United States District Court, N.D. New York. David DONHAUSER, Plaintiff, v.
Glenn S. GOORD, Commissioner of the New York State Department of Correctional Services; Martha E.
Yourth, CSW Guidance Specialist; Dominic Martinelli, Sex Offender Program Counselor; and S.
Carter, S.C.C., Oneida Correctional Facility, Defendants.
No. 01-CV-1535.
April 15, 2004.
Background: State inmate brought pro se § 1983 action against prison officials, alleging violations of his privilege against self-incrimination and his due process, equal protection, and privacy rights and seeking declaratory, injunctive, and monetary relief. Inmate moved for preliminary injunctive relief.
Holdings: The District Court, Hurd, J., held that: (1) allegations supported claim for violation of inmate's Fifth Amendment privilege against selfincrimination, and (2) preliminary injunctive relief was warranted.
Motion granted in part and denied in part.
*140 David Donhauser, Oneida Correctional Facility, Rome, Plaintiff, pro se. Honorable Eliot Spitzer, Attorney General for the State of New York, Albany (Nelson Sheingold, of counsel), for defendants.
MEMORANDUM-DECISION and ORDER
HURD, District Judge.
I. INTRODUCTION
By Memorandum-Decision and Order dated April 15, 2004 (“April 15th MDO”), defendants' motion to dismiss the second amended complaint pursuant to Fed.R.Civ.P. 12 was denied as to plaintiff's claim that the Sexual Offender Counseling Program (“SOCP”) administered at the Oneida Correctional Facility, and its requirement that participants divulge histories of sexual conduct, including acts for which no criminal charges have been brought, violated his Fifth Amendment privilege against self-incrimination, and

granted in every other respect. (Docket No. 79.)
On June 19, 2003, plaintiff filed a motion for preliminary and/or injunctive relief pursuant to Fed.R.Civ.P. 65. (Docket Nos. 54, 63.) Defendants opposed. (Docket Nos. 59, 60.) In light of the April 15th MDO, plaintiff's motion for a preliminary injunction must be granted in part.
II. PRELIMINARY INJUNCTION STANDARD
[1] To prevail on a motion for preliminary injunctive relief, plaintiff must demonstrate irreparable harm and either a substantial likelihood of success on the merits, or sufficiently serious questions going to the merits and a balance of hardships tipping decidedly in his favor. Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir.1992).
III. DISCUSSION
The facts of this case were adequately laid out in the April 15th MDO, and need not be repeated here. Prior to its issuance, and the ReportRecommendation that preceded it, plaintiff's first motion for preliminary injunctive relief was denied pursuant to McKune v. Lile, 536 U.S. 24, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002), and on the grounds that plaintiff had failed to submit any evidence to support his allegations.
Defendants argue that the former comprises the “law of the case” and mandates dismissal of plaintiff's pending motion for preliminary injunctive relief. The Second Circuit has “observed that the law of the case doctrine ‘is, at best, a discretionary doctrine which does not constitute a limitation on the court's power but merely expresses the general practice of refusing to reopen what has been decided.’ ” Brody v. Vill. of Port Chester, 345 F.3d 103, 110 (2d Cir.2003) (quoting United States v. Martinez, 987 F.2d 920, 923 (2d Cir.1993)). In this case, to the extent the earlier denial of plaintiff's first motion for preliminary injunctive relief can be read to hold that McKune precluded his surviving Fifth Amendment claim, it is here clarified to not do so, as set forth extensively in the April 15th MDO, which is endorsed and reiterated herein.
*141 [2] With regards to the second ground upon

which plaintiff's earlier motion for preliminary injunctive relief was denied-that he had submitted no evidence aside from his own affidavit-it is noted that plaintiff attached to his pending motion several exhibits that support his allegations that he was threatened with a loss of, and did in fact lose, good time credits as a direct and automatic result of his refusal to give up his right to silence and participate in the SOCP. (Docket No. 54, Exs. A-F.) As noted in the April 15th MDO, such evidence, if found persuasive, would give rise to a viable claim under the Fifth Amendment.
[3] Defendants' only other substantive argument against the pending motion for preliminary injunctive relief is that, because plaintiff has now actually lost good time credits, instead of merely anticipating the same, his claim cannot be sustained under 42 U.S.C. § 1983 pursuant to Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). This argument confuses and improperly groups together plaintiff's due process and Fifth Amendment claims. Heck and Edwards were in fact cited in a Memorandum-Decision and Order in this case, dated October 14, 2003, denying plaintiff's motion to amend the second amended complaint. (Docket No. 70.) In that decision, however, it was noted that “[s]ince [plaintiff] has not alleged that the administrative decision revoking his good time credits has been reversed, any due process claims regarding his loss of good time credits would necessarily be barred by Heck and Edwards.” Id. at 3-4 (emphasis added). Thus, the proposed third amended complaint was read to modify plaintiff's due process claim, but not his Fifth Amendment claim, which was directed at the SOCP and its requirements, and which is the only claim that survived the April 15th MDO.
The relief, if appropriate, to restore lost good time credits must await final resolution of the Fifth Amendment claim. Plaintiff is not entitled to a preliminary injunction restoring his lost good time credits.
Therefore, in light of the April 15th MDO, plaintiff is entitled to some preliminary injunctive relief, in the form of an order enjoining defendants from requiring, as part of the SOCP, participants to divulge a history of sexual conduct, including illegal acts for which no

criminal charges have been filed.
Accordingly, it is
ORDERED that
1. Plaintiff's motion for a preliminary injunction is GRANTED in part;
2. The defendants and persons acting under their discretion and/or control are enjoined from requiring a prisoner to divulge his or her history of sexual conduct, including illegal acts for which no criminal charges have been filed, in order to be eligible to participate in the Sexual Offender Counseling Program;
3. The motion is DENIED in all other respects.
IT IS SO ORDERED.
N.D.N.Y.,2004. Donhauser v. Goord 314 F.Supp.2d 139
END OF DOCUMENT

 
 United States District Court, N.D. New York. David DONHAUSER, Plaintiff, v.
Glenn S. GOORD, Commissioner of the New York State Department of Correctional Services; Martha E.
Yourth, CSW Guidance Specialist; Dominic Martinelli, Sex Offender Program Counselor; and S.
Carter, S.C.C., Oneida Correctional Facility, Defendants.
No. 01-CV-1535.
April 23, 2004.
Background: State inmate brought pro se § 1983 action against prison officials, alleging violations of his privilege against self-incrimination and his due process, equal protection, and privacy rights and seeking declaratory, injunctive, and monetary relief. Inmate moved for preliminary injunctive relief.
Holding: Amending its prior order, 314 F.Supp.2d 139, 2004 WL 837760, the District Court, Hurd, J., held that inmate established entitlement to preliminary injunction. Ordered accordingly.
*160 David Donhauser, Oneida Correctional Facility, Rome, NY, pro se. Eliot Spitzer, Albany, NY, Nelson Sheingold, Assistant Attorney General, of Counsel, Attorney General for the State of New York.
ORDER
HURD, District Judge. On April 15, 2004, defendants' motion to dismiss the second amended complaint was granted in part and denied in part. (Docket No. 79.) Because plaintiff is likely to succeed on the merits of his claim that his Fifth Amendment rights were violated with respect to the threatened loss of good time credits as a result of his refusal to participate in defendants' Sexual Offender Counseling Program, plaintiff's motion for a preliminary injunction was granted. (Docket No. 80.) Particularly, “defendants *161 and persons acting under their [direction] and/or control [were] enjoined from requiring a prisoner to divulge his or her history of sexual conduct, including illegal acts for which no criminal charges have been filed, in order to be eligible to participate in the Sexual Offender Counseling Program.” Id.

On April 21, 2004, defendants filed a notice of appeal of both decisions with the Second Circuit Court of Appeals. (Docket No. 82.) The following day, defendants filed a motion to stay the injunction and all other proceedings in district court pending their appeal. (Docket Nos. 83-84.)
Upon consideration of defendants' submissions, it is
ORDERED that
1. Defendants' motion for a stay is DENIED; and
2. The preliminary injunction is VACATED and AMENDED to read as follows: defendants and persons acting under their direction and/or control are enjoined from depriving a prisoner of good time credits because of the prisoner's refusal to divulge a history of sexual conduct, including illegal acts for which no criminal charges have been filed, in order to be eligible for the Sexual Offender Counseling Program.
IT IS SO ORDERED.
N.D.N.Y.,2004. Donhauser v. Goord 317 F.Supp.2d 160
END OF DOCUMENT

 
 United States District Court, N.D. New York. David DONHAUSER, Plaintiff, v.
Glenn S. GOORD, Commissioner of the New York State Department of Correctional Services; Martha E.
Yourth, CSW Guidance Specialist; Dominic Martinelli, Sex Offender Program Counselor; and S.
Carter, S.C.C., Oneida Correctional Facility, Defendants.
No. 01-CV-1535.
April 15, 2004.
Background: State inmate brought pro se § 1983 action against prison officials, alleging violations of his privilege against self-incrimination and his due process, equal protection, and privacy rights and seeking declaratory, injunctive, and monetary relief. Defendants moved to dismiss.
Holdings: Adopting in part the report and recommendation of Gary L. Sharpe, United States Magistrate Judge, the District Court, Hurd, J., held that: (1) requiring inmate, as part of sexual offender counseling program, to divulge history of sexual conduct violates inmate's Fifth Amendment privilege against self-incrimination, and (2) officials were entitled to qualified immunity from monetary damages on inmate's Fifth Amendment claim.
Motion granted in part and denied in part.
*120 David Donhauser, Oneida Correctional Facility, Rome, NY, Plaintiff, pro se. *121 Honorable Eliot Spitzer, Attorney General for the State of New York, Albany, NY, Nelson Sheingold, Assistant Attorney General, of Counsel.
MEMORANDUM-DECISION and ORDER
HURD, District Judge.
I. INTRODUCTION
On April 23, 2002, pro se plaintiff David Donhauser (“plaintiff”) filed a second amended complaint against defendants (Glenn S. Goord, Commissioner of the New York State Department of Corrections;

Martha E. Yourth, CSW Guidance Specialist; Dominic Martinelli, Sex Offender Program Counselor; and S. Carter, S.C.C., Oneida Correctional Facility) pursuant to 42 U.S.C. § 1983, alleging various violations of his federal/constitutional rights. On July 17, 2002, defendants filed a motion to dismiss the second amended complaint pursuant to Fed.R.Civ.P. 12. (Docket No. 25.) By Report-Recommendation dated January 22, 2003, the Honorable Gary L. Sharpe, United States Magistrate Judge, now District Court Judge, recommended that the defendants' motion to dismiss be granted. (Docket No. 48.) Plaintiff has filed objections to the Report-Recommendation. (Docket No. 50.) FN1
FN1. Also pending is a motion for preliminary injunctive relief filed by plaintiff. (Docket No. 54.) That motion will be decided in a separate order, in light of the disposition of defendants' motion to dismiss.
II. RULE 12(B)(6) STANDARD
[1] In deciding a Rule 12(b)(6) motion, a court “must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant; it should not dismiss the complaint ‘unless it appears beyond a reasonable doubt that the plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief.’ ” Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); see also Kaluczky v. City of White Plains, 57 F.3d 202, 206 (2d Cir.1995). It should be noted, however, that where a complaint is submitted pro se,“the allegations of such a complaint, ‘however inartfully plead,’ are held to ‘less stringent standards than formal pleadings drafted by lawyers.’ ” Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). Thus, in cases where a pro se plaintiff is faced with a motion to dismiss, it is appropriate for the court to consider materials outside of the complaint to the extent they “are consistent with the allegations in the complaint.” See Donahue v. United States Dep't of Justice, 751 F.Supp. 45, 49 (S.D.N.Y.1990) (considering pro se plaintiff's papers filed in opposition to motion to dismiss); see also Tsai v.

Rockefeller Univ., 137 F.Supp.2d 276, 280 (S.D.N.Y.2001) (same); Williams v. Koenigsmann, No. 03 Civ 5267, available at 2004 WL 315279, at *1 n. 1 (S.D.N.Y. Feb. 18, 2004) (same); Supinski v. Merrill Lynch & Co., No. 00CV7363, available at 2001 WL 930779, at *1 n. 2 (E.D.N.Y. Aug. 13, 2001) (same). Thus, in laying out the factual background of the case, for the purposes of deciding defendants' pending motion to dismiss, the factual allegations contained in plaintiff's complaint and opposition papers will be considered. (Docket Nos. 13, 44.)
III. FACTUAL BACKGROUND
Taken in the light most favorable to plaintiff, the non-moving party, the following are the facts.
Plaintiff, at all relevant times, was incarcerated at Oneida Correctional Facility *122 (“OCF”). On April 20, 2000, plaintiff's counselor at OCF referred him to the Sex Offender Counseling Program (“SOCP”). (Docket No. 13, ¶ 9.) Successful completion of the SOCP requires, among other things, the participant to accept responsibility for the sexually offending behavior that resulted in his or her incarceration, and to divulge any history of sexually offending behavior, including acts or conduct for which the participant was not or has not been criminally charged. Accordingly, “[a]ny offender who wishes to participate in the [SOCP] must sign a Waiver of Partial Confidentiality.” (Docket No. 44, App.)
According to the SOCP policy and procedure manual, if an inmate elects to participate and disclose the information outlined above, program counselors “are required to report evidence of child physical and/or sexual abuse that has occurred or is planned and any specific details of previous crimes for which the offender has not been charged.” Id. The manual further notes that “an inmate who discloses the details of any prior crime(s), must be reported to the appropriate authorities so that society will be protected.” Id.
Plaintiff informed the counselor that he was not guilty of any sex crime, including the one prompting his current incarceration, and that he did not wish to divulge any past information that could prompt further criminal charges. Plaintiff also informed the counselor that he was incarcerated as a result of a

plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), under which plaintiff did not have to admit guilt. Accordingly, plaintiff informed the counselor he would not enter the SOCP. (Docket No. 13, ¶ 9.) According to the SOCP policy and procedure manual, inmates who refuse to participate in the program “should be made aware of the negative impact his/her decision may have on .... Time Allowance Committee decisions.” (Docket No. 44, App.)
Though defendants assert that plaintiff has not alleged any causal connection between the refusal to divulge a sexual history and the loss of good time credits one would suffer as a result thereof, a cursory scan of the allegations reveals that this is not true. Plaintiff alleges that “[o]n April 20, 2000, his counselor advised [him] in writing that his refusal will result in loss of good time [credits].” (Docket No. 13, ¶ 10) (emphasis added). Plaintiff claims that he thereafter wrote several letters to OCF administrators explaining the situation as he perceived it. On November 9, 2000, he claims to have received a letter from defendant Yourth, who informed him “that his failure to participate in the [SOCP] will result in [a] negative impact on his earning good time.” Id. at ¶ 12 (emphasis added). On February 14, 2001, plaintiff alleges to have written defendant Carter, stating his desire to participate in the program if were allowed to not admit his guilt to the crime for which he was incarcerated, and divulge a sexual history, including acts for which no criminal charges had yet been brought. Id. at ¶ 13. On March 20, 2001, plaintiff alleges to have written a Department of Corrections' attorney regarding his situation. He claims to have been informed by this attorney “that he must participate in the SO[C]P or lose his good time and other privileges.” Id. at ¶ 14 (emphasis added).FN2
FN2. Plaintiff has submitted more concrete evidence of the causal connection between the refusal to participate in the SOCP and the loss of good time credits that would occasion such a refusal. Specifically, attached to his proposed third amended complaint was an apparently internal Department of Corrections' memorandum in which it was stated that “Sr. Correction Counselor Yourth,” who is a defendant in

this case, has, together with “Deputy Commissioner R. Broddus[,] ... directed that all good time is to be taken whenever it can be documented that an inmate refused to participate in recommended Sex Offender Programs.” (Docket No. 71, atta ched.) However, because plaintiff's motion for leave to file a third amended complaint was denied, his motion to attach that document to the third amended complaint was moot. Plaintiff has not made any motion to attach said document to the second amended complaint, the subject of defendants' motion to dismiss. Nevertheless, as plaintiff adequately alleges that his good time credits were threatened as a direct and automatic result of his invocation of his privilege against self-incrimination and failure to participate in the SOCP, it would appear that no such motion need be made at this time.
*123 On April 23, 2002, plaintiff filed a second amended complaint, asserting causes of action pursuant to 42 U.S.C. § 1983.FN3 In the complaint, plaintiff contends that the program, by requiring him to divulge a history of sexual conduct, including illegal acts for which no criminal charges had been brought, or else face a loss of good time credits, violated his Fifth Amendment privilege against selfincrimination. The remainder of the causes of action asserted by plaintiff in the second amended complaint are unclear, but it appears he is alleging that his privacy, equal protection, and due process rights were all violated.
FN3. After filing the second amended complaint, plaintiff's good time credits were withheld by the prison's Time Allowance Committee, which decision was affirmed at the highest levels of the administrative process. Plaintiff sought to add this allegation in a proposed third amended complaint. However, such an allegation would have been largely irrelevant to plaintiff's claim that the SOCP, with its requirement that participants divulge incriminating statements or else face a loss of good time credits, violates his Fifth Amendment privilege against selfincrimination, the only claim substantively discussed herein. Such an allegation would

have instead been relevant to plaintiff's claim that he was deprived of a constitutionally protected interest when his good time credits were disallowed, in violation of his due process rights. Plaintiff's motion to file a proposed third amended complaint was denied on the grounds that, even with such an allegation, plaintiff failed to set forth a cognizable due process claim. Therefore, the fact that plaintiff has now actually suffered a loss of good time credits has no negative impact on his ability to bring a Fifth Amendment claim pursuant to 42 U.S.C. § 1983.
As relief, plaintiff seeks, inter alia: (1) a declaratory judgment that the SOCP, with its requirement that participants divulge sexual histories, including sex acts for which no criminal charges have been brought, violates his Fifth Amendment privilege against self-incrimination; (2) injunctive relief barring defendants from continuing the SOCP in its present form, with such requirement; (3) compensatory damages in the amount of $1.5 million; and (4) punitive damages in the amount of $5 million. (Docket No. 13, Relief Requested, ¶ 2; Injunctive Relief, Part (B); Damage Relief, ¶¶ 1-2.)
IV. MAGISTRATE JUDGE'S REPORTRECOMMENDATION
On January 22, 2003, a written report was issued recommending that plaintiff's complaint be dismissed in its entirety for failure to state a claim upon which relief could be granted. (Docket No. 48.) With respect to plaintiff's Fifth Amendment claim, it was found that plaintiff had not suffered any adverse action as a result of his failure to participate in the SOCP, and that defendants had taken no actions to compel plaintiff to incriminate himself. It was also found that plaintiff's remaining claims-involving due process, equal protection, and the right to privacywere without merit. It was found that the complaint, even liberally construed, failed to state a claim upon which relief could be granted.
On March 3, 2003, plaintiff filed objections to the Report-Recommendation. (Docket No. 50.)
*124 V. DISCUSSION

Agreement is expressed with the conclusion that plaintiff's causes of action involving the violation of the rights to privacy, due process, and equal protection cannot be proven on the pleadings and must be dismissed. Agreement is also expressed with the opinion that plaintiff's Fifth Amendment claim, insofar far as it relates to the denial of his parole, must be dismissed.FN4 The recommendation of dismissal as to plaintiff's Fifth Amendment claim, insofar as it relates to the automatic loss of good time credits an SOCP participant would suffer as a result of a refusal to participate in the program, however, is rejected.
FN4. As was noted in the ReportRecommendation, because it is undisputed that many factors inform the decision of whether to grant or deny an inmate parole, and because it is not sufficiently alleged that plaintiff's refusal to participate in the SOCP, in and of itself, directly and automatically resulted in parole being denied, that portion of his Fifth Amendment claim must be dismissed.
There is no dispute that the SOCP requires participants to admit their guilt to the crime for which they are incarcerated, and to divulge a history of sexual conduct, including acts for which no criminal charges have been brought. Plaintiff claims that this requirement, and the consequences he was claimed to have been told would directly and automatically follow a refusal to comply with the same, violated his Fifth Amendment privilege against selfincrimination.
The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. CONST. AM. V. The Supreme Court has expanded on this language, holding that “[t]he Amendment not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973). The overall inquiry in this casewhether “the alterations in the [SOCP] were so great as to constitute compulsion for the purposes of the

