivation . . . remedy . . . ." 8
Zinermon, 494 U.S. at 132. Unless a predeprivation hearing is 9
"unduly burdensome in proportion to the liberty interest at 10
stake" or "the State is truly unable to anticipate and prevent a 11
random deprivation of a liberty interest," predeprivation notice 12
and a hearing are required before an individual may be deprived 13
of a significant liberty interest. Id. 14
The defendants raise several arguments in support of 15
their position that the right at issue here -- notice and an 16
adversarial hearing prior to civil commitment -- was not so 17
clearly established that a reasonable person in the defendants' 18
position would know that his conduct was unlawful. The 19
defendants contend that the Second Circuit upheld the procedures 20
laid out in Article 9 in Project Release v. Prevost, 722 F.2d 960 21
(2d Cir. 1983), which examined the constitutionality of Article 22
9's provision allowing hospitalization for up to sixty days 23
without a hearing unless one is requested. Project Release 24
dealt, however, with the facial validity of Article 9, and 25
explicitly left open the possibility of an as-applied challenge. 26
31

-- 31 of 40 --

Id. at 971. The plaintiffs do not contend that Article 9 is 1
unconstitutional when utilized to take an acutely dangerous and 2
mentally ill person off the streets –- the basis upon which we 3
upheld the statute in Project Release. 4
In that decision, we concluded that involuntary 5
commitment without an automatic hearing within 48 hours was 6
constitutional when dealing with "persons with a mental illness 7
'for which care and treatment in a hospital is essential to such 8
persons' welfare and whose judgment is so impaired that [they 9
are] unable to understand the need for such treatment.'" Id. at 10
972 (quoting MHL §§ 9.27, 9.01). That is not the population at 11
issue here, nor the standard that was applied. 12
The defendants also point out that the New York 13
Appellate Division "found no constitutional violation in 14
plaintiffs' own cases when plaintiffs raised the identical due 15
process claim on state habeas review." Appellants' Br. 37. 16
(emphasis omitted). The defendants refer to State ex rel. 17
Harkavy v. Consilvio, 29 A.D.3d 221, 812 N.Y.S.2d 496 (1st Dep't 18
2006), but that decision was reversed by the New York Court of 19
Appeals, see State ex rel. Harkavy v. Consilvio, 7 N.Y.3d 607, 20
859 N.E.2d 508, 825 N.Y.S.2d 702 (2006). And although the Court 21
of Appeals in Harkavy did not decide the constitutionality of 22
applying Article 9 to prisoners, in a concurrence, as we have 23
seen, Judge Smith noted that it "would raise serious 24
constitutional problems," because the plaintiffs had all been in 25
prison for several years before civil commitment procedures were 26
32

-- 32 of 40 --

initiated and there was no "sudden, unforseen emergency" that 1
would require their immediate commitment without prior notice or 2
a hearing. Id. at 615 (Smith, J., concurring). 3
The defendants cite several cases in which they contend 4
that prehearing transfer and commitment of prisoners and sex 5
offenders has been held to be constitutional. In Gay v. Turner, 6
994 F.2d 425 (8th Cir. 1993) (per curiam), for example, the 7
Eighth Circuit affirmed a grant of summary judgment for a 8
defendant on the plaintiff's due process claim where the 9
plaintiff, an inmate, had been transferred to a state mental 10
hospital without a hearing. Id. at 426. That decision, however, 11
was based on the plaintiff having signed transfer forms, and her 12
failure to adduce any evidence that her consent was not 13
voluntary. Id. at 427. 14
The defendants also rely on Aruanno v. Hayman, 384 F. 15
App'x 144 (3d Cir.), cert. denied, 131 S.Ct. 835 (2010), in which 16
the Third Circuit -- in a non-precedential opinion -- upheld a 17
state-law provision allowing a court to order temporary 18
commitment based on an ex parte submission from the State 19
Attorney General. Id. at 150. Any individual committed under 20
the statute was entitled to a hearing within twenty days of the 21
commitment order. Id. 22
The factual circumstances in Aruanno differ 23
significantly from those here. New Jersey had initiated civil 24
commitment proceedings nearly a year before the plaintiff's 25
release date, but was unable to hold a hearing due in part to the 26
33