Fifth Amendment privilege against selfincrimination,” McKune v. Lile, 536 U.S. 24, 49-50, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002), 536 U.S. at 49-50, 122 S.Ct. 2017 (O'Connor, J., concurring); United States v. Jones, 299 F.3d 103, 110 (2d Cir.2002) (“The Supreme Court has identified the key inquiry in determining whether a violation of the right against compelled self-incrimination has occurred ‘as whether the accused was deprived of his free choice to admit, to deny, or to refuse to answer’ ”) (quoting Garrity v. New Jersey, 385 U.S. 493, 496, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967))-is not in dispute. The legal standard defining the contours of that ultimate question, however, is unclear.
A. Preclusive Effect of McKune and Johnson
In the Report-Recommendation, it was found that the Supreme Court's plurality opinion in McKune “addressed this very issue.” (Docket No. 48, p. 4.) FN5 Because it *125 is not clear whether McKune was embraced as factually on point, or as providing the controlling legal standard, both will be addressed. While the Court in McKune was indeed confronted with a Fifth Amendment challenge to a sexual offender treatment program, and the consequences flowing from a refusal to participate therein, the prisoner in that case faced only the threat of a loss of privileges and a transfer to another facility as a result of his non-participation. Here, plaintiff is alleging he was faced with the threat of a loss of good time credits based on his refusal to participate in the SOCP, a distinction even the plurality in McKune found to be important when conducting its analysis:
FN5. In a prior order denying plaintiff's motion for preliminary injunctive relief, McKune was also cited as direct support for the holding that “[plaintiff's] claim that defendants may transfer [him] or take away privileges as a result of his failure to participate in the [SOCP] does not establish irreparable harm.” (Docket No. 45.) To the extent such prior order can be interpreted to foreclose plaintiff's Fifth Amendment claim as it relates to a loss of good time credits, it is here clarified to not so foreclose such a claim, see infra. To the extent such prior order can be interpreted to foreclose any Fifth Amendment claim based on a transfer or the loss of any prison privileges, it is

reaffirmed.
In the present case, respondent's decision did not extend his term of incarceration. Nor did his decision affect his eligibility for good-time credits or parole. Respondent instead complains that if he remains silent about his past crimes, he will be transferred from the medium-security unit-where the program is conducted-to a less desirable maximum-security unit. McKune, 536 U.S. at 38, 122 S.Ct. 2017 (Kennedy, J., plurality). Therefore, McKune was not factually on point with the instant case.
Likewise, Johnson v. Baker, 108 F.3d 10 (2d Cir.1997) (per curiam), also cited in the ReportRecommendation, is not factually consistent with the instant case and does not mandate dismissal of plaintiff's Fifth Amendment claim. In Johnson, a prisoner challenged a correctional facility's decision to deny him entrance into a program which would have permitted him to spend extensive periods of time with his family. 108 F.3d at 11. Entry into the program required the prisoner to admit his guilt to sexual offenses as part of a treatment program. Id. At the time of his refusal, the prisoner's appeal was still pending. Id. The prisoner refused to do so, and claimed that the resulting denial of his entrance into the program violated, inter alia, his Fifth Amendment privilege against self-incrimination. Id.
The Second Circuit, reaffirming its earlier decision in Asherman v. Meachum, 957 F.2d 978 (2d Cir.1992), “held that state officials are permitted to take adverse administrative action for failure to respond to inquiries, even where the answers might tend to incriminate, so long as the adverse consequence is imposed for failure to answer a relevant inquiry and not for refusal to give up a constitutional right.” Johnson, 108 F.3d at 11. Finding that the correctional officials had not taken any prohibited steps to elicit incriminating answers from the prisoner, and recognizing that an inmate unwilling to admit his guilt to offenses for which he was convicted was also unlikely to benefit from the rehabilitative process, the court found no Fifth Amendment violation. Id. at 11-12.
Johnson, however, falls within the factual gambit of the judgment in McKune. Justice O'Connor, despite disagreeing with the McKune plurality as to the

proper legal standard to be employed, did agree that the facts presented-the threat of a transfer and losing certain privileges that did not affect the term of incarceration-did not amount to a finding of unconstitutional compulsion. Thus, a majority of the Court did agree that adverse consequences that do not affect the length of imprisonment, resulting from a prisoner's failure to participate in a sexual offender treatment program, are not sufficient to form the basis of a Fifth Amendment claim. In Johnson, the privilege at issue was the denial of admission to a family visitation program, which also did not affect the term of incarceration. Thus, Johnson is factually consistent with McKune (and falls within the binding effect of the *126 Court's judgment on the facts) and factually inconsistent with the instant case.FN6
FN6. Indeed, had the consequences of plaintiff's refusal to participate in the SOCP been a mere transfer to another facility or a loss of privileges, the judgment in McKune would mandate dismissal of his Fifth Amendment claim as well. See Searcy v. Simmons, 299 F.3d 1220, 1225 (10th Cir.2002).
B. Legal Standard and Application
The plurality opinion in McKune also fails to set forth the controlling legal standard by which to adjudge prisoners' Fifth Amendment compulsion challenges to a sexual offender treatment program. According to the plurality, “[d]etermining what constitutes unconstitutional compulsion involves a question of judgment: Courts must decide whether the consequences of an inmate's choice to remain silent are closer to the physical torture against which the Constitution clearly protects or the de minimis harms against which it does not.” McKune, 536 U.S. at 41, 122 S.Ct. 2017. To make this determination, the plurality borrowed language from Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), proclaiming that “[a] prison clinical rehabilitation program, which is acknowledged to bear a rational relation to a legitimate penological objective, does not violate the privilege against selfincrimination if the adverse consequences an inmate faces for not participating are related to the program objectives and do not constitute atypical and significant hardships in relation to ordinary incidents of prison life.” McKune, 536 U.S. at 37-38, 122

S.Ct. 2017. This very language, or significant parts thereof, was quoted in the Report-Recommendation as representing the standard under which plaintiff's Fifth Amendment claim was to be evaluated.
[2][3] However, the plurality opinion garnered the support of only four Justices, one shy of a majority. Justice O'Connor wrote separately, concurring with the plurality only in the judgment. “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’ ” Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)); see also O'Dell v. Netherland, 521 U.S. 151, 160, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997). Justice O'Connor did not join the plurality's characterization of the legal standard to be employed when evaluating Fifth Amendment compulsion challenges by prisoners, instead agreeing with the dissent that the standard is less restrictive than the “atypical and significant hardships” standard announced in Sandin. McKune, 536 U.S. at 48, 122 S.Ct. 2017 (O'Connor, J., concurring). She concurred in the judgment only because she felt that the particular consequences threatened for the inmate's refusal to participate in the program-a loss of privileges and transfer to another facility-were not grounds for a Fifth Amendment compulsion claim. Thus, McKune is not only factually inapposite to the instant case, it also fails to provide a controlling legal standard for compulsion challenges such as the one lodged by plaintiff here, the latter of which has been recognized by the Second Circuit. See Jones, 299 F.3d at 111 n. 2 (“[T]he Supreme Court in [McKune] was unable to reach a conclusive decision ‘on the question of what standard to apply when evaluating compulsion for the purposes of the Fifth Amendment privilege against self-incrimination in a prison setting’ ”) (quoting McKune, 536 U.S. at 48, 122 S.Ct. 2017 (O'Connor, J., concurring)). “When it is not possible to discover *127 a single standard that legitimately constitutes the narrowest grounds for a decision on that issue, there is then no law of the land because no standard commands the support of a majority of the Supreme Court.” United States v. Alcan Aluminum Corp., 315 F.3d 179, 189 (2d Cir.2003).

[4] Therefore, the proper legal standard for analyzing plaintiff's Fifth Amendment compulsion claim is in need of determination. The Second Circuit has yet to rule on this issue, see Jones, 299 F.3d at 111 n. 2 (“We need not take any position on this specific question here, and we do not”), and such standard need not be determined here. Suffice it to say that no matter which principles from Fifth Amendment jurisprudence are adopted, requiring plaintiff as part of the SOCP to divulge a history of sexual conduct, including illegal acts for which no criminal charges have been brought, or else face a loss of good time credits, violates his Fifth Amendment privilege against self-incrimination.
1. McKune plurality: “atypical and significant hardships” (Sandin)
Though the standard announced by the plurality in McKune did not command majority support as representing the standard applicable to Fifth Amendment compulsion challenges by prisoners, it is appropriate to make an independent determination as to whether it is indeed the standard, as was found in the Report-Recommendation. As noted, the plurality in McKune stated that no unconstitutional compulsion was present where the consequences an inmate faces for failure to participate in a prison rehabilitative program “are related to the program objective and do not constitute atypical and significant hardships in relation to the ordinary incidents of prison life.” 536 U.S. at 27, 122 S.Ct. 2017.
[5] This standard, however, was borrowed from Sandin, which purported to determine the proper standard to apply to prisoner due process challenges to prison regulations. For ordinary procedural due process claims, the three-step approach from Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), is utilized to determine if a plaintiff's constitutional rights were violated by a particular state action. The first step of that approach involves identifying the private interest affected by the complained of state action. City of Los Angeles v. David, 538 U.S. 715, 123 S.Ct. 1895, 1896, 155 L.Ed.2d 946 (2003). The interest so identified must be a constitutionally protected property or liberty interest. Weinstein v. Albright, 261 F.3d 127, 134 (2d Cir.2001). The “atypical and significant

hardships” language which the plurality in McKune incorporated as the standard for assessing Fifth Amendment compulsion challenges by prisoners came from Sandin's definition of a cognizable liberty interest. Particularly, in using the language, the majority in Sandin attempted to alleviate concern that the Court's prior decisions-which in defining prisoner state-created liberty interests focused on whether a particular regulation used mandatory or discretionary language-had lowered the hurdle too much for prisoners asserting due process claims.FN7
FN7. The Court in Sandin also viewed restrictively the other two Mathews steps in the prison context, taking great pains to highlight the propriety in deferring to the judgment of prison officials and their punishment of inmates, because doing so “effectuates prison management and prisoner rehabilitative goals.” 515 U.S. at 485, 115 S.Ct. 2293. Such a view would appear to significantly disadvantage a prisoner trying to demonstrate that alternative methods were available to prison officials, the second Mathews step. The level of deference afforded to the officials would also appear to take out of consideration the third Mathews step, whether any alternatives could be practically borne by prison officials without hindering their stated interest in effectively managing prisons and advancing rehabilitative goals. Thus, in the due process context, Sandin dramatically reduced a prisoner's chances of success, not only by setting the bar higher on whether an inmate can demonstrate a liberty interest, but also by all but assuming that the prisoner cannot prevail on any other Mathews step.
*128 “However, nowhere in the relevant jurisprudence does the Supreme Court even hint that an individual attempting to show a violation of his Fifth Amendment privilege must have a protected liberty interest for compulsion to occur,” Lile v. McKune, 224 F.3d 1175, 1183 (10th Cir.2000); see also McKune, 536 U.S. at 58, 122 S.Ct. 2017 (Stevens, J., dissenting) (“None of our opinions contains any suggestion that compulsion should have a different meaning in the prison context. Nor is there any support in our Fifth Amendment jurisprudence for the proposition that nothing short of losing one's

livelihood is sufficient to constitute compulsion.”); Leading Cases, I. Constitutional Law, F. SelfIncrimination, 116 HARV. L. REV. 302, 309 (2002) (“[T]here is no support for the proposition that only government actions that violate the Due Process Clause can constitute compulsion”), and the McKune plurality's reasons for urging such a merger are neither compelling nor clear.
2. Application of Fifth Amendment principles
Even though the “atypical and significant hardships” standard for Fifth Amendment compulsion challenges by prisoners was not adopted by a majority of the Supreme Court, and in fact has not been embraced at any noticeable level by any federal court, the analytical conclusions that the plurality reached under that standard did come from analytical questions posed in Fifth Amendment jurisprudence, and are therefore appropriate to address in the overall compulsion inquiry. Admittedly, the plurality in Sandin framed its opinion, to a large part, in the context of its conclusion that great deference must be given to the decisions of prison officials. However, the need and extent of this deference is effectively embodied in the balancing test discussed below, see infra, and any concern over being able to separate those analytical conclusions from the Sandin context in which they were rendered is allayed through the examination of two post-McKune decisions, which disagreed that Sandin set the appropriate standard but nonetheless agreed, sometimes in a roundabout or indirect fashion, with many of the analytical conclusions reached by the plurality. See Ainsworth v. Stanley, 317 F.3d 1 (1st Cir.2002); Searcy v. Simmons, 299 F.3d 1220 (10th Cir.2002). The use of those cases, in which the adverse consequences suffered by the prisoner were the loss of good time credits or denial of parole, also adequately addresses any concerns over assessing the plurality's analytical conclusions outside the context of transfers and the loss of prison privileges. Thus, those questions and the conclusions they prompted in the McKune plurality opinion and elsewhere are indeed appropriate to assess in determining whether plaintiff's Fifth Amendment claim is viable.
The order in which such questions and conclusions are assessed represents an effort to achieve coherency and avoid repetition. Thus, the myriad and often overlapping Fifth Amendment principles are placed

into four categories for the purpose of applying them to plaintiff's claim: (a) the classification of the threatened adverse consequence suffered by plaintiff; (b) the severity of the threatened adverse consequence suffered by plaintiff; (c) whether plaintiff had a “choice” to participate in the “voluntary” SOCP; and (d) whether *129 the State's penological interests are rationally related to the SOCP and its requirements, and whether alternative means exist to advance those interests that do not infringe upon plaintiff's constitutional privilege against self-incrimination. Particularly instructive in making these determinations are the discussions and analytical conclusions from: (1) the plurality opinion and post-McKune cases that embraced its analytical conclusions; and (2) the Tenth Circuit Court of Appeals decision that spawned McKune, Lile, 224 F.3d 1175, with which the dissent seemed to largely agree. The use of Lile is justified in light of the plurality's and concurrence's recognition that the analysis in McKune did not involve adverse consequences that could extend the term of an inmate's incarceration, and helpful because the court set forth virtually the entire universe of compulsion principles, and found, incidentally, that the sexual offender treatment program at issue, and the transfer and loss of prison privileges that directly resulted from the inmate's refusal to incriminate himself as part of the program, violated every single one of them.FN8
FN8. It is worth noting that this decision, like the one in Lile, does not purport to set forth the concise and definitive standard for adjudging Fifth Amendment compulsion challenges by prisoners. Developing such a standard from “an already confused area of jurisprudence,” McKune, 536 U.S. at 46, 122 S.Ct. 2017 (Kennedy, J., plurality), will be left to higher courts. Rather, like Lile, this decision will take a more comprehensive approach, applying the vast sea of compulsion principles applied by the various opinions in McKune and the federal appellate decisions that followed, and finding that the SOCP, and the loss of good time credits imposed automatically and directly for plaintiff's failure to give up his right to silence and participate in the program, violate every single one of them.

(a) classification of adverse consequence suffered by plaintiff
The first analytical question relevant to whether defendants sought to impermissibly compel plaintiff to incriminate himself is whether the loss of good time credits is more properly characterized as a mere loss of a potential benefit, or as a penalty. The plurality in McKune classified the possible adverse consequences in its case-a transfer to a highersecurity facility and loss of privileges-inversely, stating that remaining in a medium-security facility and maintaining a certain level of privileges were “minimal incentives” to participate in the sexual offender treatment program. 536 U.S. at 29, 122 S.Ct. 2017. Similarly, in Searcy, a case where an inmate challenged the disallowance of good time credits as a result of his refusal to participate in the program, the Tenth Circuit Court of Appeals pointed out that in Kansas (as in New York), good time credits are a matter of legislative grace, and participation in the program does not guarantee an award of the same. 299 F.3d at 1226. Thus, the court referred to the possibility of an award of these non-guaranteed good time credits as an “opportunity” of which the prisoner could “take advantage” by participating in the program. Id. Likewise, in Ainsworth, where the court was faced with a challenge by an inmate who alleged he was denied parole as a direct result of invocation of his right to silence, the First Circuit Court of Appeals pointed out that the denial of parole was not a new or additional penalty imposed by correctional officials, but rather relief from a sentence already imposed. 317 F.3d at 5.
The Tenth Circuit in Lile took issue with the State's argument that the consequences suffered for failure to participate in the program were “a part of the Department's system of privileges and incentives utilized to encourage inmates to participate in programs,” noting first that the prisoner had been placed in a medium-security facility before officials recommended he participate in the program, and *130 that the program was not part of his sentence or otherwise court-ordered. 224 F.3d at 1188. The court then pointed out that the consequences for failing to participate in this recommended program were “exactly the same as those ‘punishments' automatically imposed upon a prisoner for termination from a work assignment for cause,

offenses for which felony charges are filed by a state prosecutor, or disciplinary convictions for offenses such as theft, drunkenness, use of narcotics, sodomy, riot, arson, assault, sexual activity, a relationship with staff, and possession of contraband.” Id. at 118889. Thus, the court characterized the transfer and loss of prison privileges suffered by the inmate as “imposing penalties.” Id. at 1189.
The dissent in McKune expanded on this rationale, noting that the inmate's medium-security classification, which was attained only after achieving and maintaining good behavior for a period of six years, “form[s] the baseline against which any change [in circumstances resulting from the invocation of the Fifth Amendment privilege] must be measured[.]” McKune, 536 U.S. at 64, 122 S.Ct. 2017. Departing from the classification solely because the inmate invoked his right to remain silent, the dissent stated, “surely constitutes punishment.” Id. Justice O'Connor, in her concurrence, also regularly referred to the transfer and loss of privileges as “penalties.” Id. at 50, 51, 52, 122 S.Ct. 2017. These arguments are here found to be compelling.
Relevant to this issue is whether the correctional officials, in meting out the adverse consequence, were doing so because of the inmate's invocation of his Fifth Amendment privilege-in which case such consequence sounds more in punishment-or because of some other reason-in which case it militates toward a loss of a potential benefit. In this regard, because the alleged motivations in McKune-bed space and control of prison privileges-are not at issue here, it is largely irrelevant except for the proposition that motivations are important. However, in a case where the motivations of correctional officials mirror those of defendants here, the Tenth Circuit in Searcy noted that the motivation in requiring the admission of a sexual history was to facilitate the rehabilitative process, and that no evidence had been presented that the program was being used “as a surreptitious means to obtain evidence for criminal prosecutions.” 299 F.3d at 1227; accord McKune, 536 U.S. at 34, 122 S.Ct. 2017 (noting that no evidence had been presented that information divulged in the program was used for later criminal prosecutions). Thus, despite the fact that refusal to participate in the program automatically resulted in the loss of good time credits, the court found this less attributable to a

motivation to penalize the prisoner for invoking his right to silence, and more “a consequence of his inability to complete the rehabilitation process the [officials] had determined ... [was] in the best interest for [the prisoner] and society.” Searcy, 299 F.3d at 1227; see also Johnson, 108 F.3d at 11 (“[S]tate officials are permitted to take adverse administrative action for failure to respond to inquiries, even where the answers might tend to incriminate, so long as the adverse consequence is imposed for failure to answer a relevant inquiry and not for refusal to give up a constitutional right”).
Here, “the question at hand is not whether [defendants] could have refused to extend [good time credits] in the first place, but rather whether revoking them at this point constitutes a penalty for asserting the Fifth Amendment privilege.” McKune, 536 U.S. at 66, 122 S.Ct. 2017 (Stevens, J., dissenting). The threat of losing good time credits is more properly classified as a penalty for his invocation of his right to silence than a stripping away of a benefit he potentially could have received*131 as a result of his participation in the SOCP. All else being equal, to the extent the question is posed in “but for” form, there is little doubt that plaintiff would not have had his good time credits threatened but for his failure to participate in the SOCP.
That plaintiff has not put forth any allegations that criminal prosecutions regularly result from information disclosed in the SOCP is irrelevant. Because such information undoubtedly could be used in a future prosecution, despite it never before having been done, McKune, 536 U.S. at 35, 122 S.Ct. 2017 (recognizing that State has left option to prosecute open), such a fact can have no more than a limited impact on the analysis. In fact, the SOCP policy and procedure manual requires that SOCP counselors report to authorities “evidence of child physical and/or sexual abuse that has occurred or is planned and any specific details of previous crimes for which the offender has not been charged.” (Docket No. 44, App.)
One can wax philosophical all he or she wants as to the true motivations of the correctional officials, but it takes little imagination to conceive that such officials would threaten or impose the loss of good time credits as a direct result of the inmate's failure to participate in a “recommended” program.FN9 That an

unheeded “recommendation” automatically results in such a consequence informs plaintiff and all other inmates following him that the “recommendation” is, in actuality, an order, a proposition repeatedly highlighted by the dissent in McKune. See McKune, 536 U.S. at 56, 60, 62, 122 S.Ct. 2017 (characterizing recommendation to participate in program as an order). This is not to say that such motivations are not grounded in good intentions. Indeed, no one can properly say that convicted sex offenders should not seek treatment, which may certainly involve an acceptance of responsibility, or should not be advised, in the strongest terms possible, that such treatment may benefit them mentally as a person who will once again live in the free world. However, when the refusal to embrace such well-intentioned advice or encouragement is directly greeted with an executed threat, one cannot help but conclude-in logic, common sense, and the circumstances-that the refusing inmate has been penalized.
FN9. Indeed, the documentation that plaintiff attempted to attach to his proposed third amended complaint says just that. See supra note 1.
(b) the severity of the adverse consequences suffered by plaintiff
That plaintiff was threatened with a penalty for invoking his right to silence, however, does not automatically mean that the Fifth Amendment was violated. Courts have found it appropriate to assess the severity of the penalty, in recognition of the reality that a prisoner is less likely to have felt “compelled” if the consequence attached to refusing to waive the privilege against self-incrimination was not of a serious nature. In McKune, the plurality and concurrence heatedly disagreed with the dissent and the court in Lile over whether a transfer and loss of prison privileges were sufficiently severe adverse consequences to give rise to a Fifth Amendment claim. The plurality, in determining the nature of the consequences, expressly noted that the inmate's “decision not to participate in the Kansas SATP did not extend his term of incarceration. Nor did his decision affect his eligibility for good-time credits or parole.” McKune, 536 U.S. at 38, 122 S.Ct. 2017. Justice O'Connor was also cautious to exclude from her non-severe determination consequences like the one suffered by plaintiff here, noting that penalties

such as “longer incarceration and execution ... are far greater than *132 those we have already held to constitute unconstitutional compulsion in the penalty cases.” Id. at 52, 122 S.Ct. 2017 (O'Connor, J., concurring).
Ainsworth and Searcy do not directly address this issue, instead obliquely citing the fact that good time credits and parole are “matter[s] of legislative grace.” See Searcy, 299 F.3d at 1226. Such a statement, however, tends to divert attention away from the relevant inquiry-whether plaintiff was threatened with an adverse consequence for invoking his right to silence. As noted, supra, whether plaintiff had a constitutionally protected interest in good time credits, while perhaps relevant in the due process context, is not relevant in the Fifth Amendment context. Taking the allegations in plaintiff's complaint as true, his good time credits were threatened directly as a result of his decision to invoke his right to silence. The allowance of such credits would have reduced his term of incarceration. One can hardly think of more serious consequences attached to invocation of the privilege.
To the extent the severity of the consequence is judged from the standpoint of a reasonable prison inmate, there is little doubt that a prisoner would rather have good time credits, and be eligible for release from incarceration at an earlier date, than lose good time credits, or have them disallowed. It is noteworthy in this sense to distinguish the adverse consequences at issue here-the loss of good time credits-from the ones both the plurality and concurrence in McKune-a transfer and reduction in privileges-found insufficient to form the basis of a compulsion challenge. A transfer and loss of privileges does not change the overall fact that the prisoner is still incarcerated. Such losses may provide some background for a decision as to whether good time credits will be allowed, or whether the prisoner will be awarded parole, but only indirectly. The loss of good time credits in the first instance, as plaintiff here faced, would change the fact of incarceration to the extent such credits impact the length of incarceration. Therefore, the consequences faced by plaintiff for his invocation of the privilege against self-incrimination were serious and potent.
(c) whether plaintiff had a “choice” to participate in the “voluntary” SOCP

If plaintiff truly had a choice whether to participate in the SOCP, one would be hard pressed to find that defendants attempted to compel self-incrimination. There is no question that the SOCP was not part of plaintiff's sentence. He was instead “recommended” to partake in the program by a counselor. According to the plurality in McKune, this “recommended” feature of a program is enough to find that a prisoner is simply given a voluntary choice. See McKune, 536 U.S. at 44, 122 S.Ct. 2017 (“If respondent was not compelled to participate in the [program], his participation was voluntary in the only sense necessary for our present inquiry”). As the plurality stated, “[i]t is beyond doubt, of course, that [the inmate] would prefer not to choose between losing privileges and accepting responsibility for his past crimes. It is a choice, nonetheless, that does not amount to compulsion.” Id. at 45, 122 S.Ct. 2017; accord Searcy, 299 F.3d at 1226 (“The fact that the [correctional facility] [would] not let [the inmate] complete the [program] unfettered by its more unpleasant aspects does not render his original choice to enter the program any less voluntary”); Ainsworth, 317 F.3d at 5 (finding significant fact that program was “voluntary,” not “assigned”).FN10
FN10. The Tenth Circuit's about-face regarding this and other analytical factors that go into the Fifth Amendment analysis is difficult to understand. In Lile, where the adverse consequences for failure to participate in the sexual offender treatment program were a transfer and loss of privileges, the Tenth Circuit noted the lack of a truly voluntary choice for the prisoner. In Searcy, where the adverse consequences were much more severe than those faced by the prisoner in Lile, and were in fact of the type from which the already-issued plurality and concurrence in McKune implicitly disclaimed its analysis, the Tenth Circuit stated that the inmate did indeed have a choice. Likewise, whereas the court in Lile found that a transfer and loss of prison privileges were penalties for invocation of the privilege against self-incrimination, the court in Searcy found that a loss of good time credits was “an opportunity” of which the prisoner failed to “take advantage” by invoking his right to silence. In light of the

facts that the plurality and concurrence hinted that the analysis may change if the adverse consequences were of the exact type faced by the court in Searcy, and that the standard announced by the court in Lile was used in determining if less serious adverse consequences were impermissible penalties in violation of the Fifth Amendment, it would seem to follow that the court in Searcy would set forth a standard either the same or less restrictive than the one announced in Lile.It did not do this, and the reasons for the court's departure from its own precedent are unclear.
This wooden application of the terms “voluntary” and “choice” is rejected, as it *133 has been in other analogous areas of the law where a person technically has a choice, but it is defined in such a way as to make the choice itself improper under the law. For example, assume that an employee-at-will has made substantial and successful efforts to ensure that her work product is competent. Assume further that this employee, however, has been subject to intolerable work conditions in the form of insulting and unwarranted verbal barrages, and hollow threats of termination, by her superiors. In a technical sense, this employee may “choose” to remain in her position, to which she has no entitlement but to which she is not in danger of being fired, or she may “choose” to quit her job. Assume that the employee “chooses” the latter option.
Under such circumstances, the law is clear that the employee may have a cause of action for constructive discharge, because her working conditions have become “so difficult or unpleasant that a reasonable person in [her] shoes would have felt compelled to resign.” See Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 89-90 (2d Cir.1996) (quoting Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir.1987)). In other words, the “choice” is not really a “choice” at all because, by their actions, the employee's supervisors have forced her hand.
Like the employee in the hypothetical is not entitled to her job, plaintiff is not entitled to good time credits, but, like the employee in the hypothetical, there is no evidence that he was in danger of losing such credits in the absence of the SOCP. Like the verbal assault and threats of termination that the

employee would have had to endure if she chose to keep her job, plaintiff here would have been forced to incriminate himself, opening himself up to possible future prosecution, if he opted to participate in the SOCP. The alternative for plaintiff, like the alternative of losing income faced by the employee in the hypothetical, was to lose the good time credits. A crucial difference does exist between the hypothetical and plaintiff's case-the constructively discharged employee has lost her job; plaintiff was faced with losing the opportunity to be free from incarceration at an earlier date.FN11
FN11. It is recognized that Justice O'Connor, in her concurring opinion in McKune, distinguished the consequence of losing one's job from the consequence of being transferred to a higher-security prison and losing prison privileges. See McKune, 536 U.S. at 49-51, 122 S.Ct. 2017. However, because she also implicitly grouped with the former penalties that could result in “longer incarceration [or] execution,” id. at 52, 122 S.Ct. 2017, an example of which is the disallowance of good time credits, it is here opined that she would not object to the use of the constructive discharge analogy.
*134 Also weighing against any finding that plaintiff truly had a choice in the matter was the automatic character of the adverse consequence, and that such consequence was directly imposed for plaintiff's invocation of his right to silence. Plaintiff has not just alleged that disallowance of good time credits might follow his refusal to participate in the recommended program. He has alleged that he was informed that such a disallowance would follow such a refusal. If true, such an allegation, paired with the severity of the consequence, see supra, would certainly render any “choice” to enter the SOCP far less than voluntary.
As the other side of the same coin, the fact that a refusal to participate in the SOCP, “standing alone and without regard to other evidence,” would result in the disallowance of good time credits also weighs toward finding that defendants attempted to force plaintiff to participate. See Lile, 224 F.3d at 1186 (internal quotations and citations omitted) (distinguishing Baxter v. Palmigiano, 425 U.S. 308,

96 S.Ct. 1551, 47 L.Ed.2d 810 (1976), relied upon by the plurality, where the Supreme Court found no compulsion because the inmate's silence, “in and of itself,” was not sufficient to warrant the complained of adverse consequence); id. (“In light of the fact that the Department would impose sanctions solely because Plaintiff wishes to remain silent invoke his Fifth Amendment right against self-incrimination, we cannot see how his participation in the SATP is truly voluntary”).
Thus, as noted, in light of the severe nature of the loss of good time credits, the automatic imposition of such loss, and the causal connection between the imposition of such loss and plaintiff's invocation of his Fifth Amendment right, the fact that participation in the SOCP was labeled “recommended” or “voluntary” is not dispositive of the issue of whether plaintiff truly had a choice in the matter. Such facts precipitate a finding that plaintiff was “ordered,” not recommended, to participate in the program. See Lile, 224 F.3d at 1187 (distinguishing Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998), relied upon the plurality, where the Supreme Court found no compulsion because the inmate was not ordered to do anything, and his participation in a clemency interview was not determinative of whether he would be granted release); McKune, 536 U.S. at 60, 122 S.Ct. 2017 (Stevens, J., dissenting) (same).
(d) balancing approach
Even though every Fifth Amendment issue addressed thus far has been resolved in plaintiff's favor, “it is [still] appropriate to balance the prison's penological interests against [plaintiff's] constitutional rights.” Lile, 224 F.3d at 1190. Though the McKune dissent's reluctance at using such a balancing test, because “[t]he State's interest in law enforcement and rehabilitation are present in every criminal case[,] [and] [i]f those interests were sufficient to justify impinging on prisoners' Fifth Amendment rights, inmates would soon have no privilege left to invoke,” McKune, 536 U.S. at 69, 122 S.Ct. 2017, is shared, the test will nonetheless be employed both “[b]ecause of the institutional context of this case and the great deference that is owed to the management decisions and policies of prison officials,” Lile, 224 F.3d at 1190, and because such interests and such deference were the most constant and consistent

factors cited by the McKune plurality as support for its opinion.
*135 As an initial matter, such interests are worth defining. The asserted interest in the SOCP, and its requirement that a participant divulge potentially incriminating information or else face a loss of good time credits, is not the effective management of prisons. Rather, the interest for such a program and its requirements must be derived from the State's desire to rehabilitate sex offenders, thereby ensuring the safety of the public when such offenders are eventually released from incarceration.
It is also worth pointing out that these interests are indeed legitimate. As the plurality in McKune pointed out, “[s]ex offenders are a serious threat in this Nation[,]” as evidenced by the fact that their representation in the prison population has “increased at a faster rate than for any other category of violent crime.” 536 U.S. at 32, 122 S.Ct. 2017. Further, “a majority of reported forcible sexual offenses were committed against persons under 18 years of age[,]” and “[n]early 4 in 10 imprisoned violent sex offenders said their victims were 12 or younger.” Id. at 32-33, 122 S.Ct. 2017. Moreover, as noted by the plurality, sex offenders are more likely than any other criminal offender to repeat their crimes once released, and sexual offender treatment programs can aid in the reduction of such recidivism. Id. at 33, 122 S.Ct. 2017. “An important component of [such] ... programs requires participants to confront their past and accept responsibility for their misconduct.” Id. Thus, a sub-interest of the overall general rehabilitation interest, and the focus of the analysis below, is the State's interest in requiring sex offenders, as part of a treatment program, to divulge a sexual history, including criminal acts for which they have not been criminally charged, as part of the overall effort to rehabilitate such offenders in preparation for their re-entry into society.
Though the courts in Lile and Ainsworth stated the components of the balancing test in different ways, both courts cite as authority for the test the Supreme Court's decision in Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). See Ainsworth, 317 F.3d at 5 (quoting Beauchamp v. Murphy, 37 F.3d 700, 705 (1st Cir.1994) (citing Turner, 482 U.S. at 89-91, 107 S.Ct. 2254)); Lile, 224 F.3d at 1190 (quoting and citing Turner, 482

U.S. at 89-91, 107 S.Ct. 2254). These components can be paraphrased as follows: (1) whether there is a “valid, rational connection” between the SOCP and its requirements and the State's interests in requiring program participants to divulge their sexual histories as part of the rehabilitative process; (2) whether there are alternative means by which plaintiff could have asserted his constitutional privilege against selfincrimination, in light of the deference accorded to prison officials; (3) “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally”; and (4) whether there exist “obvious, easy alternatives” that “fully accommodate[ ] the prisoner's rights at a de minimis cost” to the State's interest in requiring program participants to divulge their sexual histories as part of the rehabilitative process. See Turner, 482 U.S. at 89-91, 107 S.Ct. 2254; Ainsworth, 317 F.3d at 5; Lile, 224 F.3d at 1190.
As noted supra, there does exist a valid, rational connection between the SOCP, along with its requirements, including the threat faced for nonparticipation, and the State's interest in requiring program participants to divulge their sexual histories as part of the larger interest in rehabilitating prisoners for safe return to society. With respect to the second Turner component, plaintiff could not maintain his privilege against self-incrimination and, at the *136 same time, participate in the SOCP. There is no evidence regarding the impact accommodating plaintiff's constitutional right will have on inmates, prison staff, and the resources of the facility. However, the Court in Turner, in announcing this component, expressed concern for situations where an accommodation would have a “ripple effect” throughout the prison, thereby possibly straining the facility's ability to cope with the change. With no evidence of this possibility, this component appears to be irrelevant.
It is the fourth Turner factor-whether there exist “obvious, easy alternatives” that “fully accommodate[ ] the prisoner's rights at a de minimis cost” to the State's interest in requiring program participants to divulge their sexual histories as part of the rehabilitative process-that has sparked the most debate. The most suggested alternative is the offering to SOCP participants of use immunity for any statements about their sexual history they make

during the course of the program. Where use immunity is offered to a person, “a [S]tate may validly insist on answers to even incriminating questions ..., as long as it recognizes that the required answers may not be used in a criminal proceeding.” Minnesota v. Murphy, 465 U.S. 420, 436 n. 7, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984).
While the court in Ainsworth declined to address whether granting use immunity was a viable alternative to requiring otherwise naked disclosures of incriminating statements, 317 F.3d at 5 (stating that such an issue was for the state to decide), the plurality in McKune found that a State's decision to not offer use immunity for inmates participating in sexual offender treatment programs was valid on two grounds. “First, the professionals who design and conduct the program have concluded that for [program] participants to accept full responsibility for their past actions, they must accept the proposition that those actions carry consequences.... If inmates know society will not punish them for their past offenses, they may be left with the false impression that society does not consider those crimes to be serious.” McKune, 536 U.S. at 34, 122 S.Ct. 2017. “Second, while [the State] as a rule does not prosecute inmates based upon information revealed in the course of the program, [it] confirms its valid interest in deterrence by keeping open the option to prosecute a particularly dangerous sex offender.” Id. The plurality also noted that other states, as well as the Federal Bureau of Prisons, likewise do not offer immunity for statements made in their sexual offender treatment programs. Id.
The court in Lile, however, found that granting use immunity, which “has been contemplated by the Supreme Court since the very inception of the Fifth Amendment right against self-incrimination,” was an appropriate alternative to requiring inmates to disclose potentially incriminating information with no protection against its future use. 224 F.3d at 1191. Contrary to the plurality's reasoning, the dissent in McKune found, “[i]n fact, [that] the program's rehabilitative goals would likely be furthered by ensuring free and open discussion without the threat of prosecution looming over participants' therapy sessions” if use immunity were granted. 536 U.S. at 69-70, 122 S.Ct. 2017.
An alternative, offered the dissent, was simply

making the sexual offender treatment program truly voluntary, like the Federal Bureau of Prisons' program cited by the plurality. No use immunity is attached to participation in that program, but inmates are not compelled to participate. An inmate choosing to participate is transferred to a “more desirable” facility, “but if he refuses to participate in the first *137 place, ... he suffers no negative consequences.”
Id. at 71, 122 S.Ct. 2017.
Granting program participants use immunity for any statements they make in the course of the SOCP is an obvious, easy alternative that imposes a de minimis cost, if any, upon the State's valid penological interests. Simply because the exact statements of the inmate may not form the basis of a subsequent criminal prosecution does not mean that the inmate, in disclosing the statement, is not recognizing that he must accept responsibility for his actions. In fact, his decision to participate in the program itself-a recognition that he needs treatment-not to mention the fact that he is likely incarcerated for a substantial period of time as a result of a conviction of or plea bargain to a sex offense, both indicate that grasping the consequences of his actions is not only present, but foremost, in the inmate's mind.
[6] Furthermore, it is not as if the State, by offering use immunity, is foreclosed from prosecuting the inmate in the future on the admitted acts. It is helpful in this regard to distinguish use immunity from other types of immunity. As noted, a State offering an inmate use immunity-or its extension, derivative use immunity-would not be able to use the statements disclosed, or information derived from such statements, in a future prosecution. More sweeping than use/derivative use immunity is transactional immunity, which if offered precludes the State from later prosecuting an inmate for the offense disclosed. See United States v. Nanni, 59 F.3d 1425, 1431 (2d Cir.1995). Thus, an offer of only use immunity would not prohibit the State from conducting an independent investigation, and collecting independent evidence, of the divulged crimes, or in bringing charges. See Kastigar v. United States, 406 U.S. 441, 467, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) (holding that derivative use and use immunity did not violate the Fifth Amendment); see also id. (Marshall, J., dissenting) (“Today the court holds that the United States may compel a witness to give incriminating testimony and subsequently prosecute

him for crimes to which that testimony relates”).
Further, the purported need to keep open the possibility of prosecuting especially dangerous sex offenders for the statements disclosed does not seem to square with the assertion that the program is used for rehabilitation, and not as “a mere subterfuge for the conduct of a criminal investigation.” McKune, 536 U.S. at 34, 122 S.Ct. 2017 (Kennedy, J., dissenting). In other words, it would be an unfair double-dipping to permit the State, on one hand, to require a waiver of the Fifth Amendment privilege under the guise of rehabilitation, while on the other hand to transform its interest into criminal investigation once it felt, in its judgment, that a particular statement required prosecution. Allowing such a dichotomy, especially in a prison context, would render hollow any Fifth Amendment privilege against self-incrimination in rehabilitation programs that often go hand in hand with the admission of potentially incriminating statements. The State's varied and sometimes conflicting interests and motivations would always be found to trump the constitutional right.
The plurality in McKune complains that “[a]sking at the outset whether prison administrators can or should offer immunity skips the constitutional inquiry altogether. If the State ... offered immunity, the self-incrimination privilege would not be implicated.” 536 U.S. at 35, 122 S.Ct. 2017. It is unclear why, however, the plurality does not desire avoiding the negative implication of a constitutional right. If use immunity offers a sensible way to protect constitutional rights without infringing on legitimate penological interests,*138 it would make little sense not to consider it. Alternatively, it would make little sense not to consider whether the SOCP could be modified-again, without significantly impairing legitimate penological interests-in other ways, such as maintaining requirements without use immunity, but not attaching to a refusal to participate the loss of good time credits, much like the Federal Bureau of Prisons' program.
Therefore, in the absence of any other evidence as to the burden allowing inmates to keep their Fifth Amendment rights would have on the rehabilitative interest (and all other sub-interests therein), it is here found that, taking the allegations in the complaint and opposition papers as true, offering inmates use

immunity and simply making the program truly voluntary are obvious, easy, and appropriate alternatives to the SOCP in its present form.
C. Qualified Immunity
[7][8] In their motion to dismiss, defendants have also asserted the defense of qualified immunity. “Qualified immunity shields [State employees] from personal liability for damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known[.]” Mollica v. Volker, 229 F.3d 366, 370 (2d Cir.2000) (internal quotations and citations omitted). Even though a prisoner's right to be free from compelled self-incrimination has been long established, see Baxter, 425 U.S. at 316, 96 S.Ct. 1551, the standard defining that right, as is shown by the lengthy discussion above, has not and is not. Courts have not reached a consensus on the proper legal parameters of such right; the individual defendants should not have been expected to solve the riddle either.
[9] Therefore, plaintiff is not entitled to recover compensatory and punitive damages against defendants. Qualified immunity does not, however, mandate dismissal of the second amended complaint, as plaintiff also seeks declaratory and injunctive relief for the alleged violation of his Fifth Amendment rights. See Ford v. Reynolds, 316 F.3d 351, 356 n. 3 (2d Cir.2003) (claims for declaratory relief are not barred by qualified immunity defense); African Trade & Info. Ctr., Inc. v. Abromaitis, 294 F.3d 355, 360 (2d Cir.2002) (“[Q]ualified immunity is not a defense when [injunctive] relief is sought”). Accordingly, the “Damage Relief” section of the second amended complaint, which includes plaintiff's request for $1.5 million in compensatory damages and $5 million in punitive damages, will be dismissed, as will all portions of the “Relief Requested” and “Injunctive Relief” sections that do not relate to the Fifth Amendment claim discussed herein.
VI. CONCLUSION
The recommendation that plaintiff's equal protection, privacy, due process, and Fifth Amendment, insofar as it relates to the alleged threatened denial of parole, claims be dismissed will be adopted. However, taking

as true the factual allegations, it cannot be said that the complaint fails to state a viable cause of action under the Fifth Amendment, insofar as it relates to the alleged threat of the loss of good time credits. Application of virtually every principle from compulsion jurisprudence cuts in plaintiff's favor on the facts alleged. Also to be dismissed are those portions of the second amended complaint seeking compensatory and punitive damages, as well as those portions of the relief requested not relating to the part of plaintiff's Fifth Amendment claim that does survive defendants' motion to dismiss.
Accordingly, it is
*139 ORDERED that
1. Defendants' motion to dismiss the second amended complaint is GRANTED as to plaintiff's privacy claim, equal protection claim, due process claim, and Fifth Amendment claim insofar as it relates to the denial of parole, and such claims are DISMISSED;
2. Defendants' motion to dismiss the second amended complaint is DENIED as to plaintiff's Fifth Amendment claim insofar as it relates to the loss of good time credits;
3. The “Damage Relief” portion of the second amended complaint, as well as the portions of the “Relief Requested” and “Injunctive Relief” sections that do not relate to the surviving part of the Fifth Amendment claim, are DISMISSED; and
4. Defendants are directed to serve and file an answer to the surviving portions of the second amended complaint on or before May 7, 2004.
IT IS SO ORDERED.
N.D.N.Y.,2004. Donhauser v. Goord 314 F.Supp.2d 119
END OF DOCUMENT

 
 -. ,
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

DISTR/CTCOURT-N.D.OFN.Y.
F r LEO

)

DAVID DONHAUSER,

)

PlaintHf(s)

)

)

GLENN S. G~~RD, COMMISSIONER,

)

. NDNEYOWMDIYONOCICRSKMDAORCTSI,NEMLALRIT, HD.A..seOfYePnO'dUaCRnOTtUIHs~,,CSSEWLO, J~)) )

AT

O'CLOCK

lawrence K. Baerman, Clerk--S-y-rac-u-se

CIVIL RIGHTS COMPlAINT PURSUANT TO 42 U.S.C. § 1983

Civil Case No.:

Plaintiff(s) in the above-captioned action, allege(s) as follows:

01~ .,. JURISDICTION

"<.' \)

1.

This is a civil action seeking relief and/or damages to defend and

protect the rights guaranteed by the Constitution of the United States. This

action is brought pursuant to 42 U.S.C. § 1983. The Court has jurisdiction

over this action pursuant to 28 U.S.C. §§ 1331, 1343(3) and (4) and 2201.

PARTIES

2.

Plaintiff:

David Donhauser, Inmate #99 B 1868

Address:

Oneida Correctional Facility 6100 School Road, P.O. Box 4580

Rome, New York 13442-4580

Additional Plaintiffs may be added on a separate sheet of paper.

3. a. Defendant:
Official Position:

Glenn S. Goord Commissioner, NY DOCS

Address:

New York Department of Correctional Services State Campus, 1220 washington Ave Albany, New York 12226

Form E (2) (a) . 1

e
b. Defendant:

Martha E. Yourth

•

Official Position: CSW, Guidance Specialist

Address:

NYS Dept. of Correctional Services State Campus, 1220 washington Ave
Albany, New York 12226

c. Defendant:

Dominic Martinelli

Official Position: Sex Offender Program Counselor

Address:

Oneida Correctional Facility
6100 School Road Rome, New York 13440

Additional Defendants may be added on a separate sheet of paper.

4.

PLACE OF PRESENT CONFINEMENT

a. Is there a prisoner grievance procedure at this facility?

()Q Yes

( ) No

b. If your answer to 4(a) is YES, did you present the facts relating to your
complaint in this grievance program?

) Yes

9QNo

If your answer to 4(b) is YES:

(i) What steps did you take? I wrote letters to all officials of

the Sex Offender Programs.

(ii) What was the final result of your grievance? They refused to address my concerns about my innocence and that I may be committing perjury.

Form E (2) (a) . 2

e
If your answer to 4(b) is NO:
Why did you choose to not present the facts relating to your complaint in the prison's grievance program?
This is not the procedure for this
kind of problem.

c. If there is no grievance procedure in your institution, did you complain

to prison authorities about the facts alleged in your complaint?

(~) Yes

( ) No

If your answer to 4(c) is YES: (i) What steps did you take?
Talked with my assigned counselor, and wrote letters to all parties of DOCS.

(ii) What was the final result regarding your complaint? They stated that I must participate in the Sex Offender Program.

If your answer to 4(c) is NO:
Why did you choose to not complain about the facts relating to your complaint in such prison?

5.

.PREVIOUS LAWSUITS

a. Have you ever filed any other lawsuits in any state and federal court
relating to your imprisonment?

) Yes

~No

b. If your answer to 5(a) is YES you must describe any and all lawsuits, currently pending or closed, in the space provided on the next page.

Form E (2) (a) . 3

For EACH such lawsuit, provide the following information:

i.

Parties to previous lawsuit:

Plaintiffs:

N/A

Defendants: N/A

ii. Court (if federal court, name District; if state court, name County: N/A
iii. Docket number: iv. Name of Judge to whom case was assigned:
N/A

v. Disposition (dismissed? on appeal? still pending?) N/A
VI. Approximate date of filing prior lawsuit: N/A

vii. Approximate date of disposition: N/A

6.