-- 33 of 40 --

plaintiff's "repeated insistence that he be appointed new 1
counsel." Id. at 145. In addition, Aruanno was temporarily 2
committed pursuant to a judicial order, albeit one based on an ex 3
parte submission. Id. at 148 n.8. Aruanno suffered from 4
schizophrenia and refused to take his medication, which a doctor 5
later testified presented a "very high" risk of future violence. 6
Id. at 146. The non-precedential opinion was issued, moreover, 7
over Judge McKee's dissent, which argued that "absent exigent 8
circumstances, no justification exists for denying [the 9
plaintiff] his due process right to notice prior to his 10
involuntary commitment under the [act]." Id. at 152-53. He 11
continued, "[i]t is clear that post-deprivation hearings are 12
appropriate and constitutionally permissible in emergency 13
situations where there is no realistic opportunity to afford 14
prior notice to one whom the state wants to involuntarily commit. 15
That is simply not the situation here . . . ." Id. at 153. We 16
agree. 17
The defendants also point to the procedures in the 18
federal sex-offender commitment statute, 18 U.S.C. § 4248. Under 19
that statute, the Department of Justice must certify to a federal 20
district court that a prisoner is "sexually dangerous," at which 21
point the statute "stays the individual's release from 22
prison . . . giving the Government an opportunity to prove its 23
claims at a hearing." United States v. Comstock, 130 S.Ct. 1949, 24
1954 (2010). The prisoner is then afforded counsel and an 25
adversarial hearing prior to his civil commitment. Id. 26
34

-- 34 of 40 --

According to the defendants, the procedures set forth 1
in Article 9 are more protective than are those in the federal 2
statute because the latter permits the individual's release to be 3
stayed for up to seventy-five days or more before his commitment 4
hearing. See 18 U.S.C. § 4247(b); see also United States v. 5
Shields, 522 F. Supp. 2d 317, 334 (D. Mass. 2007). 9 What the 6
defendants fail to acknowledge, however, is that the federal 7
statute permits a temporary stay of release prior to a commitment 8
hearing; it does not permit, as was the case here, civil 9
commitment followed by the opportunity for a hearing. Here, the 10
question is whether an individual must be afforded the 11
opportunity for a hearing before he is civilly committed to a 12
psychiatric facility. Vitek's emphasis on the "stigmatizing 13
consequences of transfer to a mental hospital" and the "mandatory 14
behavior modification" treatment that prisoners undergo once at 15
the hospital, Vitek, 445 U.S. at 494, suggests there is an 16
important difference between holding an inmate for a brief period 17
beyond his release date for the purpose of providing process 18
before civil commitment and subjecting him to commitment in a 19
psychiatric facility in advance of any hearing. 20
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

-- 35 of 40 --

We ultimately agree with the district court that "the 1
basic proposition that due process requires a predeprivation 2
hearing unless there is an immediate danger to society" was well 3
established prior to 2005. Bailey, 722 F. Supp. 2d at 451. 4
Despite the litany of cases cited by the defendants to suggest 5
that due process tolerates civil commitment of inmates without 6
either notice or a hearing, each of those cases involved critical 7
factors not present here. In none of the cases was a civil 8
commitment effected without notice or a predeprivation hearing 9
where the inmate was safely confined, and, indeed, where the 10
standard the inmate met was not one of immediate and acute 11
dangerousness but rather potential recidivism five, ten, or 12
fifteen years after his release. See, e.g. Glass v. Mayas, 984 13
F.2d 55, 57 (2d Cir. 1993) (upholding involuntary commitment 14
without a predeprivation hearing where the committed individual 15
"was hospitalized following two reports he was threatening an 16
individual with a gun," had displayed behavior described by those 17
who examined him as "hostile, guarded, angry, suspicious, 18
uncooperative, and paranoid," and "had an extensive psychiatric 19
history, which included a history of violent behavior"). The 20
defendants offer no Supreme Court or Second Circuit precedent for 21
the proposition that due process is satisfied if an individual in 22
the plaintiffs' position has the opportunity to request a hearing 23
after he has been labeled an SVP and civilly committed. 24
Except for emergent or otherwise unusual circumstances, 25
such as where an emergency makes it necessary for the State to 26
36