FACTS

Set forth the facts of your case which substantiate your claim of violation of your civil and/or Constitutional rights. List the events in the order they happened, naming defendants involved, dates and places.

Note: You must include allegations of wrongful conduct as to EACH and EVERY defendant in your complaint. (You may use additional sheets as necessary.)
In October 2000, and November 2000, and in March 2001, Plaintiff, had conversations with his counselor O'Keefe, and CSW Yourth,

and SOP Counselor Martineeli and Counsel Annucci, about the Sex offender program, in which he was told he has to participate in or

lose his good time and other probtems he would receive. He stated he

could not participate in this program because he felt that having to

write out a full report of sexual history and tell about the instant

offense was ln vlolation of his fifth amendemnt rights and also

violates his right to ~6rtx1f~J(a).4

*See attached statment of

facts.*

;:

7.

CAUSES OF ACTION

Note: You must clearly state each cause of action you assert in this lawsuit.

FIRST CAUSE OF ACTION

Refusal to admit responsibility and disclose his sexual history

and refusal to disclose in writing a full report of uncharged

sexual offenses and of the instant offense(s) is sought by

Prison officials SOP programs. This sought information could incriminate plaintiff and subject him to further criminal charges, refusal to admit his crime will suhject him to loss of good time.

SECOND CAUSE OF ACTION Refusal to talk about your sexual history and present crime with other inmates in the sex offenders program and sharing this kind of information with peer (inmate) counselors will have the plaintiff removed from the program and given disciplinary charges

as well as loss of good time and higher classification under Megan's Law. This violates his Right to Privacy and self Incrim.

THIRD CAUSE OF ACTION My refusal to participate and admit responsibility will result in consequences such as loss of earned good time and having my Parole consideration denied, along with having my sex offender status classified at a higher level under Megan's Law. Also, other loss of privileges as organizations and programs, and transfers to other facilities with Better trade programs.

Form E (2) (a) . 5

.'
8.

e
Plaintiff(s) demand(s) a trial by
8-or- Court
(Circle only one).

9. PRAYER FOR RELIEF

WHEREFORE, plaintiff(s) request(s) that this Court grant the following relief: See attached "Prayer for Relief".

I declare under penalty of perjury that the foregoing is true and correct,

DATED:

0e.~\. I), 8CO\
CW,S;:)C~Jc.MA · Signature of Plaintiff(s) (all Plaintiffs must sign)
David Donhauser 99 B 1868 Oneida Correctional Facility P. O. Box 4580 Rome, New York 13442-4580

Form E (2) (a) . 6
tru.s. GOVERNMENT I"RI!IITING OfTICE: 1997 - SI6-72V5OOOl

WHEREFORE, the Plaintiff requests that this Honorable Court grant the following relief:
1. A Declaratory Injunctive Order requiring the current Sex Offender Program operated by the New York State Department of Corrections, at various correctional facilities, CEASE and DESIST the current standard operating procedure of mandating a graphic and detailed written disclosure of a participants Instant Offense, and their sexual autobiography. This is a violation of his Fifth Amendment priviledge of self-incrimination, and in that there being no confidentiality afforded the disclosures, the information required further denies him of his Fourth Amendment priviledge of privacy.
AJ;.T~BNATIV~~EC2.U_~ST_Q~ DAr-:rAGE DEMANDED: 1. Require that Corrections Counselors assigned to the
Sex Offender Program, have specialized training in counseling sex offenders
2. Require that a certified psychologist supervise the Sex Offender Program_
3 The Instant Offense is reviewed on an individual basis and the resultant programmatic needs afforded that individual.
4. All Sex Offender Programs throughout the state operate in the same manner, and be recognized as one.
AWARD: COMPENSATORY DAMAGES in the following amount:
ONE MILLION dollars for the loss of parole possibilities, the loss of "good time", and BUT not limited to any other "penalogical" consequences.
- 1-

AWARD: (continued) PUNITIVE DAMAGES in the following amount:
$500,000.00 for the higher risk level determination associated with the failure to participate, or not being able to participate in the Sex Offender Program. For the loss of personal freedom that is attached to the Level 3 risk level, relative to reporting procedures, location of housing and information dissemination.
GRANT such other relief as it may appear that the Plaintiff is warranted.
I Declare under penalty of perjury that the foregoing is true and correct.
C;;eu&1j~ -~David Donhauser Inmate #99 B 1868 Oneida Correctional Facility P.O. Box 4580 6100 School Road Rome, New York 13442-4580
- 2-

•
STATMENT OF FACTS

I)

I, David Donhauser, plaintiff is bring this complaint

against the New York State Department of Correctional Services

and in particular the Sex Offenders Programs, aka SOP.

~.)

Prior to makin this request of the Court, the plaintiff has

had correspondence with his assigned corrections counselor,

Mr. O'Keefe, and Senior corrections counselor at Oneida Correctional

facility Mrs. Carter, Guidance Specialist at Department of

Correctional Services Central Office Ms. M. Yourth, and Deputy

Commissioner/Counsel Anythony Annucci, in an attempt to resolve

the issues of making written statments of instant sex offense and

his sexual history in the Sex Offenders Programs.

~.}

This action pursuant to 42 USC §l983, is a result of the

Sex Offenders Programs requiring plaintiff who have been convicted

by special plea "Alford" and/or a jury trial, albeit maintaining

their innocence and currently have an appeal within the Courts, and/or

an inmate who has taken an "Alford" plea bargain (Plaintiff) plea

bargain, to sign a "contract" prior to placement within the SOP

that states amoung several issues, that you will write a complete

and detailed letter of the instant offense.

L!)

Plaintiff, now having filed this action after having tried

to resolve the issues of entering the program without having to

make this written letter of the instant offense and prior sexual

history, states the following reasons for bringing this Action into

-1-

•

the United States District Court of the Northern District of

New York.

~.)

Plaintiff has refused program participation at this present

time because of having to make a written statment of the instant

offense and prior sexual history. Plaintiff contends that his

reasoning for this is he is innocent and having to make a written

letter would be "Perjury". Also plaintiff contends that making this

written report violates his Rights protected under the Fifth Amend-

ment of the United States Constitution. However, Defendant's have

informed plaintiff by way of writen confirmation that he "Must"

follow program guidelines or lose his "Goodtime" and he could receive

an "incident report" (misbehavior report) which he could end up in

Special Housing Unit, lost of His goodtime "all of it", and have

his Public Notification level increased because of his failure to

follow program rules in the SOP. Several other punitive actions

can be done to plaintiff for not following SOP guidelines. He can

be transferred to another facility, and/or have his security

classification increased to maximum security, be denied Parole at

his Parole Release hearing which is scheduled for January 2002.

L.)

The SOP program Counselor makes recommendation to the NYS

Board of Sex Offenders Evaluation for assigned Levels under the

Megan's Law. This Board is operated by the New York State Depart-

ment of Correctional Services. Plaintiff having failed to partici-

pate and follow guidelines will have his "Public Notification"

increased to the highiest level by Counselor Martinelli. Plaintiff

now faces having his Public notification increased from level one

or two, to the highiest level (3), because he refuses to violate his

Rights afforded and protected under the Fifth Amendment.

-2-

•

).)

In the United States Court of Appeals, Tenth Circuit,

decided on May 14, 2001, in the matter of Robert G. Lile vs.

(Plaintiff) vs. David McKune, Defendant, Kansas Department of

Corrections (SOP), in the Matter under Title 42 USC §1983 action,

regarding the same matters to which plaintiff commences this

complaint against the New York State Department of Correctional

Services, and it's "Sex Offenders Programs".

~.)

New York State DOCS have consistently violated plaintiff

Fourth Amendment Rights to "Privacy" and his Fifth Amendment Rights

aginst "Self-incrimination" be requiring plaintiff to disclosure of

his sexual history, this program sought information that could

incriminate him and subject him to further criminal charges;

consequences for plaintiff refusal to disclosure of his instant

offense and prior sexual history was substantial to implicate his

Right against self-incrimination and also forces plaintiff to

admitting incriminating information as part of the SOP program or

suffering the penalties for not writting the statment for the SO?

programs.

'i.)

While it is reconized that to be successful within a

treatment or "rehab" program, one must first admit there is a

problem, and accept responsibility for it. Herein lies the problem

for plaintiff is required to participate in the sex offenders

program (SOP), albeit, maintaining his innocence prior to, during,

and post trial.

/Q)

It is a requirement that prior to entering the residential

(SOp), that a contract be signed, and within that contract it

states: "In order to meet SOP goals and obtain a satiisfactory

discharge, I--must--demonstrate acceptance of responsilbility for

-3-

•

my sexual offending behavior, and participate in all programs

prescribed activities". Within the first two weeks a participant

must submit a mandatory written disclosure of their instant offense.

)/.)

That mandatory written disclosure MUST Include plaintiff

feelings, thoughts, and behavior prior to and during the instant

offense, along with the victim(s), their age(s), sex. and their

relationship to plaintiff and how plaintiff coerced them. Also

plaintiff must include how he was apprehended, and how he is

responsible for this crime. After this is completed, the plaintiff

MUST submit a life and sexual autobiography.

I~.)

This "autobiography" must include the typical pedigree

information, along with your inter-personal relationships with

your "family" and "friends", if anyone in your family has had or

having alcohol or drug problems, if anyone within your "family"

has had interaction with the authorities, how you learned about

"sex", your "sexual" "HISTORY" which must include all UNCHARGED

sexual acts, your "DEVIANT" sexual arousel, and/or any history of

sexual abuse.

/3.)

The above stated information may be pertinent for "rehab"

purposes, and effectual in treating someone in the SOP. However,

submission of this information also allows for self-incrimination

as this disclosure is an admittance of guilt, and that there is NO

"Confidentiality" afforded such disclosure, regarding any uncharged

sex offenses (whether against minors, or persons of legal age),

these offenses must be reported to the proper authorities for

further prosecution.

-4-

•

14.)

The mandatory written disclosure vis-a-vis admittance of

guilt and responsibility is or may be acceptable to an inmate who

has taken a "plea" for a reduction is incarcerative time, but any

admittance of any guilt obviates the collateral legal attacks

available to one who has maintained their innocence throughout or

taken an "Alford" plea.

I~)

This self-incrimination written disclosure statment must be

viewed as the nature of the statment and/or the admission within

that statment. It is pertinent to note that one who has maintained

their innocence, and testified at trial to their innocence, and

submits a written disclosure must portend the further charges of

perjury.

I~.)

There are significant adverse consequences associated with

the failure "or" refusal to FULLY participate in the SOP. The

consequences are (but not limited to) Misbehavior Report, Unsatis-

factory discharge from the SOP (which will result in an unwarranted

assignment of community risk level 3), denial of the Earned (goodtime)

Eligibility Certificate, possibility of Special Housing (SHU) status,

relocation to another Prison (maximum), and or loss of good time and

denial of parole opportunities. These consequences for plaintiff who

did not have participation mandated by the Courts (via sentence or

Court ordered) are analogous to the conditions imposed for serious

disciplinary infractions, and therefore, one is compelled to

participate.

II.) The SOP while stated as being voluntary in nature is not.

The deprivation penalities, along with administrative consequences

that are imposed if one refuses to volunteer or FULLY participate,

-5-

•

lends one to view this as being compelled to participate, which

is clearly a violation of the Fifth Amendment priviledge, which

allows individuals not to answer officila questions put to them

in any proceeding whether criminal or civil, formal or informal,

in that the answers may incriminate the person in future criminal

proceddings.

I~~

Therefore, the adverse consequences imposed upon plaintiff

by the NYS - DOCS, unless the plaintiff relinquishes his

Constitutional Rights of self-incrimination are sufficiently effect-

ive, and substantial enough to constitute impermissable compulsion

of self-incrimination, which the Fifth Amendment prohibits.

/'1.) Inmate (plaintiff) records are afforded confidentiality to

prevent unauthorized individuals access to the inmates (plaintiff)

instant offense, and any prior criminal history, as a prevention

method of protecting the plaintiff from any unwarranted retribution.

~G,) Currently the SOP allows (as required in the signed contract)

that information relative to assesment and program process (ie;

sexual history, instant offense statment, sexual autobiography, ect.)

will be shared with other SOP within a correctional setting, the

Board of Sex Offense Examiners, the NYS Division of Parole, and any

community treatment program.

:)1.)

The sharing of information relative to the "rehab" of

plaintiff is both understandable, and acceptable. However, the

Plaintiff alleges that the current corrections counselor assigned

to the Sex Offender Program at Oneida Correctional Facility, shares

this information relative to individuals within the SOP with

"facilitators" (Inmate who assist and or guide the "programming"

needs of other inmates within the SOP when the Corrections Counselor

cannot fill that need), -6-

• •

which puts all inmates within the SOP at the risk of "reprisals",

in that the "confidentiality" afforded this program becomes

sufficiently diminished.

~a~

Plaintiff also alleges that the Corrections Counselor

Mr. Martinelli, shares any and all information with the Courts when

assignment of risk level is forthcoming. This information is sUbmit-

ted by Mr. Martinelli to the Courts with the intention of swaying

the Court for a higher risk level determination. This "sharing" is

"Prohibited" by law, and can only be offered to the Court via a

subpoena or Court Order. [See 42 C.F.R. §§2.63 (a) (2) & 2.65, and

New York Penal Law, and N.Y. Corrections Law §168 (m)], any infor-

mation offered to the Court MUST be submitted by the Board of Sex

Offenders Examiners.

~~.) In addition to the Corrections Counselor "sharing" personal

information with the facilitators, the Courts, the Plaintiff also

alleges that Mr. Martinelli, shares it with the Corrections Officers

at Oneida Correctional Facility, which in of itself is a violation

of the inmates rights, and Corrections Law §29.

~4.) Plaintiff alleges that his 14th Amendment Priviledges of a

Liberty Interest is voided by the NYS DOCS Sex Offenders Programs

requirement of signing a contract stating that one must accept

"responsibility" and fully participate in the SOP with regards to

plaintiff current instant sexual offense and history, and if he is

not able or willing to, due to collateral reviews of his instant

offense, or have taken an "Alford" plea bargain he will suffer

Administrative consequences and/or deprivation of priviledges.

~~) While Plaintiff is cognizant that as an incarcerated individ-

ual, he does not enjoy the Liberty Interest afforded by the

-7-

~-~ ~-- ~~-- ~-~---------------------
•
Constitution and the 14 th Amendment. However, incarcerated individuals do have a limited interest in that they can expect Parole, conditional release, use of the telephone, use of commissary, outside (yard) priviledges and program priviledges. llA.) Some or all (but not limited to) of the above may be withheld or revoked for failure to accept responsibility and/or fully participate in the Sex Offenders Program. Also one may be relocated to another facility, put into (SHU) Special Housing Unit, long term keep lock status for failue to accept responsibility or fully participate in the New York State Department of Correctional Services, Sex Offenders Program. ~7.) All of the aforementioned consequences and deprivations while assocoaited with disciplinary issues, and not relative to the individuals 5th Fifth Amendment Rights Priviledges against selfincrimination, are and do impose a hardship upon Plaintiff and also denies him his limited Liberty Interests.
DECLARATION UNDER PENALTY OF PERJURY
The undersigned declares states under the penalty of perjury that he is the plaintiff in the above action, that he has read the above complaint and that the information contained therein is true and correct. 28 U.S.C. §1746. 18 U.S.C. §162l.
Executed at Oneida Correctional Facility, on ~eptember 17 , 2001.
(
David Donhauser DIN# 99 B 1868 Oneida Coorectional Facility 6100 School Road, Box 4580 Rome, New York 13442-4580
-8-

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
----------------------------------x
In the Matter of a Complaint by
DAVID DONHAUSER, Plaintiff,

•
NOTICE OF MOTION FOR A PRELIMINARY INJUNCTION

against

-CV-- - - - -

GLENN S. GOORD, Commissioner, New York DOCS; MARTHA YOURTH, C.S.W.; DOMINIC MARTINELLI, S.O.P.: Counselor, New York DOCS,
Defendants.
Pursuant to 28 U.C.S. § 1983.
----------------------------------x
SIR S:

()i <~
\,Ii! "-"- _ _..:.'";;;:".:......:1..j-.......- -.....~,
U.S. DISTRICT COURT-N.D. OF N.Y.
----- F I LED .--.~.~
,," '
~,. l ~ "

AT

()'CLOCK _ __

Lawrence K Baerman, Clerk -Syracuse

PLEASE TAKE NOTICE that upon the annexed affirmation of

9 DAVID DONHAUSER, affirmed the

day of Oc...\o'G~r- , 2001, and

upon the complaint herein, plaintiff will move this Court, Hon.

------------- , U.S~D.J., in Room - - - - , United States Courthouse
100 South Clinton Street, Syracuse, New York, 13261-7367, on the

day of NQuunbs'.t- , 2001, at ~ o'clock in the Fc~

noon thereof, or as soon thereafter as parties can be heard, for

an Order pursuant to Rule 65 of the Federal Rules of Civil Procedure

enjoining the defendants from:

A. taking any action(s) ,in retaliation or in retribution against plaintiff for having filed and commenced the instant action, or any actions which would serve to render the instant action moot, including, but not limited to: transferring plaintiff to another facility; harassing plaintiff through the use of unwarranted searches and frisks of his person and property or the use of the inmate disciplinary process; withholding plaintiff's goodtime for failure to participate in the Sex Offender's Program which plaintiff complains of in the instant Action; or any other actions of a similar nature aimed at punishing - 1-

-.-

plaintiff for having commenced the instant action or at preventing litigation on the instant action from proceeding;

B. continuing the current practice of requiring a detailed written accounting of an S.O.P. participant's personal sexual history, biography, and description of the instant offense, where said participant maintained his innocence at a trial or took an "Alfred" plea, and said conviction has pending appellate or post-conviction actions or remedies;

C. dissiminating any information currently in existence which has been obtained from any document listed in subparagraph B, above, to other inmate program facilitators, to Corrections Officers, to the Board of Sex Offense Examiners, to District Attorneys or other prosecutors, to any Court for any purpose other than the instant action, or to any other person, agency or entity not specifically identified herein;

D. utilizing any information obtained thereby for any reason,

including, but not limited to: seeking an increased risk

level prior to an S.O.P. participant's release; seeking

criminal prosecution for uncharged crimes or criminal

actions of any said participant which have come to light

through said practice; seeking to withhold good time credits

based upon said information; seeking to prevent release

upon any said participant's Conditional Release date by

the denial of proposed residences and release programs

based upon the use of said information, of any other

use of said information which is intended to negatively

impact any said participant's reputation, ability to

function, and eligibility to participate or obtain programs,

services, priviledges, etc.

And E.

from taking any other actions which the Court deems to

be inappropriate, unwarranted, arbitrary and injurious to

the plaintiff.

Dated: Onieda County, New York

Sept )2 ,

, 2001.

- 2-

--------------........

FROM:

DAVID DONHAUSER, Plaintiff Pro Se DIN;:#99-B-1868 Oneida Correctional Facility 6100 School Road, Box 4580 Rome, NY 13442-4580

T0~ UNITED STATES DISTRICT COURT NORTHERN: IDISTRICTOF"NEW YORK', United States Courthouse 100 South Clinton Street P. O. Box 7367 Sy~acuse, NY 13261-7367

GLENN S. GOORD, Commissioner MARTHA YOURTH, C.S.W. Guidance Specialist Defendants New York State Department of Correcitonal Services State Office Building Campus, Bldg. #2 1220 Washington Avenue Albany, NY 12226
DOMINIC MARTINELLI, Sex Offender Program Counselor, Defendant Oneida Correctional Facility 6100 School Road, Box 4580 Rome, NY 13442-4580
Hon. Elliot L. Spitzer, Attorney General Attorney for Defendants New York State Department of Law Office of the Attorney General The Capitol Albany, NY 12224

- 3-

,

'UNIT~D STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
----------------------------------x
In the Matter of a Complaint by
DAVID DONHAUSER, Petitioner,
against

AFFIRMATION IN SUPPORT OF MOTION FOR A PRELIMINARY INJUNCTION [F.R.C.P. 65]
________-CV-___________

GLENN S. GOaRD, Commissioner, New York DOCS; MARTHA YOURTH, C.S.W.; DOM~NIC MARTINELLI, S.O.P.: Counselor, New York DOCS,

Defendants.

Pursuant to 28 U.C.S. § 1983.
----------------------------------x

STATE OF NEW YORK ) ) Affirmation of David Donhauser
COUNTY OF ONEIDA )

I, DAVID DONHAUSER, make the following affi~mation under the

penalties of perjury pursuant to 28 U.S.C. § 1746:

1.

I am the plaintiff in the above-entitled action, I am above

the age of ei~hteen (18) years, and I make this affirmation in support

of my motion for a preliminary injunction, pursuant to Rule 65 of

the Federal Rules of Civil Procedure, enjoining the defendants from:

A. Taking any action(s) in retaliation or in retrubution

against plaintiff for having filed and commenced the instant action,

or taking any actions which would serve to render the instant

action moot, including, but not limited to: ':transferring plaintiff

to another facility; harrassing plaintiff through the use of un-

warranted searches and frisks of his person and property or through

the use of the inmate disciplinary process; withholding plaintiff's

Good Time for ailure to participate in the Sex Offender's Program

which plaintiff complains of in the instant Action; or any other actions

of a similar nature aimed at punishing plaintiff for having commenced

the instant action or at preventing litigation on the instant action

- 1-

•
'from 'proceeding; B. Continuing the current practice of requiring a detailed
written accounting of an s.o.P. participant's personal sexual history, biography, and description of th instant offense, where said participant maintained his innocense. at a trial or took an "Alfred" plea, and said conviction has pending appellate or postconviction actions or remedies;
C. Dissiminating any information currently in existence which had been obtained from any document listed in sub-paragraph B, above, to other inmate program facilitators, to Corrections Officers, to the Board of Sex Offense Examiners, to District Attorneys or other prosecutors, to any Court for any purpose other than the instant action, or to any other person, agency or entity specifically identified herein;
D. Utilizing any information obtained thereby for any reason, including, but not limited to: seeking an increased risk level prior to an.S.O.P. participant's release; seeking criminal prosecution for uncharged crimes or criminal actions of any said participant which have come to light through said practice; seeking to withhold good time credits based upon said information; seeking to prevent release upon any said participant's Conditional Release date by the denial of proposed residences and release programs based upon the use of said information, of any other use of said information which is intended to negatively impact any said participant's reputation, ability to function, and eligibility to participate or obtain programs, services, priviledges, etc.; and
E .• Fr0m taking any other actions which the Court deems to be inappropriate, unwarranted, arbitrary and injurious to the plaintiff,
- 2-

• •

until such time as a final disposition on the merits in the above-

entitled action has been reached.

2.

Unless restrained, the defendants will continue to, or will

begin to, take the actions herein sought to be enjoined.

3.

Immediate and irreparable inju~y, loss, and damage will result

by reason of the threatened and/or ongoing actions of the defendants,

as more particularly appears in the complaint filed in this action.

Plaintiff currently has no adequate remedy at law.

4.

Plaintiff herein incorporates and relies upon the factual

allegations contained within the Complaint as the factual predicate

which forms the basis of support for the relief requested herein.

5.

Plaintiff recognizes that the Court has discretion ln deter-

mining whether to grant or deny a preliminary injunction and further

recognizes the fact that a preliminary injunction is an extraordinary

and drastic remedy that should not be granted freely. However,

plaintiff respectfully asserts that discretion would be properly

utilized in this action based upon the following grounds:

A. The significance of the threat of irreparable harm to

plaintiff if the injunction is not granted presents a reasonable

probability that plaintiff's constitutional liberty, privacy, due

process and equal protection interests will ultimately be irrevo-

cably compromised;

B. The state of the balance between this harm and the injury

that granting the injunction would inflict on the defendants weighs

heavily in plaintiff's favor;

C. There exists a high probability the plaintiff will ultima-

tely succeed on the merits in this action; and,

D. The public interest favors such an injunction inasmuch as

- 3-

•
there are currently many others similarly situated to plaintiff's instant circumstances.
WHEREFORE, DAVID DONHAUSER, being the plaintiff in the instant action, respectfully prays that the Court issue a preliminary injunction restraining the defendants from continuing the conduct or taking the actions as described above, and for such other and further relief as the Court may deem to be equitable, just and proper under the circumstances.
I, DAVID DONHAUSER, being the, plaintiff in the above-entitled action, do hereby declare and affirm;,that,the. foregoing is~t1?ue and correct to the best of my knowledge and belief, and that I make this declaration and affirmation under the full penalties of perjury.

EXECUTED th i s / 7

day of S£~\. , 200l.
Ncm'x Q.QCl&'J~
David Donhauser, Plaintiff Pro Se DIN #99-B-1868 Oneida Correctional Facility 6100 School Road, Box 4580 Rome, NY' '13342-4580

- 4-

 
 .'

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
DAVID DONHAUSER,
Plaintiff,
-against-
GLENN S. GOORD, Commissioner, NY DOCS; MARTHA E. YOURTH, CSW Guidance Specialist; DOMINIC MARTINELLI, Sex Offender Program Counselor; S. CARTER, S.C.C., Oneida Corr. Facility,
Defendants.

JUL 182002
NOTICE OF MOTION 01-CV-1535 DNHlGLS

PLEASE TAKE NOTICE that upon the accompanying memorandum of law and upon all prior proceedings, Defendants Goord, Yourth, Martinelli and Carter, will on August 15, 2002 at 9: 30 a.m., make a motion at the United States District Court, Northern District of New York, Federal Bldg. and United States Courthouse, Syracuse, New York for an order pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, granting dismissal ofthe complaint for failure to state a claim upon which relief can be granted.
PLEASE TAKE FURTHER NOTICE that pursuant to Local Rule 7.1(b)(2), opposing papers, if any, which you choose to file in opposition to this motion made on behalf of the defendants must be filed on or before July 29, 2002 with the Honorable Lawrence K. Baerman,

;

Clerk, United States District Court, Northern District of New York, 100 South Clinton Street, Syracuse, New York 13261, Attention: Inmate Litigation Unit, and served upon the undersigned on or before the same date of July 29, 2002.

PLEASE TAKE FURTHER NOTICE that your failure to respond to this motion by
failing to file papers in opposition to it could result in entry of judgment against you and in
favor of the defendants, dismissing yourcase and resulting in this case not proceeding to trial. Dated: Albany, New York
July 15, 2002

To: David Donhauser 99-B-1868 Oneida Correctional Facility 6100 School Road Rome, New York 13440

ELIOT SPITZER Attorney General of the State of New York Attorney for Defendants Litigation Bureau The Capitol Albany, New Y rk 12224
. B~
/'./
Nelson R. Sheingold Assistant Attorney General Bar Roll No. 601895 Telephone: (518) 473-3682

•
Certificate of Service
I, Kim B. Peacock, affinn pursuant to 28 USC § 1746, that on July 16, 2002, I served the annexed Notice of Motion and Memorandum of Law in Support of Defendants' Motion to Dismiss Pursuant to Fed. R. Civ. Pro. 12(B)(6) upon the following individual(s), by depositing a true copy thereof, properly enclosed in a sealed, postpaid wrapper, in a post office box in the City of Albany, a depository under the exclusive care and custody of the United States Post Office Department, directed to the these individuals at the address(es), designated for that purpose, as follows: David Donhauser #99-B-1868 Oneida Correctional Facility 6100 School Road Rome, New York 13440
Dated: July 16, 2002 Albany, New York

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
--------------------------------------------x
DAVID DONHAUSER, Plaintiff,
-against-
GLENN S. GOORD, Commissioner, N.Y. DOCS MARTHA E. YOURTH, CSW Guidance Spec., DOMINIC MARTINELLI, Sex Offenders Program Counselor SUE CARTER, S.C.C. Oneida Correctional Facility
Defendants,
x
------------------------------------------~

-
I U.S.OISTI\IC1COUR1-NOOFNY.,
_ Elh~-_o-
----- JUl 26 2GG2 \
Al'--:ceK6Oae'!CmaLnO,CC\eKrK--sy-!acu~ \..:awren .
NOTICE OF MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION RELIEF [F.R.C.P. 65 ]
CASE NO.: 9:01-CV~1535 (DNH) (GLS)

SIRS:

PLEASE TAKE NOTICE, that upon the annexed Affirmation of DAVID DONHAUSER, sworn to or affirmed on this ~(g day of ~o~, 2002, and upon the complaint

herein, plaintiff will move this Court, Gary L. Sharpe, U.S.M.J., in room _____

United States Courthouse, 100 South Clinton Street, Syracuse, New York 13261-

7367, on the

day of ----------,2002, at the forenoon or as soon thereafter

as motion can be heard, for an order pursuant to Rule 65 (a) of the Federal

Rules of Civil Procedures, granting injunctive relief to Plaintiff and/or

Plaintiffs class.

DATED: Oneida, New York July ~,2002

~. 1tes~tf~~tedj?
L--- (~( __,J~ktti~~ David Donhauser / Plaintiff Pro-Se 99B-1868 Oneida Correctional Facility P.O. Box 4580 Rome, New York 13442-4580

•

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
------------------------------------------x
DAVID DONHAUSER, ~ Plaintiff,
-against-
GLENN S. GOORD, Commissioner N.Y. DOCS MARTHA E. YOURTH, CSW Guidance Spec., DOMINIC MARTINELLI, Sex Offenders Program Counselor SUE CARTER, S.C.C. Oneida Correctional Facility
Defendants,
_______________________________________ x
STATE OF NEW YORK ) ) ss. :
COUNTY OF ONEIDA )

AFFIRMATION IN SUPPORT OF MOTION FOR PRELIMINARY OR PERMANENT INJUNCTION [F.R.C.P. 65 ]
CASE NO.: 9:01-CV-1535 (DNR) (GLS)

I, DAVID DONRAUSER, make th e following affirmation under the penalties of purjury:
I, DAVID DONRAUSER, am the plaintiff in the above entitled action, and respectfully move this Court to issue an order granting plaintiff's motion for preiminary and/or permanent injunction, to plaintiff and plaintiff's class.
The reason for the relief I seek is the following: 1. Enjoined from taking any action(s) in retailiation or in retribution

(1)

• •
against plaintiff for having filed and commenced the instant action, or from taking any action in an attempt to, or which would serve to, render the instant action moot, including, but notlimited to; transferring plaintiff to another facility; or harassing him through the use of unwarranted searches and frisks of his person or property, of through the use of the inmate disciplinary process; or withholding plaintiff's good time for failure to participate in the sex offenders program; or, any other actions of a similar nature aimed at, or with the intentions of punshing plaintiff forhaving commenced the instant action or at prevenJ:Jng Ji:t::lga_tioR on the instant action from proceeding.
2. Enjoined from continuing the current practice of requiring a detailed written account of an SOP participant's personal sexual history, biography, and description of the instant offense, where said participant is a recognized member of the class.
3. ENjoined from disiminating and information currently in existence which has been obtained from any document or information derived exclusively through SOP participation to inmate program facilitators, to corrections officers, to the Board of Sex Offender Examiners, to any District Attorney or other Prosecutor, to any Court for any purpose other than the instant action, or to any person, agency ao entity not specifically identified herein.
4. Enloined from utilizing any information obtained through participation in the SOP for any reason other .than rehabilitative treatment, including, but not limited to, seeking an increased rick level determination; seeking criminal prosecution for uncharged or criminal actions of any member of the class or participant of the SOP which have come to light through said participation, seeking to withhold good time credits based upon said information, seeking to prevent release on parole,conditional release or maximum experation date based upon in use of said information; or; of any other used information which is intented to negatively affect or impact any member of the class or any
(2)

..

•

participant of the SOP inhis reputation, ability to function in and out of

society as a normal participant, eligibility to participate in or obtain

programs, services, privileges, ect.

5. From taking any other action against the plaintiff which the Court

deems to be inappropriate, unwarranted, arbitrary, injurious, until such

time as a final disposition on the merits in this action has been reached.

WHEREFORE, I respectfully request that theCourt issue a preliminary

and/or permanent injunction as descried above, as well as sucn other and

further relief and Ill~Y be just and proper_ to_plaintiff and plaintiff's class__

EXECUTED THIS DATE: June

~~,2002
CO~C6;L:LL=-... David Donhauser / Plaintiff Pro-Se
99B-1868 Oneida Correctional Facility 6100 School Road P.O. Box 4580 Rome, New York 13442-4580

I hereby declare under penalties of purjury that the foregoing is true and correct to the best of may knowledge and belief.
4- EXECUTED THIS DATE: June Ch 2002
G-~) .r David Donha~er

(3)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

DAVID DONHAUSER,

Plaintiff,

-against-

GLENN S. GOORD, Commissioner, NY DOCS,
MARTHA E. YOURTH, CSW Guidance Spec.,
DOMINIC MARTINELLI, Sex Offenders Program Counselor,
SUE CARTER, S.C.C. Oneida Correctional Facility
Defendants,

CASE NO.: 9:01-CV-1535 (DNH) (GLS)

*******************************************************************************
MEMORANDUM OF LAW
*******************************************************************************

DATED: ~\JI~ d2>, lOO:A

C-~ -<t .A~e /Q~ jf\ u.~<-,1 ----'
David Donhauser / 99B-1868 Oneida Correctional Facility 6100 School Road / P.O. Box 4580 Rome, New York 13442-4580

•
TABLE OF CONTENTS
PAGE TABLE of AUTHORITIES .................•.....•.•..............•..... i
STATEMENT of the CASE ............................................. 1 STATEMENT of the FACT ............................................. 1-2
ARGUMENT: The Court should Grant the Motion for Injunctive Relief ......•................................ 2-3
CONCLUSION ..•.........•...•......•................................ 3

• TABLE OF AUTHORITIES

CASES:

PAGE

CITIBANK NORTH AMERICA v. CITYTRUST 756 F2d 273 (2nd Circuit 1985 )................................. 2 JAYARAY v. SCAPPINI

66 F3d 36 ( 2nd Circuit 1995 ) .•..•..•••..............•......•... 2

MARKOVITS v. VENTURE INFO CAPITOL INC. 129 F.Supp2d 647 ( S.D.N.Y. 2001 ) ...............•............... 2 McKUNE v. LILE

536 U.S.

( 2002 ) ................................•.......... 3

TOM DOHERTY ASSOC. INC. v. SABAN ENTERTAINMENT INC. 60 F3d 27 ( 2nd Circuit 1995 ) .............•..................... 2

OTHER AYTHORITIES
Federal Rules on Civil Procedures
Rule 65 (2) (b) (1) ..................................... 2
United States Constitution
Fifth Amendment .......................................... 3
Black's Law Dictionary
( 7th Ed. 1999 ) ......................................... 2

i

.

STATEMENT OF THE CASE

This is a civil rights case filed under 42 u.S. 1983 by a state prisoner

DAVID DONHAUSER, asserting claims that the Sex Offenders Program in the New York

State Department of Correctional Services are in violation of the Fifth Amendment

guarantee against self-incrimination, the Fourteenth Amendment guarantee of Due

Process, and eqyal protection, and the First Amendment guarantee of the right to

privacy. The Plaintiff also claims allegations of punitive actions by the

defendants in that they appropiate Good-Time for non-participation in the Sex

Offenders Program, and other punitive actions such as new Criminal charges for

revelations made during participation in the Sex Offenders Program.

The Plaintiff requests that the above referanced individuals be granted

I

injunctive relief as members of a class of individuals who have been convicted

of a sex related crime and who may suffer irreparable harm as a class from the

respondents in the form of inappropriate, unwarranted arbitrary and/or injurious

sanctions.

STATEMENT OF FACTS

The Plaintiff was charged with a sex related crime, but for conveinence purposes he chose an " ALFORD " plea and never admitted guilt to the afore mentioned crime. However, as per the state wide policy of the New York State Department of Correctional Services, an inmate who has been convicted of a sex related crime is required to participate in the Sex Offenders Program, There are other .individuals similarily situates, in that they have taken an " ALFORD " plea, pled not guilty, but nevertheless found guilty after a jury trial, or charged, but never convicted of, any sex related crime, or found guilty after an administrative tribunal.
These individuals members in this class face the distinct possibility of irreparable harm and/or loss, which is imminent, and would/could occur prior
(1)

•
to a decision being made on the merits of this case.
ARGUMENT
Plaintiff submits that the individual members in this class ( see Memorandum of Law dated June 26, 2002, submitted to this court) seek protection as a class in the form of temporary or permanent injunctive relief, in that the respondents may seek inappropriate, unwarranted, arbitrary and/or injurious," sanctions against the individuals as a class.
Pursuant to Federal Rules on Civil Procedure, Rule 65 (2) (b) (1), the plaintiff seeks this relief in that he/as the class will suffer irreparable injury and/or loss. He is cognizant that as the movant he has the burden to justify the issuance of the injunction.
In MARKOVITS v. VENTURE INFO CAPITAL INC. ( 129 F.Supp2d 647, 655 [ S.D. N.Y. 2001 ] ) the Court held the legal standard to justify the issuance of a preliminary injunction, a movant has the burden of proving two factors: 1) the demonstration that if not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered. ( see JAYARAY v. SCAPPINI 66 F3d 36,39 [ 2nd Circuit 1995 ], citing CITIBANK, NORTH AMERICA v. CITYTRUST 756 F2d 273,275 [ 2nd Circuit 1985 ] ), and 2) the movant must show either; a) a likelihood of success on the merits, or b) sufficiently serious questions going to the merits to make them fair ground for litigation ( see JA¥ARAY, supra @ 38 ).
The ase of the irreparable harm requirement may be met by showing that the harm is unquantab1e in monetary terms, and that the specter of harm must not be " remote or speculative, but actual and imminent". (see TOM DOHERTY ASSOC.INC. v. SABAN ENTERTAINMENT 60 F3d 27,37 [ 2nd Circuit 1995 ]). Further, the term irreparable harm as defined by Black's Law Dictionary ( 7th Ed. 1999) and quoting Elias Merwin's Principles of Equity and equity Pleading pages 426 - 427 ( H.C. Merwin Ed. 1896 ) states: ( ••• and if the loss of inconvenience to the plaintiff
(2)

•

if the injunction should be refused would be much greater than any which can be

suffered by the defendant •.• ) most assuredly applies in this instant case. The

harm which one would incur includes but is not limited to is, harassment ( ie:

unwarranted search of the body and property), or withholding" GOOD TIME" ,

for the iha.biiny! to participate in the Sex Offenders Program (SOP) due to the

probability of perjury prosecution associated with the requirement that one admit

to the culpability of the crime. However, the deprivation of liberty ( GOOD TIME ),

for non-participation SOP by the Parole Board remains one of the most unquantable

factors relative to this request for relief. Further, the plaintiff contends that

there is a direct and automatic causal connaction between non- participation in

SOP and failure to gain discretionary release by the Parole Board and/or the loss

of GOOD TIME. ( SEE EXHIBIT A ). This further supports the plaintiffs contention

that the injunctive relief requested is sufficient to merit grounds for litigation.

In McKUNE v. LILE 9 536 U.S.

[2002] the Supreme Court made reference

to the fact that the respondents decision not to participate in the Kansas SATP

did not extend his incarceration or affect his eligibility for good time or

parole ( 224 F3d 1182 ). This is not representative of the issues in this instant

case. A major consequence of not participating in the NYS SOP is the loss of good

time ( SEE EXHIBIT B ). This consequence for non-participation shows compulsion

regrading self - incrimination and thus is a violation of the Fifth Amendment,

which in turn makes it fair ground for litigation.

CONCLUSION

WHEREFORE, for the above stated reasons the plaintiff respectfully requests this Court to grant the relief as requested, and for any other such relief deemed just, appropriate, and proper by this Court.

Re.spectf~~tted'

-.

CUJ tc~.LLJo LL~ ~David

Donhauser

/

t
Pro-Se

(3)

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ffiit*'

NYS Department of Correctional Services SEX OFFENDER
COUNSELING PROGRAM

~

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.-

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;

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,;

POLICIES AND PROCEDURES
OCTOBER 2001
I
---_.---------------------- --------------.-

'~NE"J.D~A,COLARWREUCBnROANRAYL""F....A...C...-iL.-JT'1

I

,.

•

FORWARD

The Policy and Procedure Manual for the Sex Offender Counseling Program embodies

a statement of commitment and ethical standards towards the delivery ot a quality sex

offender counseling program in NYSDOCS. It is based upon the recognij:ion that

counseling and treatment programs for incarcerated sex offenders can be effective in

reducing the re-offense rate, and that counseling efforts are focused on tbreve~ting

victimization of the community and its citizens.

:~

.~
.'.

or·

' James V. Grang r

/

Director

·ceoi"'Guida-n-ce-&-CnOl1se1in-g-----

October 2001

. 'It ....

Offenders and other treatment providers along the criminal justice continuum.

•

Tha

a ts who disclose specific informatioDre ?rgiQ9 other sex

. cri,mes committed or anticipate wi I be reported to theagpropriate_.

, authorities, so that victims will have closure and further victimization

will be prevented. .

...

Purpose of Policy and Procedure

The purpose of this Policy and Procedure is to ensure minimum standards of operation for NYSDOCS's Sex Offender Counseling Program. A variety of functions are served and have been established to:

Provide concise, ethical standards to insure professionalism among

those individuals working with the Sex Offender Counseling Program

,

and thereby increase professional performance.

•

Provide DOCS statewide consistency in its Sex Offender Counseling

Program.

•

Provide transferred offenders consistency between programs,

•

Maintain efficiency and clarity in operation.

•

Decrease the potential for legal suits by providing a framework within

which DOCS can operate in a legally responsible fashion.

Program Goals
There are three main goals of the Sex Offender Counseling Program for offender participants. The sex offender is expected to:
1. Demonstrate acceptance of responsibility for his/her sexual offending behavior,
2. Develop and demonstrate an understanding of his/her cycle of sexual offending behavior,
3. Develop appropriate relapse prevention and intervention strategies.
v.r-~t>;..lUA.- .CORRtr:-CTfONAL FACu'..ill
.... '. ~ LAW LIBRARY ,~

• , /"
~
/'".

e

e

activities father than rote memorizat10n and verbalization of concepts.

•

A willingness to abide by ali prohibitions and restrictions ordered by the

Court and/or recommended by the sex offender counseling staff.

,

.

By the end of Phase I of the Sex Offender Counseling Program, offenders should

show substa'ntial efforts toward achieving the qualities outlined above. If an offender

cannot demonstrate the above, he/she is to be terminated from the program as

unsatisfactory. While an offender may reapply for admission to the Program within a

given. time period, to be determined by sex offender counseling staff and not to exceed

six months, the offender must demonstrate to counseling staff that attitudes, denial

and behavior patterns counter-productive to the counseling process have changed.

Program Refusal

,_., OI'IIt:H.JA. CORRECTIONAL FACtLfn '~ ';,.,. :. LAW UBRAR't,~ ; '..

An offender may choose to refu'~~"p~rtj~jp~ti~n i~ th'~!~;~~"Off~~;d~r CounselIng
Program. If the offender refuses to be available for the intake and assessm~nt
interview, or refuses to complete and sign al/ forms during the interview, or r~fusesto participate at any time before the Program begins, the Refusal Form should ;be ,
\.~
completed. An offender who refuses the Program should be made a~re oMhe
n~ative impact his/her decision mc0 have on the-EarnedBigibility process','! NYS
120ard of Parole decisions, Time Allowance Committee decisions, the Board of Examiners of Sex Offenders assessment, and other DOCS programs he/she may wish to participate in, such as the Family Reunion Program. The refusal of an offender to participate in the Sex Offender Counseling Program shall be noted clearly in a chrono entry in the offender's Guidance Unit file.

I
An offender who refuses the Sex Offender Counseling Program may be given one second and final opportunity to participate, after one year from his/her initial refusal but
not within one year of his/her Conditional Release Date or thereafter. unless specified_
,l?:{a Time Allowance Committee that may withhold the earning of "good tiw.§'jmtil !b.~.
~.£ssfully comelete~ !t1e Se.KQffenger C9!J.[1§eling Program .. In those.
be instances where "good time" is withheld and the offellder now wishes to participate, the
offender will be referrea fa"a'S-ex'Offender'Cou-nse!lngProgram but wlfinot gIven
any priority status for admission and will be placed in the Program at the discretion of
the sex offender counseling staff, when there may be a group opening nQt Reeded by another offender who has been awaiting placement in the Program anQ ~0 has not
previously refused the Program. ' It is the offender's responsibility to contact his/her
assigned Corrections Counselor to ask for a second opportunity to participate." Until
the offender makes this contact, he/she will continue to be considered as a re.fusal.

15

!

• •

_ _ _ _ _ _ _ CORRECTIONAL FACILITY SEX OFFENDER COUNSELING PROGRAM

WAIVER OF
r PARTIAL CONFIDENTIALITY .
''')Nt;lUA CORRECTIONAL I n\.",W I .~ LAW UBRARY ~-~-:-~~

I,

, DIN #

, understand that as a part of my Sex Offender

Counseling Program and progress, it is necessary to share my progress and participation with

others who will be supervising me on Parole or continuing to treat me in the community when I

am released. This includes sharing any/all homework assignments, program evaluations,

discharge su.mmaries and other related materials of the Sex Offender Counseling Program. I
am understand that by signing this Waiver of Partial Confidentiality. I granting permission to the

Sex Offender Counseling Program staff to release these materials to the NYS Division of Parole,

who will supervise my release, The Board of Examiners of Sex Offenders, who will evaluate my

risk level, and any community organization or individual who engages me in sex offender

treatment when I am released from NYSDOCS.

so understand that any crime of detail I disclose, whether a crime I have previously

committed and not -eenprosecuted for, or a crime that I am planning to commit, win be

;eported t()_ the appropriate law enforcement agencies.