-- 36 of 40 --

act immediately to avoid imminent harm to the person being 1
restrained or to the public, or where predeprivation process is 2
highly impracticable, the Supreme Court has long held that "the 3
Constitution requires some kind of a hearing before the State 4
deprives a person of liberty." Zinermon, 494 U.S. at 127 5
(emphasis in original). See also United States v. James Daniel 6
Good Real Prop., 510 U.S. 43, 62 (1993) ("Unless exigent 7
circumstances are present, the Due Process Clause requires the 8
Government to afford notice and a meaningful opportunity to be 9
heard before seizing real property . . . ."); Cleveland Bd. of 10
Educ. v. Loudermill, 470 U.S. 532, 542 (1985) ("An essential 11
principle of due process is that a deprivation of life, liberty, 12
or property be preceded by notice and opportunity for hearing 13
appropriate to the nature of the case." (quotation marks and 14
citation omitted)); Vitek, 445 U.S. at 496 ("[N]otice is 15
essential to afford the prisoner an opportunity to challenge the 16
contemplated action and to understand the nature of what is 17
happening to him."); Burtnieks v. City of New York, 716 F.2d 982, 18
988 (2d Cir. 1983) (observing that "the existence vel non of an 19
emergency . . . is a material fact" in determining whether a 20
predeprivation hearing is constitutionally required). 21
Furthermore, the decision to apply the procedures of 22
Article 9 to the plaintiffs was made despite the fact that there 23
was a law in place, Correction Law § 402, which outlined civil 24
commitment procedures for those already incarcerated and which 25
clearly provided for a predeprivation hearing. We think 26
37

-- 37 of 40 --

reasonable persons in the defendants' positions would have 1
understood that, absent exigent circumstances not present here, 2
it was unconstitutional to civilly commit inmates to a 3
psychiatric facility prior to any notice or adversarial hearing. 4
Using the words of the district court, in the absence of any 5
"immediate danger to society," a predeprivation hearing was 6
required before civilly committing an inmate and this requirement 7
was "so obvious that no reasonable defendant official could have 8
failed to miss it." Bailey, 722 F. Supp. 2d at 450. The 9
defendants are therefore not entitled to the benefit of qualified 10
immunity. 11
III. Plaintiffs' Additional Claims 12
The defendants, citing Sadallah v. City of Utica, 383 13
F.3d 34 (2d Cir. 2004), argue that because they are entitled to 14
qualified immunity on the plaintiffs' procedural due process 15
claims, the defendants are also entitled to summary judgment on 16
the plaintiffs' remaining federal and state claims. The court in 17
Sadallah explained that "[n]ormally, we would not have 18
jurisdiction to consider plaintiffs' [additional] claims . . . 19
because only the issue of . . . entitlement to qualified immunity 20
was immediately appealable. When, however, an appellate court 21
'has taken jurisdiction over one issue in a case, it may, in its 22
discretion, exercise jurisdiction over an independent but related 23
question that is inextricably intertwined with the [appealable 24
issue] or is necessary to ensure meaningful review of that 25
issue.'" Id. at 39 (quoting Ierardi v. Sisco, 119 F.3d 183, 189 26
38

-- 38 of 40 --

(2d Cir. 1997)). Specifically, the defendants urge that because 1
the gist of the plaintiffs' other claims is the existence of a 2
deliberate conspiracy to violate the plaintiffs' rights, those 3
claims must fail because the right at issue was not clearly 4
established. 5
We decline to exercise jurisdiction over the 6
plaintiffs' other claims. Reaching these additional claims is 7
not necessary to ensure meaningful review of the qualified 8
immunity question, nor are the claims "inextricably intertwined" 9
with that issue. Furthermore, as a practical matter, because we 10
conclude that qualified immunity does not attach to the 11
procedural due process claims, there would be no basis for 12
dismissing the other claims against the defendants. 13
IV. Plaintiffs' Summary Judgment Motion 14
Finally, the plaintiffs assert that the district court 15
erred in not granting summary judgment in their favor on their 16
procedural due process claims after determining that the 17
defendants were not entitled to qualified immunity, and, in a 18
later opinion, that each defendant participated in the 19
constitutional deprivation. 20
The plaintiffs mischaracterize the district court's 21
opinion. The court concluded that the plaintiffs had adduced 22
enough evidence of personal involvement to survive summary 23
judgment –- not that "the defendants did not dispute their 24
'participat[ion] in the creation and implementation' of the SVP 25
initiative." Appellees' Br. at 60. The district court noted 26
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that the defendants "dispute the extent and materiality of such 1
involvement" and determined that the question must go to the 2
jury. Bailey, 2010 WL 4237071, at *4, 2010 U.S. Dist. LEXIS 3
113766, at *12. The factual disputes that the district court 4
identified as precluding summary judgment have not been resolved, 5
and we think it impossible for us to do so on the current record. 6
Neither is this a question "inextricably intertwined" with the 7
resolution of the qualified immunity issue. 8
CONCLUSION 9
We have considered all of the parties' arguments, and 10
for the reasons set forth above, we affirm the decision of the 11
district court. 12
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