.

The Sex Offender Counseling Program Policy and the Waiver of Partial Confidentiality that I am signing has been explained to me to my satisfaction by the Sex Offender Counseling Program
staff. I understand the policy and give my consent to waive partial confidentiality as set forth
above.

.. Inmate's Signature
CC: Inmate Guidance File Parole File Central Office File

Date

Counselor's Signature

SOP 3

 
 d,lO11/

U. S. DISTRICT COU
N.D.OFN. Y.

l \JNITED STATES DISTRICT COURT

FILED

NORTHERN DISTRICT OF NEW YORK

OCT 32

-----------------------------------------DAVID DONHAUSER,

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--

--

--

------

--

--

--

--

------

--

--

--

--

--

----

--

--

--

--

--,-AAWT•RENCE

K.

O'ClOC
BAERM~

Plaintiff,

UTICA

-v.-
GLENN S. GOORD, Commissioner, NY DOCS; MARTHA E. YOURTH, CSW Guidance Specialist; DOMINIC MARTINELLI, Sex Offender Program Counselor; S. CARTER, S.C.C., Oneida Corr. Facility,

9:01-CV-1535 (DNH)(GLS)

Defendants.

-- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- --

APPEARANCES:

OF COUNSEL:

FOR THE PLAINTIFF:

DAVID DONHAUSER Plaintiff, pro se 99-8-1868 Oneida Correctional Facility 6100 School Road Rome, New York 13440

FOR THE DEFENDANTS:

HON. ELIOT SPITZER
Attorney General of the State of New York Department of Law The Capitol Albany, New York 12224

NELSON SHEINGOLD, Esq

DAVID N. HURD, DISTRICT JUDGE

ORDER

Presently before this Court for review is a motion by the plaintiff David

Donhauser ("plaintiff' or "Don hauser") for injunctive relief (docket no. 29). In addition,

defendants have filed a motion requesting a protective order and stay of discovery

(docket no. 36).1

I.

Background

Plaintiff filed his complaint on October 10, 2001. In his pro se complaint,

Donhauser claims that defendants are violating his constitutional rights under the First,

Fifth and Fourteenth Amendments by requiring him to participate in a Sex Offenders

Rehabilitation Program. Plaintiff alleges that as part of this program he will be required

to set forth an account of his sexual history and claims that doing so will incriminate

him. Further, Donhauser alleges that if he fails to participate in this program,

defendants will withhold privileges from plaintiff.

On July 1,2002, plaintiff filed a request for certification as a class action. Docket

no. 23. Thereafter, on July 18, 2002, defendants filed a motion to dismiss. Docket no.

25. By Request and Order filed July 22,2002, plaintiff's motion for certification of class

action was stayed pending resolution of the motion to dismiss. Docket no. 27. On July

26,2002, plaintiff filed a motion for injunctive relief. Docket no. 29. Thereafter,

defendants filed an application to stay discovery until the motion to dismiss is resolved

by this Court. Docket no. 36

2. Injunctive relief

The standard a court must utilize in considering whether to grant a request for

injunctive relief is well-settled in this Circuit. As the Second Circuit noted in Covino v.

Patrissi, 967 F.2d 73 (2d Cir. 1992), the movant must show: (a) irreparable harm and

(b) either (1) a likelihood of success on the merits of the claim or (2) sufficiently serious

1 Defendants have also filed a motion to dismiss which will be addressed in a separate order of this Court. Docket no. 25.
2

questions going to the merits and a balance of hardships tipping decidedly toward the party seeking injunctive relief. Id. at 77 (affirming district court's denial of inmate's request for preliminary injunction); see also Roucchio v. LeFevre, 850 F. Supp. 143, 144 (N.D.NY. 1994) (McAvoy, C.J.) (adopting Report-Recommendation of Magistrate Judge that denied inmate's request for injunctive relief).
(a) Irreparable harm. As to this first factor, plaintiff requests that defendants be enjoined from "taking any action(s) in retaliation or in retribution against plaintiff for having filed and commenced the instant action." With respect to the plaintiff's allegations that defendants may harass or retaliate against Donhauser, the Court notes that allegations of future injury without more do not establish a real threat of injury. Gibson v. Walker, 95-CV-1649, (N.D.NY. December 7, 1995) (DiBianco, M.J.) (citing Garcia v. Arevalo, No. 93-CV-8147, 1994 WL 383238 (S.D.N.Y. June 27,1994)). Donhauser's contention of threats and harassment without more are too speculative to establish irreparable harm. Furthermore, Donhauser claims that defendants require inmates who participate in the sex offenders program to prepare a non-confidential biography and personal sexual history. Docket no. 29. Plaintiff requests that defendants be enjoined from the "current practice of requiring a detailed account of an [sex offender program] participant's personal sexual history, biography... " Docket no. 29 at 2. The Supreme Court of the United States recently determined that loss of privileges, or similar disincentives, as a result of an inmate's failure to participate in a rehabilitation program for sex offenders, which includes preparing a sexual history, is
3

not unconstitutional. McKune v. Lile, _ US _ , 2002 LEXIS 4206 (June 10, 2002). Thus, since the Supreme Court found that prison authorities do not violate an inmate's constitutional rights by enforcing consequences for that inmate's failure to participate fully in a sex offenders program. Id. at * 44. Donhauser's claim that defendants may transfer plaintiff or take away privileges as a result of his failure to participate in the sex offenders program does not establish irreparable harm.
(b) Likelihood of success on the merits or sufficiently serious questions going to the merits and a balance of hardships tipping decidedly toward the plaintiff.
In addition, a party is not entitled to injunctive relief unless there is also proof of a likelihood of succeeding on the merits of a claim, or evidence that establishes sufficiently serious questions going to the merits of the claim and a balance of hardships tipping decidedly toward the party seeking such relief. See Covino, 967 F.2d at 77.
In the present case, the plaintiff has submitted only his self serving affidavit and a memorandum of law containing the plaintiffs request for injunctive relief and the reasons why he believes his request should be granted. Donhauser failed to provide any relevant proof, such as documentation, affidavits from other inmates or counselors or any other credible evidence to support the allegations in his complaint. Therefore, the Court finds that Donhauser has failed to demonstrate to the satisfaction of this Court that he has either a likelihood of succeeding on the merits of his claims or sufficiently serious questions going to the merits of these claims and a balance of hardships tipping decidedly toward him. Therefore, since Donhauser failed to establish either of the two requisite elements discussed above, plaintiffs request for injunctive
4

relief is denied.

3. Stay of Discovery

Defendants have requested a stay of discovery pending resolution of their

motion to dismiss. Docket no. 36. In deciding a motion to dismiss, the Court is limited

to facts alleged on the face of the complaint and cannot consider proof outside the

pleadings. See Fed. R. Civ. P. 12(b); see a/so generally 5 C. Wright & A. Miller,

Federal Practice and Procedure § 1366 (1969 & Supp.1986). Therefore, discovery is

not needed to oppose a motion to dismiss. In the event that the motion to dismiss is

denied, plaintiff will then be afforded ample time to conduct discovery. Thus,

defendants' request for a stay of discovery pending resolution of defendants' motion to

dismiss is granted.

WHEREFORE, on the basis of the above, it is hereby

ORDERED, that plaintiffs motion for injunctive relief (docket no. 29) is denied,

and it is further

ORDERED, that defendants' request for a stay of discovery pending resolution of

defendants' motion to dismiss (docket no. 36) is granted, and it is further

ORDERED, that, if the motion to dismiss is denied, the Clerk forward this file to

the Court for the setting of pretrial deadlines, and it is further

ORDERED, that the Clerk serve a copy of this Order on the parties by regular

mail.

IT IS SO ORDERED.

dtJer Dated:

~ ,2002

5

 
 UNITED STATES DISTRICT COURT ~~ NORTHERN DISTRICT OF NEW YORK

DAVID DON HAUSER,

Plaintiff,

v.

Civil No. 9:01-CV-1535

(DNH/GLS)

GLENN S. GOORD, Comissioner, NYS Docs;

MARTHA E. YOURTH, CSW Guidance

Specialist; DOMINIC MARTINELLI,

Sex Offender Program Counelor; and

S. CARTER, S.C.C., Oneida Corr. Facility,

Defendants.

APPEARANCES:
FOR THE PLAINTIFF:
DAVID DON HAUSER Plaintiff, Pro Se 99-8-1868 Oneida Correctional Facility 6100 School Road Rome, NY 13440
FOR THE DEFENDANTS:
HON. ELIOT SPITZER Attorney General State of New York The Capitol Litigation 8ureau Albany, New York 12224-0341
GARY L. SHARPE U.S. MAGISTRATE JUDGE

OF COUNSEL:
NELSON SHEINGOLD, ESQ. Asst. Attorney General

REPORT -RECOMMENDATION
I. INTRODUCTION
This matter has been referred to the undersigned for a Report-
Recommendation by the Honorable David N. Hurd, United States District
Judge, pursuant to 28 U.S.C. § 636(b}(1 }(8) and Local Rule 72.3(c}. On
July 19, 2002, the defendants filed a motion to dismiss (Dkt. Nos. 25-26).
Plaintiff, pro se, David Donhauser ("Donhauser") has responded (Dkt.
Nos. 43-44). For the foregoing reasons, the motion to dismiss should be
granted.
II. Background1
Donhauser brings this action under 42 U.S.C. § 1983 claiming that
the defendants violated his First, Fifth and Fourteenth2 Amendment rights.
Donhauser's complaint arises from his refusal to participate in the Sex
Offender Program ("SOP"). This program requires Donhauser to take
10n November 1, 2001, Donhauser was ordered to file an amended complaint by Judge Hurd. On March 21,2002, his proposed first amended complaint was stricken from the record and Judge Hurd again asked Donhauser to file an amended complaint (see Dkt. No. #10). Judge Hurd noted that it appeared that Donhauser had not exhausted the administrative remedies available to him in the prison administrative process before commencing his lawsuit. (This court does not have access to a copy of the first amended complaint). In his second amended complaint, Donhauser does not state whether he exhausted his administrative remedies. Since the defendants do not address this issue, the court will also decline to do so.
2Donhauser does not specifically state that the defendants violated his Fourteenth Amendment rights, but this conclusion is appropriate after reviewing the complaint.
2

responsibility for his commission of sex crimes and discuss his sexual history as part of his participation.
III. Facts In April of 2000, Donhauser was referred to the SOP at Oneida Correctional Facility. However, Donhauser did not want to admit his commission of the sex crime for which he was incarcerated. He claims that since he entered an Alford plea to the allegations charged, the program forces him to incriminate himself. He also claims that it would be a violation of his right to privacy to disclose his uncharged sex acts and family history. As such, Donhauser informed the prison officials that he would only participate in the program if he could maintain his innocence. Donhauser contends that as a result of his refusal to participate, the Parole Board denied him parole. In addition, he claims that he may face a possible future loss of good time credits for failure to participate in the program.
IV. Discussion A. Legal Standard Fed. R. Civ. P. 12(b)(6) provides that a cause of action shall be dismissed if a complaint fails "to state a claim upon which relief can be
3

granted." In analyzing a motion to dismiss, the facts alleged by a plaintiff are assumed to be true and must be liberally construed in the light most favorable to him. See e.g., Easton v. Sundram, 947 F.2d 1011,1014-15 (2d Cir. 1991). While a court need not accept mere conclusions of law, it should accept the pleader's description of what happened along with any conclusions that can reasonably be drawn therefrom. See Murray V. City of Milford, 380 F.2d 468 (2d Cir. 1967). Furthermore, when a party makes a Rule 12(b)(6) motion, a court will limit its consideration to the facts asserted on the face of the complaint. See Cosmas V. Hassett, 886 F.2d 8, 13 (2d Cir. 1989). A complaint will not be dismissed for failure to state a claim unless it appears, beyond a reasonable doubt, that a plaintiff cannot prove any set of facts entitling him or her to relief. See Wanamaker V. Columbian Rope Co., 740 F.Supp. 127 (N.D.N.Y. 1990). With this standard in mind, the court turns to the sufficiency of Donhauser's claims.
B. Fifth Amendment Claim Donhauser claims that the SOP violated his Fifth Amendment privilege against self incrimination. Recently, the Supreme Court addressed this very issue in McKune V. Lile, 536 U.S. 24, 122 S. Ct. 2017,
153 L. Ed. 2d 47 (2002). In that case, Robert Lile (ULile"), a Kansas
4

inmate, refused to participate in the sex offender program because it required him to admit the commission of his sex crime and inform the authorities of his sexual history, including past uncharged sex crimes, without the benefit of immunity. Lile was informed that his refusal to participate in the program would automatically result in various privileges being reduced. Thereafter, Lile filed a 42 U.S.C. § 1983 action against the prison officials.
The Supreme Court held that "a prison clinical rehabilitation program, which is acknowledged to bear a rational relation to a legitimate penological objective, does not violate the privilege against selfincrimination if the adverse consequences an inmate faces for not participating are related to the program objective and do not constitute atypical and significant hardships in relation to the ordinary incidents of prison life". McKune, 536 U.S. at 27, 122 S. Ct. at 2027. The Court further held that "[d]etermining what constitutes unconstitutional compulsion involves a question of judgment: Courts must decide whether the consequences of an inmate's choice to remain silent are closer to physical torture against which the Constitution clearly protects or the de minimis harms against which it does not." McKune, 536 U.S. at 33, 122 S.
5

Ct. at 2028-9. Furthermore, the Court found that:
It is proper to consider the nexus between remaining silent and the consequences that follow. Plea bargains are not deemed to be compelled in part because a defendant who pleads not guilty still must be convicted. States may award good-time credits and early parole for inmates who accept responsibility because silence in these circumstances does not automatically mean the parole board, which considers other factors as well, will deny them parole.
McKune, 536 U.S. at 38, 122 S. Ct. at 2030 (internal citation omitted).
Furthermore, "[e]ven if a consequence follows directly from a person's
silence, one cannot answer the question whether the person has been
compelled to incriminate himself without first considering the severity of
the consequences." McKune, 536 U.S. at 39, 122 S. Ct. at 2030. Lastly,
the Court noted that "it is beyond doubt, of course, that [an inmate] would
prefer not to choose between losing prison privileges and accepting
responsibility for his past crimes. It is a choice, nonetheless, that does not
amount to compulsion ...." McKune, 536 U.S. at 40, 122 S. Ct. at 2030.
In Johnson v. Baker, 108 F.3d 10,12 (2d Cir. 1997), the Second
Circuit determined that "participation in a rehabilitative program is itself a
rational requirement for membership in the Family Reunion Program
("FRP")." In that case, an inmate was denied participation in the FRP
since he refused to admit his guilt as part of the SOP because his direct
6

appeal was still pending. The court held that "inquiries seeking an inmate's admission to an alleged sexual offense are 'relevant' to the proper functioning of a rehabilitative program" and "an inmate who is unwilling to admit to particular criminal activity is unlikely to benefit from a rehabilitative process aimed at helping those guilty of that activity." Johnson, 108 F.3d at 11-12.
Moreover, it is settled law that an inmate does not have a constitutional right to parole. See Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1,7,99 S. Ct. 2100, 2104, 60 L. Ed. 2d 668 (1979). The New York parole scheme is not one that provides any prisoner a legitimate expectation of release. Barna v. Travis, 239 F.3d 169, 170 (2d Cir. 2001). The State statute creates a parole board that has the power and the duty to determine "which inmates serving an indeterminate ... sentence of imprisonment may be released on parole ... and when." Barna, 239 F.3d at 170 (citation omitted).
Essentially, "[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz, 442 U.S. at 7, 99 S. Ct. at 2104. Moreover, the Second Circuit recently held that "plaintiffs have no liberty interest in
7

parole, and the protections of the due process clause are inapplicable." Barna v. Travis, 239 F.3d at 171 (2d Cir. 2001).
In this case, Donhauser claims that prison officials violated his right to be free from self-incrimination since the SOP required him to admit the commission of the sex crime which resulted in his incarceration, provide a family history and disclose prior uncharged sex acts. Donhauser also contends that his refusal to participate in the SOP caused his parole to be denied. The defendants maintain that Donhauser has not alleged any direct automatic causal consequence for his refusal to participate in the SOP. Moreover, they contend that Donhauser's complaint fails to allege any adverse consequences for his refusal. They argue that since there is no Fifth Amendment violation absent an automatic causal relationship and no action was taken against him, this case should be dismissed.
This court finds that Donhauser's Fifth Amendment rights were not violated. As the defendants have pointed out, Donhauser has not suffered any adverse action for his refusal to participate in the SOP. The defendants have not taken any action seeking to compel him to incriminate himself. While he summarily informs the court that his parole was denied for his refusal to participate in the SOP, this claim is equally
8

without merit. As McKune noted, the parole board must consider various factors when denying parole and Donhauser's refusal would not necessarily mean that they would deny him parole. Since there is nothing in the record which shows that Donhauser suffered any consequence in regards to his denial to participate in the SOP and there is no inherent right to parole, this court recommends the dismissal of Donhauser's Fifth Amendment claim.
B. Donhauer's Remaining Claims3 Donhauser claims that his refusal to participate may cause his good time credits to be taken away in violation of his due process and equal protection rights. He also claims that the disclosure of his past sexual history could result in new criminal charges filed against him, thereby prolonging his incarceration in violation of his right to privacy. The court notes that pro se complaints must be liberally construed. However, the Second Circuit has repeatedly held that "complaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of
3Donhauser claims that his equal protection rights were violated. In Johnson, 108 F.3d at 11, the Second Circuit held that there was "no basis" for an equal protection claim under similar circumstances. Accordingly, this court also finds no basis for an equal protection claim and recommends dismissal.
9

general conclusions that shock but have no meaning." Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987).
This court finds that Oonhauser has failed to state specific allegations of fact indicating that a deprivation of rights has occurred. Moreover, a "possible loss of good time credits" claim is hypothetical and also fails to show that Oonhauser's rights were violated by the defendants. Accordingly, this court recommends the dismissal of all of Oonhauser's claims since he has failed to state a claim for which relief can be granted.
WHEREFORE, for the foregoing reasons, it is hereby RECOMMENDED, that the defendants' motion to dismiss (Okt. No. 25) be GRANTED since Oonhauser fails to state a claim for which relief can be granted under the Fifth Amendment; and it is further RECOMMENDED, that the defendants' motion to dismiss (Okt. No. 25) be GRANTED since Donhauser's claims under the First and Fourteenth Amendments fail to state a claim for which relief can be granted; and it is further ORDERED, that the Clerk of the Court serve a copy of this ReportRecommendation upon the parties by regular mail.
NOTICE: Pursuant to 28 U.S.C. § 636(b}(1}, the parties may lodge
10

written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court within TEN days. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. Roldan v.
Racette, 984 F.2d 85 (2d Cir. 1993); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72, 6(a), 6(e). Dated: January 22, 2003
Syracuse, New York
11

 
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
------------------------------------------x
DAVID DONHAUSER / 99B-1868

AT_ LaWIence

It-aaOen'CnLanO,aCeIt(t

Plaintiff,
-against-
GLENN S. GOORD, Commissioner, N.Y. DOCS

NOTICE OF MOTION

PRELIMINARY AND/OR

PERMANENT

INJUNCTION

RELIEF L F.R.C.P. 65J

MARTHA E. YOURTH, CSW Guidance Spec.,
DOMINIC MARTINELLI, Sex Offenders Program Counselor

CASE NO.: 9:01-CV-1535 (DNH) (GLS)

SUE CARTER, S.C.C. Oneida Correctional Facility

____________________D__e_f_e_n_d__a_n_t_s_, __________x

SIRS:

PLEASE TAKE NOTICE, that upon the annexed affidavit of

DAVID DONHAUSER, sworn to or affirmed on this 21st day of

May

2003, and upon the complaint herein, plaintiff will

move this Court, Gary L. Sharpe, U.S.M.J., in room --------United States Courthouse, 100 South Clinton Street, Syracuse, New

York 13261-7367, on the 30th day of ___J_u_n__e ____ , 2003, at

the forenoon or as soon thereafter as motion can be heard, for an

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order pursuant to Rule 65 (a) of the Federal Rules of Civil Procedures, granting injunctive relief to plaintiff.
DATED: May 21 , 2003 Marcy, New York

Respe~.

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David Donhauser / 99B-1868 Plaintiff Pro-se Mid-State Correctional Facility P.O. Box 2500 Marcy, New York 13403

DECLARATION UNDER PENALTY OF PERJURY
The undersigned declares under penalty of perJury that he is the plaintiff in the above action, that he has read the above complaint and that the information contained therein is true and correct. 28 U.S.C. § 1746, 18 U.S.C. § 1621. Executed at Mid-State Correctional Facility, on May ~I ,2003.
G"'~ ~lb-iWuS. <{ David Donhauser / 99a-1868

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•
UNITED STATES DISTRICT COURT

•

NORTHERN DISTRICT OF NEW YORK
-----------------------------------------x
DAVID DONHAUSER / 99-B-1868

I

Plaintiff,

I -against-

AFFIDAVIT

I

CASE NO.: 9:01-CV-1535

GLENN S. GOORD, Comrnissioner,N.Y.DOCS

I

MARTHA E. YOURTH, CSW Guidance Spec.,

(DNH) (GLS)

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DOMINIC MARTINELLI, Sex Offenders

Program Counselor,

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SUE CARTER, S.C.C. Oneida Correctional

Facility

Defendants.

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-----------------------------------------x

STATE OF NEW YORK )

I

) ss.:

COUNTY OF ONEIDA )
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DAVID DONHAUSER, declares under penalties of perjury that

the foregoing is true and correct to the best of my knowledge

I

and belief.

1). I am the above named Plaintiff in the entitled action,

I

and I am an inmate in the Department of Correctional Services

I

at Mid-State Correctional Facility. 2). I make this Affidavit in Support of a Motion for a

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Prelimary and/or Permanent Injunction Relief.

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3). On April 19, 2002, Plaintiff filed the Second Amended Complaint with the Court .
4). On July 23, 2002, Plaintiff filed a Motion for Preliminary and/or Permanent Injuctive Relief, which was decided on October 2, 2002, by Justice Hurd, at which time was denied.
5). On December 1, 2002, Plaintiff was refused his 2 years of good time credits. Plaintiff was to be conditionally released March 10, 2003 ( See Memorandum of Law Exhibit-B, dated May 21, 2003 ) .
6). On January 22, 2003, Justice Sharpe filed a report and recommendation to dismiss Plaintiff's complaint, in which Plaintiff filed a motion on February 26, 2003, objecting to the report and recommendation.
7). For reasons set forth in Plaintiff's Memorandum of Law, Plaintiff submits that the instant motion should be granted.
Dated: Marcy, New York. June 8, 2003
David Donhauser / 99-B-1868 Plaintiff Pro Se Mid-State Correctional Facility P.O. Box 2500 Marcy, New York, 13403
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----------........-
•
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
________________________________________ x
DAVID DONHAUSER I 99B-1868 Plaintiff,

- against -

CASE NO.: 9;Ol-CV-1535 (DNH) (GLS)

GLENN S. GOORD, Commissioner, N.Y. DOCS
MARTHA E. YOURTH, CSW Guidance Spec.,
DOMINIC MARTINALLI, Sex Offenders Program Counselor
SUE CARTER, S.C.C. Oneida Correctional Facility
Defendants,
___________________________________________ x

*****************************************************************

MEMORANDUM OF LAW

*****************************************************************

DATED: May:1.I,-2002

avid Donhauser Mid-State Correctional Facility P.O. Box 2500 Marcy, New York 13403

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TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ............................... i - ii

OTHER AUTHORITIES .................................. ii

STATEMENT OF THE CASE .............................. 1

STATEMENT OF FACTS ................................. 1-2

ARGUMENT :

The Court should grant the second

Motion for injunction relief

2-8

CONCLUSION ......................................... 8-9

EXHIBITS ........................................... end

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TABLE OF AUTHORITIES

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.
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CASES:

PAGE

CITIBANK NORTH AMERICA v. CITYTRUST

756 F2d 273

2nd Circuit 1985 )

2,3

JAYARAY v. SCAPPINI

66 F3d 36 (2nd Circuit 1995 )

2

MARKOVITS v. VENTURE INFO CAPITOL INC.

129 F.Supp2d 647 (S.D.N.Y. 2001

.................. 2

McKUNE v. LILE
526 u.s. 24 , 122 S.Ct. 2017

( 2002 )

3,4,5,6,8

NEAL v. SHIMODA

131 F3d 818

9th Circuit 1997 )

6,7,8,

NORTH CAROLINA v. ALFORD
400 u.s. 25 , 91 S.Ct. 160 ( 1970 ) .................. . 4

RUSSELL v. COUGHLIN
910 F2d 75 (2nd Circuit 1990 ) ..................... 5

SANDIN v. CONNOR

515 u.s. 472 , 155 S.Ct. 2293 (1995)

4,5

TOM DOHERTY ASSOC. INC. v. SABAN ENTERTAINMENT INC. 60 F3d 27 (2nd Circuit 1995) ............•......... 3

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TABLE OF AUTHORITIES CONTINUES

CASES:

VITEK v. JONES 445 U.S. 480 , 100 S.Ct. 1254

( 1980 )

WOLFF v. McDONNELL 418 U.S. 539 , 94 S.Ct. 2963

( 1974 )

PAGE 6, 7, 4,5

OTHER AUTHORITIES

PAGE

CORRECTIONS LAW § 138 (4) .......................... 7

FEDERAL RULES ON CIVIL PROCEDURES
Rule 65 (2) (b) (1) ................................ 2

UNITED STATES CONSTITUTION
First Amendment .................................... Fifth Amendment ....................................
Fourteenth Amendment ...............................

1,7,8, 1 , 5, 6, 8, 1, 5, 6, 7, 8,

7 NEW YORK CODE RULES AND REGULATION
Part 260 & 261 ..................................... 5,7,

ii

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STATEMENT OF THE CASE
This is a civil rigths case filed under 42 u.s. 1983 by
a State prisoner DAVID DONHAUSER / 99B-1868, asserting that the Sex Offenders Program in the New York State Department of Correctional Services are in violation of the Fifth Amendment guarantee against self-incrimination, the Fourteenth Amendment guarantee of Due Process, and equal protection, and the First Amendment guarantee of the right to privacy. The plaintiff also claims punitive action by the defendants in that appropiated GOOD TIME for non-participation in the Sex Offenders Program.
The plaintiff requests that the above referenced individual be granted injunction relief as a individual who has been convcited of a sex related crime and who has suffered irreparable harm from the defendants in the form of inappropriate, unwarranted and/or injurious sanctions.
STATEMENT OF FACTS
The plaintiff was charged with a sex related crime, but for conveinence purposes he chose an .. ALFORD .. plea and never admitted guilt to the aforementioned crime. However, as per the state wide policy of the New York State Department of Correctional Services, an inmate who has been convicted of a sex related crime is required to participate in the Sex Offenders Program. The Department of Corrections also has a blanket policy that requires an inmate that refuses to participate in a voluntary Program,
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( one being the Sex Offenders Program negative consequcNctS in the form of appropriating GOOD TIME credits from an individual who refuses to participate in the Sex Offenders Program for constutitional issues and/or other reason.
The Department of Corrections has appropriated good time from the plaintiff in the form of two years. Plaintiff has faced the distinct possibility of irreparable harm and/or loss, which was imminent under D.O.C.S.'s blanket policy, and has occurred prior to a decision being made on the merits of this case.

ARGUMENT

Plaintiff seeks protection in the form of temporary and/or

permanent injunctive relief, in that the defendants have seeked

inappropriate, unwarrented, arbitary and/or injurious sanctions

against the plaintiff.

Pursuant to Federal Rules on Civil Procedures, Rule 65 (2)

(b) (1), the plaintiff seeks this relief in that he will and/or

has suffered irreparable injury and/or loss. He is cognizant

that as movant, he has the burden to justify the issuance of

the injunction.

In MARKOVITS v. VENTURE INFO CAPITAL INC. 129 F.Supp2d 647,

655

S.D.N.Y. 2001

the Court held the legal standards to

justify the issuance of a preliminary injunction, a movant has

the burden of proving two factors: 1). the demonstration that if

not granted the applicant is likely to suffer irreparable harm

before a decision on the merits can be rendered. ( see JAYARAY

v. SCAPPINI 66 F3d 36 , 39 [ 2nd Circuit 1995 ] citing CITIBANK

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NORTH AMERICA v. CITYTRUST 756 F2d 273, 275 [ 2nd Circuit 1985]),

and 2). the movant must show either: a). a likelihood of success

on the merits, or, b). sufficiently serious question going to

the merits to make them fair grounds for litigation.

The ase of the irreparable harm requirement may be met by

showing that the harm is unquantable in monetary terms, and that

the specter of harm must not be " remote or spaculative, but

actual and imminent. " see TOM DOHERTY ASSOC. INC. v. SABAN

ENTERTAINMENT 60 F 3d 27, 37

2nd Circuit 1995

). The harm

which one would incur includes, but is not limited to, disclosure

of any unreported sex crime, the prospect of new prosecutions for

previously undisclosed crimes, possible perjury prosecutions for

those that maintained they were innocent at trial and/or plead to

an ALFORD PLEA, ( see exhibit - A ) and withholding .. GOOD TIME

CREDITS" , for the inability to participate in the Sex Offenders

Program (SOP) due to the probability of perj ury prosecution

associated with the requirement that one admit to the culpability

of the crime. However, the deprivation of liberty ( GOOD TIME),

for nonparticipation in the Sex Offenders Program, by the

Department of Corrections, remains one of the most unquantable

factors relative to this request for relief. Further, the

plaintiff contends that there is a direct and automatic causal

connection between nonparticipation in the Sex Offenders Program,

and failure to gain discretionary release, ( GOOD TIME ). ( see

exhibit - B This further supports the plaintiffs contention

that the injunction relief requested is sufficient to merit

grounds for litigation.

In McKUNE v. LILE 536 u.S. 24, 122 S.Ct. 2017 [2002], the

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Supreme Court made reference to the fact that the respondents

decision not to participate in the Kansas SATP did not extend

his incarceration or affect his eligibility for good time or

parole. In quoting Justice Anthony M. Kennedy "... noting that an

inmate's refusal to participate does not affect eligibility for

good time or parole ... II ( see McKune @ S.Ct. 2020 (2) ). "

Determining what constitutes compulsion involves a question of

judgement. Courts must decide whether the consequence of an

inmate's choice to remain silent are closer to the physical

torture against which the Constitution clearly protects, or the

de minimis harm against which it does not ... " Plaintiff

acknowledges that he was charged with a sex related crime, and in

fact took an ALFORD plea, ( see NORTH CAROLINA v. ALFORD 400 u.s.

25, 91 S.Ct. 160 [1970] but this does not make the plea a loop

hole for further admittance of the crime charged. The plea

charged was in full satisfation in not receiving more time in the

instant offense for having past criminal history, and not in

admittance to the crime in its untold circumstance. But to

participate in the optional/ voluntary Sex Offenders Program

within the Department of Corrections, one must admit guilt, write

a statement of the crime, disclose family history, and past

uncharged sex crimes. Here plaintiff has not admitted this to the

sentencing Court, where the Court did not recornrnand/ or mandate

plaintiff to participate in a optional/ voluntary Sex Offenders

Progarm.

see exhibit - C The frame of which comes from

SANDIN v. CONNOR 515 u.S. 472, 115 S.Ct. 2293 [1995]. In SANDIN

id., @ 479 n. 2, 115 S.Ct. @ 2297 n. 2, the Court made references

to WOLFF v. McDONNELL 418 u.S. 539, 94 S.Ct. 2963 [1974],

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which stated: II

The Due Process analysis begins with WOLFF

II

II

There, Nebraska inmates challenged the decision of

prison officials to revoke good time credits without adequate

procedures

II

418 U.S., @ 553 94 S.Ct., @2973 ). Like

Nebraska inmates, inmates in the New York State prisons earn good

time credits under a state statute ( 7 New York Code Rules and

Regulations - part 260 & 261 that bestowes mandatory sentence

reductions for good behavior, efficient, and willing performance

of duties assigned, progress and achievement in a assigned

treatment program, revocable only for flagrant and serious

misconduct and/or refusal to participate in assigned programs.

" ... Due Process Clause itself does not create a liberty interest

in credit for good behavior, but that the statutory provision

created a liberty interest in a II shorted prison sentence II

II

SANDIN @ 2297 ). New York State has little procedural due

process with regards to the Time Allowance Committee, and

revoking inmates good time credits. The hearing is not taped

and/or recorded, and there is no appeal process. see exhibit -

D Also, in RUSSELL v. COUGHLIN 910 F2d 75 @ 77 (A)

2nd

Circuit 1990 ), the court made references II

to create a

Constitutionally protected liberty interest, a state regulation

must employ II language of an unmistakably mandatory character,

requiring that certain procedures ' may' 'shall' , will "

or

must

be employed II

II

see exhibit

E ). This

consequence for remaining silent and loss of good time shows

compulsion regarding self-incrimination and thus, is a violation

of the Fifth Amendment.

In a desenting opinion by Justice Day 0' Connor,"

she

concluded that because the inmate, Robert G. Lile, faced only

(5 )

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" minor " consequences from his refusal to participate in the

treatment program, no self-incrimination existed

"By

I

emphasizing the facts of the McKune case, Justice Day 0' Connor

left open the prospect that more onerous consequences loss of

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good time in another State prison system might tip the balance

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of compelled self-incrimination. This is representative of the

issues in this instant case. A major consequence of not

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participating in the New York State Sex Offenders Program is loss

of good time

see exhibit

B). These case settle that

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goverment and/or State prisons cannot penalize assertion of the

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Constitutional privilege against compelled self-incrimination by

imposing sanction to compel testimony which has not been

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immunized. But the touchstone of the Fifth Amendment is

compulsion, and direct economic sanction and a longer sentence of

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imprisonment are not only penalties of forcing the

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self-incrimination which the Amendment forbids. Here plaintiff asserts that this condition the Department of Correctional

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Services has promulgated amount to " unseen parameters " as to

who gets denied good time without due process by the Time

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Allowance Committee, which in turn makes it fair grounds for

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litigation. In a decision by Court of Appeals,NEAL v. SHIMODA 131 F3d

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818 9th Circuit 1997 ), and also in regards to an analysis by

Judge T.G. Nelson,"

extented discussion of the liberty

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interest implicated by statute ... " " ... a liberty interest that

entitIed him to benefits of appropiate procedures ... " in VITEK

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v. JONES, 445 u. S . 480 , 100 S . Ct. 1254 [1980] . "

for

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classifications and labeling in which this Circuit Court has

made its order and decision, the Court stated: Hawaii's statute

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creating the SOTP authorizes correctional officials to classify

certain inmate's as sex offenders without a hearing and mandates

their completion of an extensive treatment program, which

includes their confession to past sex offenses, as a

pre-condition to parole eligibility 000 " ( Neal @ 828 )

Under New York State Law regarding " GOOD TIME ALLOWANCES "

an inmate can earn credit for participating Participation

in vocational, treatment programs, and good behavior, see 7

New York Code Rules and Regulations 260 & 261 ). There is no

penalty to withhold good time based on refusal for voluntary

programs, since there are other programs for rehabilitative

needs, and withholding good time allowance is based on " poor

performance and/or disciplinary infraction, " in which the record

reflects a behavior for disciplinary purposes. Seeking a redress

for change in policy of an institution(s) through judicial

remedies is clearly a protected right under Corrections Law §

138(4) and U.S.C.A. Constitutional Amendment Artical 1, First

Amendment and to make open statements that are protected under

the equal protection clause, Constitutional Amendment fourteen,

when asserting due diligence not to be punished for refusing to

participate in a voluntary program calls for " Liberty Interest

Protected by Due Process. "

The Court also held that"

under the technical provision

of the SOTP, the treatment program available to Neal and Martinez

is voluntary, and the inmates can quit at any time. However,

because the State's regulations render the inmate completely

ineligible for parole if the treatment program is not

satisfactorily completed, the attachment of the " Sex Offender"

label to the targeted inmate has a practical and inevitable

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coercive effect on the inmate's conduct ... " (see Neal @ 829)

New York State Department of Correctional Services has the same

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type of regulations, that are part of a blanket policy that gives

an inmate negative consequences for refusing to participate in

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an optional/voluntary program. These consequences are not limited

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to taking an inmate's GOOD TIME, or eligibility for parole.

see exhibit - B An optional/voluntary program see exhibit

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- F cannot be used as a punitive tool to coerce, compel, and

threaten plaintiff to participate within the Sex Offenders

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Program, without approriate Due Process. The Department of

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Correctional Services uses the threat of loss of Good Time, which

in turn lengthens the plaintiffs sentence for refusing to

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participate in an optional/ voluntary program. In the McKune

case, the Supreme Court made reference to the fact that if Lile

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would have lost good time and/or received a lenghtened sentence,

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then there would be a Constitutional Violation. see McKune @ S.Ct. 2020 Plaintiff has an expectation to be released on his

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conditional release date, when he has participated in all

assigned and/or Court mandated programs, without the threat of

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loss of good time for refusing to participate in a

,

optional/voluntary program. This in turn violates plaintiff's

First, Fifth and Fourteenth Amendments Due Process rights, which

makes if fair grounds for litigation.

CONCLUSION

WHEREFORE, plaintiff believes that he has shown irreparable harm and for the above stated reasons, the plaintiff respectfully requests this Court to grant the relief as requested, mandate
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defendants to reinstate good time taken from Plaintiff in

December 2002, that upon inmate's refusal to participate in New

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York State Sex Offenders Program, the practice of withholding

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good time allowance be ceased. The practice of forcing an inmate to admit to the crime, by an admission of guilt as a requirement

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enabling participation be halted, especially where the inmate

has taken an Alford Plea; has an appeal pending; never convicted

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and sentenced for a sex related crime; or any other litigation

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pending. That the policy of the Department of Corrections requiring participation in the program due to mention of the

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crime in a pre-sentence report or being charged with the crime

but not found guilty or convicted of the crime. Plaintiff

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requests that this be granted until the Court makes their

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decision on the merits of the complaint. Finally, plaintiff respectfully askes for any other such relief deemed just and

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proper by the Court.

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r:l:. C~-R"~<i?(ectt·)? (ttedk , ~

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- David Donhauser / 99B-1868

Plaintiff Pro-Se
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DATED: May 21, 2003

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- - - - - - - - - - --------.~-

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Offenders and other treatment providers along the criminal justice continuum.

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That

ants who disclose specific information re arding other sex

. cri,mes committed or anticipate'wlilbe reported to theapprOQriate

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~authorities, so that victims will have closure and further victimiza'tion= ~will be prevented.

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Purpose of Policy and Procedure

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The purpose of this Policy and Procedure is to ensure minimum standards of operation

for NYSDOCS's Sex Offender Counseling Program. A variety of functions are served

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and have been established to:

Provide concise, ethical standards to insure professionalism among

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those individuals working with the Sex Offender Counseling Program and thereby increase professional performance.

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Provide DOCS statewide consistency in its Sex Offender Counseling

Program,

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Provide transferred offenders consistency between programs .

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Maintain efficiency and clarity in operation.

Program Goals

There are three main goals of the Sex Offender Counseling Program for offender participants. The sex offender is expected to:

1. Demonstrate acceptance of responsibility for his/her sexual offending

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behavior,

2. Develop and demonstrate an understanding of his/her cycle of sexual offending behavior,

3. Develop appropriate relapse prevention and intervention strategies.

.-> ." Vi~t.lUA

COR ,.... Rt:CTfONAL

FACJUll

.... ,,~ LAWUBRARY,~

(..,

________ CORRECTIONAL FACILITY SEX OFFENDER COUNSELING PROGRAM

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WAIVER OF

PARTIAL CONFIDENTIALITY

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'.JNtH)A CORRECT!ON!',L j 1\\,J4U { l
,~ LA\AJ LIBRARY ...----'--:-:

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, DIN #

:~.. ',""'. ',' .. "~:.!,,~.;:::,-,,

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"""

, understand that as a part of my Sex Offender

Counseling Program and progress, it is necessary to share my progress and participation with

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others who will be supervising me on Parole or continuing to treat me in the community when I am released. This includes sharing any/all homework assignments, program evaluations,

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discharge su.mmaries and other related materials of the Sex Offender Counseling Program. J understand that by signing this Waiver of Partial Confidentiality, I am granting permission to the

Sex Offender Counseling Program staff to release these materials to the NYS Division of Parole,

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who will supervise my release, The Board of Examiners of Sex Offenders, who will evaluate my risk level, and any community organization or individual who engages me in sex offender

treatment when I am released from NYSDOCS.

I

so understand that any crime of detail I disclose, whether a crime I have preViously

committed and not een prosecuted fur, or a crime that I am planning to commit, will be

I

;eported to the appropriate law enforcement agencies.

The Sex Offender Counseling Program Policy and the W3Jver of Partial Confidentiality that I am

I

signing has been explained to me to my satisfaction by the Sex Offender Counseling Program staff. I understand the policy and give my consent to w3Jve partial confidentiality as set forth

above.
I

I

, ,Inmate's Signature

Counselor's Signature

I

Date

I

CC: Inmate Guidance File

Parole File Central Office File
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- ------~------------
Exhibit C

3ENTENCE & COMMITMENT

I THE PEOPLE OF THE STATE OF NEW YORK
I~.D~.J

I 41 SEX

71/· t/U£ 6:?bt5-90

DATE OF BIRTH

NYSID NUM IlER

I

__ To be held UllIilthc judgmcnt of this Court is s:lti,lied.

Dah,' c.:rilllL' (':ollll11illeti:

THE ABOVE NA~:1EQ..DEFENDANT HAVING BEEN CONVICTED OF~ (1\\151» BY ~(' ItuICT) FOR THE CRIME(S) OF:

(Conviction) ~ten~

Ddinil('1

I 1~3'

11111

MinlllllUI\
Tcrllll~r'l

Ma:o..illllll1l T... r l 1 l ( w " j

t)clc::rminalr Trnn!'

I 2. 3.

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4. 5.

Convicted as a lunvenile Offender

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Convicted as an anned felon.

_ _ _ _ Age at lime crime commited

The sentence(s) imposed herein shall run:

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Concurrently with:

Consecutively to:

CONVICTION INCI I tiES: WC:lpnll Type _ _ __ Drug Type _ _ _ __

Found to be a YOUTHfUL OffENDER.
II .~::::::::::::::'~::~:~~,~~~'''~";;~~).,,, ~i ;;16 ~ ~ As aec0'.lili)rersistenl) (violen!) felony offcndcr.

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y

__ A fine of $

dollars.

I

AND THAT THE SAIn DEFENDANT nE ANI) HEREIIY IS COMMJ"lTEJ) TO TilE CUSTODY OF TilE

A Department ofCorreclional S

ice

of New York ulili. released in ~u.;conla1H.:t: with the law, .11".1 I...

~rclllak'l p<.."r:-'ol1 :-:ix.ICC.11 or older (the

I

County Sheriff)

S Departlncol of Correctional Services 's dircclcd (0 dclivcr~hcr) to the custody u c NYS Dcpanlllt.'ni orCorrcclional Services as

provided in 7 NYCRR Part \03.

or __ Execute as a senlence parole supervision (CPL 41 C

Division for Youth of the Slate of New York in accordance with the law hcing a (1Ilak) (fclnalc) pl.:'r:-:on less tho ·X1CCIl (I(i) yc~.us of age at the lill1e the crime

I

was committed. _____________________________ County Jail (corrct:lion;;,) racilitYL

REMARKS:
I

I

__ AmendeC::;]t?k

Original 'entcnce date

A- (DATt

(CLERK OF COURT)

Third Copy Forwarded to Board of Elections

I

,...."r-\Mr-,...........,..,. .. ,- -,..... ..... ,.

I . ,.

ftlVl\:;J'V e D~V~----------·"
SENTENCE'8i. COM1\UTMENT

t

I

THE PEOPLE OF THE STATE OF NEW YORK

_ _ __ Indiclmenl Number _ _ _+-'=""""~=-

NYSID NUMBER

_ Til be held unlil Ihe judgmenl oflhis Coun is salisfied.

I ~AMED THE ABOVE

DEfENDANT HAVII\l; BEEN CONVICTED Of A

ICou\"iction) (Sentence)

# "r

I I.

CCU;)l$.

L;1W

± fL l!L

Sc::1ion
lSio,Zl)
130.~)

Minimum Tenn (YI'S"
.:-3
Z.

Maximum
Tom> (yr.)
b
Cf

LDcle Ie em:

-----

4.

I Convi;:led as a Juvenile Offender

_ _ _ _ Age al lime crime ,ommined CONVICTION INCLUDES:

I ){ Conyi-:led as an armed felon. TIll! senlen,l!(s) imposed herein shall run:

Weapon Type _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Drug Type _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

I

Cllncurrenlly wilh: E::A<At O11-i£:<2---=-~tHJ,J.)'-'I..lD_TO+-V--LfbJ+=--'t(~{k;s~.aca;6Lr:-f---1..l....LJ~"4lo.L....m~. .-...=-===-_
Conse,uliv<!ly 10: - - - - - - - -

I

X

Found l<l he a YOUTHFUL OFFENDER.

(~!) (~ As a (second)

felon\ offender.

..£ LC:;-O, A n1andalOry slJr<::harge in Ihe amounl of ~_.

to

I

~ A ;:rime ,·i-:lims assislance fee in Ihe amOlln! of S

_ A fine of S

dollars.

&01>

andsMl! (has no!) been paid. and~ (has no!) heen paid.

I x... ~) A,\D THAT THE SAID DEFENDANT BE A'ill HEREBY IS CO\IMITTED TO THE CUSTODY OF THE Depanmenl of Corre"lional Seryi,es of the Slale of New York unlil rdeased in accordan"e wilh Ihe law, and being a (male)

person sixteen or older (Ihe

COUJlly Sheriff) (.w'i~ ldep8lhilcill (if CorrecllOnal Senias) is dire,led 10 deliver (him) ~ 10 Ihe cuslody of the NYS Depanmenl of Correclional Services as

I

proyided in 7 NYCRR Pan 103.

__ Execute as a sentence of parole supervision. (CPL 410.91)

Division for Youlh of Ihe Slal" of Ne" Y')lk in a,;;ordan.e wilh Ih< la" being a (male) (female) person less Ihan sixteen (16) years of age at Ihe time the crime

was ..;omnlilled.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ COUJlly Jail (corr~clional fadlily).
REMARKS: _::m~~iL=--'Ot~W=·<::.....L..cr5AL..t.L'.r_-,_ (vk'---'~--.2::=~ e,v~~;'_trtIL_Jt.:.%!O>=~L:f...Ll'(_i..C..~..£S=tL~=,Tl~L-_I·'-£t_:-..Ll_I~=j--_L-/__J3~_y~CA_.'ll_flT_;-LL_-I:._.<._JIhL_!L;U_.!<_.-7>_~,'-_Jft_'::'_O"":_"'._L-vn_~G.5_c:::_::._.<._.--

5? 17 cc dale

to!

____~~~~~-D-AT~E) ~~~rt~/.x:~r ~(CL£EREKAOFJC~O-U.=RT-)-- BY __~~~~~~==~--~~~~~~~~--

_ _ Third Copy Forward<d 10 Board of Ekcli\)(\s

, - -is

CORRECTIONS COpy

Exhibit D

Or')') I: I.J

:r CD t-J ~:; 1 [i E: P,~', 0 N [l (:-,'j I:

:( :L ./ ? (;0 () 2 1 NIT

TU r t, L. I·:; Uu n r I I"i j.: I~ Vti I L ,,\ BI" F. . . . . . . .
I i :I i'Ii:. '1 E. j.,j T(Yl J VI: L Y L U'::n ! i~ '1 J E /{ I I:t Iii: {-lid 1'1 Ci~:;. . . . . . . . . . .
I Tli"1::~ l[i··)ft,TT'v'FI .. ·{ 1.. Cj:3f II-! rr[f~ TIl:

G0 '::.>- .:) 0 .-. () 0
c' () .". () 0,,- () 0 0

I 1en (:,L ., F H r f',lll) r: I. Y I U;:)'1 DI:) CI D ',:r I'll:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . , .. .
I r r f?[:3 rUIHH' [(II·) Col' IT N (~ J:',)FL. Y I" US T Got] [J T H'W: • . . • . . . . . . . . . . . . . . . . . . . _._. __ "."........" ... _.".._,,___.

I

I (L. U~; I' UUU U f I d I::

r t, r: I' [,~ f~ I NU ( I F ,.~ P P'" J Ci~ BL E )

(I' h U::-I :I \i;~ 4 (,«' !:;[ C. ::','>:L. 4) . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . , . . ...o.?::-9.9.::.99._....",,__.

T Ul'td" I·; UU 0 l Ti'! I·:: IJT r 1·1 HE 1...1:) ( J. F A P PL. J C,,:) BU::) . . . . . . . . . . . . . . . . . . . . . . . . . ,,_Q? :::.9"R.:::.9..o_.._..___.

I C".,I,:~ N;~ (d.. I...

F F: E C C'I;\i i'i L N UF IH L.:I 1'1 [. 4 1'11 N U;; L. I NEE:) . . . . . : . . . . . . . . . . . . . . . . ".9. Q::.-9.9_=.Q.Q._."...___

I FI F {:, h r:H~ ::; . ".."~~.~.tI.~~.~ . ?.~. "lI:l3:~. _.a.:~9:" ".~Q?'-.- ..... !'1.a.:y... !_~c:l.PpJy - SiJ.te[ . ,,~.l,l G~_~ $. !';:E"u.]' '" - - -" "'''-'''''-''-''--'--' . "." ..............c::.C?I,I1p~.~~J.qrl_.o..f." P!..c?gE?!I!~.: _____._,,_." ... _.. __ .. "." .. _........ __ " .... __ . ____ . _. ___ ......._._.."....,,__.._._.._

I I

r I l I I:'I,.', I I I- 1-''.'"I'1 .'I (.I/.') I.1 (~I II:. "

'11'

I (-." '" 131 .( ,(-:'1i'1 1:-.1-.I ,") I-I ~.

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• • • • • • ' •.• __ •.• _ ............. _ .........................._ •• _.

" r .. ,...........-.. _.. _....... --.- -" ...--.. ?._.?......................."........... _....._..... . ~ --1t/ 1~ ~

)?...

··I....~~l."!:·¢C!'. ~

~:; UiIH'I'1 1.I FU: (I i: (:i In 11;: !.j (:'1 /',)

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I.J (~ Tr::.

I. HL!F':::F~JI'·lf'I:NOCNr '::; (.Cf'JUN

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DE" E ImI NrH :I Oi-J

Sr'FCJ ry

: ,,-:"_._-_. ... - -. ... ' ......... .... " ................. ". -" ... -. -' -. ~"'"'''' _...... _.......... ... " ..........." "".......... _. -. -.._.... -'''''''''' ..... -. -,," " ....,,-.......................

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. r------. '---- , - \ . - - . - -....L.LJ

II. c~~_z:
UtilE

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- --- - _ _--- ..........." ............. " ........ ~~ .. .........." .......' ..................... ,....•.... _. _.... .." -.;.. ..., ..... -...... _. " ............ '............. _................~ ,.... _...................,....................,......-....., ..........._..-.......... .....

(!U rJc::~ ru U·,ii'itl 1'1::: PUF:bUtlNl TU )' NYCrW, CI"I(~PT[I~ v J p,~rn 26? 1'i1..1.. Tli·q:;: N .. I_iJlJ·-

I

(d·!i::!' (lI:C]!:;lCII'J~:; ("~:[ PC·\):rF~I[n (':dJl[lii,-:\'IIC(~IL.LY 8Y' THf: C:Dl1i--US~:;ION::P UI~ I'II~; D[~3I(3 ....

NEE::. ·l.WI~OFCJ:·:;J(lL1 PI:'. ·THI;: CDi,\i1J;:;::;JClNl:'l} pH 'HI:~ DF~~;Tr·~!>l!·:·F Ie; o.:·l!·J,~·!1

YUU j·i,~y

P[(;liJ,~!:;l F:E C:UN':;] DE F:(:,THIN [Ii: (~,NY nECJ!nDN TD 1-11'1 III-lULU DDDD ., Hi[ F:'y' ~HnTINU

I

TU 1'1-1:: ::t,CILTry T1111:: {>,1.IUI~I"'lNC:F C()I"\11[f"r~:'F CHAJI~I'itol~.
r: I:t :r h l F:I Hl.I II CI N: Ci: (!J I;: (~d_ CI r: r :J c: /: [i U:r /) (VW I:: UN IT, :J Ni"l (1'1 F J F' til:': U; E U:= F :r CF. J r (.1 C F J L.

---~--
Exhibit E

~---------~~-~,-
I. ,,

I

activities -rather than rote memorization and verbalization of concepts.

•

A willingness to abide by ali prohibitions and restrictions ordered by the

~

I

Court and/or recommended by the sex offender counseling staff.

.

.

By the end of Phase I of the Sex Offender Counseling Program, offenders should

I

show substantial efforts toward achieving the qualities outlined above. If an offender cannot demonstrate the above, he/she is to be terminated from the program as

I

unsatisfactory. While an offender may reapply for admission to the Program within a given time period, to be determined by sex offender counseling staff and . not to exceed

six months, the offender must demonstrate to counseling staff that attitudes, denial

I

and behavior patterns counter-productive to the counseling process have changed.

OJ'l4cWA CORRECTIONAL FAClJJn

I

Program Refusal

'~ LAW UBRAJ=i'f ,~~.'.

An offender may choose to ref~'~~"parti~i'p~ti~n i~ th'~S'~~"Off~;~'d'er Counsel\ng

I

Program. If the offender refuses to be available for the intake and assessm~nt

interview, or refuses to complete and sign all forms during the interview, or r?fuses to

I

participate at any time before the Program begins, the Refusal Form shouldJ)e , completed. An offender who refuse~the Program should be made aware of-:.the_

ne ive im t his/her decision ma have on the Earn;d Eli ibilit rocess',! NYS

I

Board 0 . arole decisions, Time owance Committee decisions, the Board of Examiners of Sex Offenders assessment, and other DOCS programs he/she may_

wish to garticipate in, such as the Family Reunion Program. The refusal of an offender

I

to participate in the Sex Offender Counseling Program shall be noted clearly in a chrono entry in the offender's Guidance Unit file.

I
An offender who refuses the Sex Offender Counseling Program may be given one

second and final opportunity to participate, after one year from his/her initial refusal but

not within one year of his/her Conditional Release Date or thereafter, unless specified-

I

b a Time Allowance Committee that rna 'thhold the eamin of" ood f elf until the

pffender SJ lccessfu\ly completes the_-..-ex 0_ ender Counseling Program. .n t ose.

I

will instances where "good time" is withheld and the offender now wishes to participate, the
offender be referrea~to-·-a Sex-Offender'~CounseITn-g-ProgrambufwiTInot be given'

any priority status for admission and will be placed in the Program at the discretion of

I

the sex offender counseling staff, when there may be a group opening nf,;1t Aeeded by another offender who has been awaiting placement in the Program anQ V\h6 has not

previously refused the Program.. It is the offender's responsibility to contact his/her

I

assigned Corrections Counselor to ask for a second opportunity to participate.' Until
the offender makes this contact, he/she will continue to be considered as a refusal.

I

1-

15

I

I -, II "
s
I I
I I I I

•/~'.

\

_-">-( -'--"-'/Y~'f,,-' 1

O-:i ""'---p'---!

_

_

_

_ C

0

RREeTI 0

N A L

FA e

III TY

SOP REFUSAL

I \J,~<.,d Q~'i~2r7<~~

DIN _q-,-9~I)L-~/~Y~tL'?':.-.-'_ _ _ _ _ _ _ __

am refLsing to participaie in the Sex Offender Progra~.

I understand that this decision may result in any of tr:e foliowing:

F.e::-Jmmendation by the Time Allowance Cor::r;-°ltt8e to withhold Good Time.

Negative recommendation to the Parole Boare.

Denial of Earned Eligibility Certificate.

No further opportunity to participate in a sex offender counseling program at other facilities.

Date

I

Comments / Reason(s) for Refusal .l...o·) :YN'~I~~C (1/'.(0-.<./ AN

rJlu~ .
I

I

i- t IN&f'>;AANJ H/I~t L0? &f'~ ~<: ,,:; t- k.' ~a d;AN'~ Q.a -.Lo'y> IN ~hL C;::.~~\0

p.L·>'I~ t ~c!Vl,JtN%
Q....c~~ I "Ii) ~ thA~

I

I Counselor's Signature
I

7 IOate

I

cc:

Guidance folder (original)

I

Parole SOP File

...
I.'.

I

OCF Form #2560 Rev. 12/99

I .

•

t ~ ~ ..
I

D
ONEIDA ASSESSMENT UNIT

I

NAME __________________________ DIN _____________
I PAROLEBOARD ________________

I

INSTANT OFFENSE ______________

I

RECOMMENDED FOR SEX OFFENDER COUNSELING? YES

NO

INMATE WILLING TO PARTICIPATE? YES

NO ___

I

REASON FOR REFUSING PROGRAM:

I I "

I ·1 understand that my refusal to participate in the Mandatory Sex Offender Program

I

may result in any of the following options:

-Issuance of a Misbehavior Report

I

-Recommendation by the Time Allowance Committee to withhold Good Time -Notification to the Parole Board

-Denial of an Earned EJigibility Certificate

I

-No future opportunity to participate in a Sex Offender Counseling Program at other facilities

I

Inmate Signature

I

Staff Signature

Date

I

I,'•

Original: Guidance File cc: MSOP Counselor Parole

I

Exhibit F

~
1:1', j.
.1,1' :
I I I
,
I i
I
I f
I
I I I I I I I ,
I
I

• •

ONEIDA CORRECTIONAL FACILITY

Operations Manual Policy and Procedures
" (j '.
Chapter: INMATE RIGHTS

Date

Page of

01/01/88

1 2

Revie~ea-~/03/00

iX' Re'l~~ed

Ac~tandardS: -I

/-~I

OCF 14.03P.&!
3-439!:

Subject: Operational Progranmint;

Department Directive(s):

Approved: Date:

r

_ _ . .----J ,

------~~4~-)-~--L-.--c-;----------c-D ~-}-~=' L-- G-c-:-> :->-o ---

Superintendent

I. II. III.
IV. V.

AUTHORITY: superintendent.

PURPOSE: To describe the policies, which allow each inmate to choose frorr the variety of available programs.

APPLICABTLITY: To all inmates, to all employees who are involved in the planning,: management, or operation of inmate program activity and especially to employees assigned to the departments listed in section V-A. of this document.

DEFINITIONS: None.

POLICY:

A. All inmates are provided the option of refusinqto participate in all

and ~ogranuning exce~ a work program, Adult Basic Education, Pre-GED

~uca£~on

programs required by statute or court order, The optional

Rroqrams available in this institution include the follow~ng

activities or services:

1- Vocational Training (Chapter 20)

2. Religious Services (Chapter 23)

3. Social Services and Counseling (Chapter 24)

4. Psychological Services (Chapter 24)

5. Psychiatric Treatment (Chapter 13)

6. Library Services (Chapter 21)

7. Athletic and Recreational Activity (Chapter 22)

8. Involvement with Community Groups (Chapter 26)

9. Educational Program Above the Eighth Grade Level (Chapter 20}

10. Mail and Visiting Services ( Chapter 16)

II. Contacts with the News Media (Chapter 14)

12. contact with attorneys or legal representatives (Chapte~

14)

13. Volunteer programs (Chapter 26)

.x 14. Inmate classification (Chapter 18) 15. Sexual Offender'S Prog~am (ChaFt2r 24)

..-/' ~ \.1 j~.; C· ;:~ L::j~) t~ -~ t"; r-= ~,~~ ;.~) ~ ,1.: -~ '.. _J.~,..,.. L\~'\f L~ f3 F{/\F~.\i .-

AFfiDAVIT OF SERVICE BY MAIL
,"
e.

STATE OF NEW YORK ) COUNTY OF ONEIDA )

SS. :

I DAVID DONHAUSER/99B-1868, being duly sworn, deposes and says:

That I am the Plaintiff

, in the within proceeding, and

that I am over eighteen (18) years of age; reside at Midstate

Correctional Facility, PO Box 2500, Marcy, New York 13403, and in

the County of Oneida. That on the 21st
and on the 8th day of June, 2003
I served a true copy of the attached:

day of May
--~~-----

Notice of Motion, Affidavit, and Memorandum of Law in Support of Plaintiff's Motion for Preliminary and/or Permanent injunction Relief

upon the concerned party/parties at the following addresses

mentioned below, by placing said copies in a post-paid properly

addressed wrapper in a official depository under the care and

custody of the United States Postal Service within the State of New

York. DATED: June 17, 2003

TO:
Nelson R. Sheingold Asst. Attny. General (Defendant's Attorney) The Capitol Albany , New York 12224

to before

Signature

~
F NEW YORK

1 CHARLES L YOUMANS
NorMy Public, State of New York
Com"_"~-IIeNEdo..ix0n 1OpnYe0i "50e~~s,t ? b I

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

DAVID DONHAUSER,
Plaintiff,
-against-
GLENN S. GOORD, Commissioner,NYDOCS; MARTHA E. YOURTH, CSW Guidance Specialist; DOMINIC MARTINELLI, Sex Offender Program Counselor; SUE CARTER, S.C.C., Oneida Corr. Facility,
Defendants.

ANSWER Jury Trial Demanded
01-CV-1535 DNH/GHL

Defendants Glenn S. Goord, Martha E. Yourth and Dominic Martinelli,1 by their attorney, Eliot Spitzer, Attorney General of the State of New York, Nelson R. Sheingold, Assistant Attorney General, of counsel, answer the complaint as follows:
1. Affirmatively aver that on April 15, 2004, the Court dismissed plaintiff’s complaint except for plaintiff’s official capacity claim for injunctive relief brought pursuant to the Fifth Amendment. This answer is solely submitted for the named and served defendants in their official capacities as to the lone remaining claim.

1

Defendant Carter has never been served and has not appeared in this action.

2. Admit the allegations contained in paragraph 3 of the complaint to the extent that plaintiff is an inmate in the custody of the New York State Department of Correctional Services (“DOCS”) and was during all times relevant to this action.
3. As to the allegations contained in paragraphs 4, 6, 7, and 8 of the complaint, admit that the named individuals were employed by DOCS in substantially the positions listed during the time period relevant to this action.
4. As to the allegations contained in paragraphs 9 and 10 of the complaint, admit that due to his conviction for a sex crime plaintiff was referred to the Sex Offender Counseling Program and that plaintiff refused to accept the terms of that program. Deny all further allegations.
5. As to the allegations contained in paragraphs 11, 12, 13, and 14 respectfully refer to the letters referenced as the best evidence of their contents and deny any allegations contrary to the actual contents of such letters.
6. As to the allegations contained in paragraph 18 of the complaint refer to the policies, procedures and manual of the DOCS Sex Offender Counseling Program as the best and most complete evidence of its contents and deny any allegations contrary to the contents of such.
7. As to the allegations contained in paragraphs 15 and 16 of the complaint, refer to the decisions of the New York State Board of Parole and DOCS Time Allowance Committee as the best and most complete evidence of their contents and deny any allegations to the contrary of the contents of those determinations.
2

8. As to the allegations contained in paragraphs 19 of the complaint, aver that plaintiff’s due

process claim has been dismissed pursuant to the Court’s April 15, 2004 Order. To the extent a response

is required, defendants deny all allegations.

9. Deny the allegations contained in paragraph 5, 17, 20, 21, and 22 of the complaint.

10. Deny any allegation of the complaint not specifically responded to above.

Defenses

11. The complaint fails to state a claim upon which relief can be granted.

12. The complaint is barred, in whole or in part, under the Eleventh Amendment.

13. Plaintiff has failed to exhaust administrative remedies.

Demand for a Trial by Jury

14. Defendants Glenn S. Goord, Martha E. Yourth and Dominic Martinelli hereby demand a

trial by jury.

WHEREFORE, DefendantsGlennS. Goord, Martha E. Yourthand Dominic Martinellirespectfully

ask that this Court deny the relief requested, dismiss the complaint, and grant such other relief as to the

Court shall seem is just and equitable.

Dated: Albany, New York May 7, 2004

ELIOT SPITZER Attorney General of the State of New York The Capitol Albany, New York 12224-0341

By: /s Nelson R. Sheingold Assistant Attorney General, of Counsel Bar Roll No. 601895 Telephone: (518) 473-3682

3

TO: David Donhauser 99B1868 Plaintiff pro se Mid-State Correctional Facility P.O. Box 216 Marcy, NY 13202-0216

Fax: (518) 402-2221 (not for service of papers) nelson.sheingold@oag.state.ny.us

4

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

DAVID DON HAUSER, vs

Plaintiff,

GLENN S. GOORD, Commissioner of the New York State Department of Correctional Services; MARTHA E. YOURTH, CSW Guidance Specialist; DOMINIC MARTINELLI, Sex Offender Program Counselor; and S. CARTER, S.C.C., Oneida Correctional Facility,
Defendants.

01-CV-1535

U. S. DISTRICT COURT It D. OF N. Y.
FILED

FEB 1 5 2005

AT

O'CLOCK_M

LAWRENCE K. BAERMAN, Clerk

UTICA

APPEARANCES:

OF COUNSEL:

DAVID DONHAUSER, 99-B-1868 Plaintiff, Pro Se Mid-State Correctional Facility P.O. Box 2500 Marcy, New York 13403-2500

ROBERT N. ISSEKS, ESQ. Attorney for Plaintiff 6 North Street Middletown, New York 10940

HON. ELIOT SPITZER Attorney for Defendants Attorney General
for the State of New York The Capitol, Litigation Bureau Albany, New York 12224-0341

NELSON R. SHEINGOLD, ESQ. Assistant Attorney General

DAVID N. HURD United States District Judge

DECISION and ORDER

Plaintiff David Donhauser ("Donhauser") moved for class certification. Defendants

opposed. The motion was taken on submission without oral argument.

The prerequisites to a class action are: "(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a). In addition, one of three alternatives must be established. First, a class action is maintainable if separate actions by the class members would create a risk of inconsistent adjudications that would "establish incompatible standards of conduct for the" opposing party, or individual adjudications "would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests." Id. 23(b)(1). Alternatively, where "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole," a class action may be maintained. lQ. 23(b)(2).
Finally, a class action may be maintained where common questions of law or fact "predominate over any questions affecting only individual members, and [] a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Id. 23(b)(3). In making these determinations, pertinent matters to consider include:
(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (8) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; [and] (0) the difficulties likely to be encountered in the management of a class action. lQ. A careful review of plaintiff's submissions as well as the submissions by numerous nonparty prisoners establishes that this action meets the numerosity, commonality, typicality, and
-2-

adequate representation prerequisites of Rule 23(a). Moreover, this is clearly a case where final injunctive relief should not be limited to Donhauser, but rather extend across the class. See Fed. R. Civ. P. 23(b)(2).
Contrary to defendants' assertion, a class can be defined that will not necessitate indefinite individual determinations of a fact-specific nature. Rather, the parameters of the class can be narrowly defined such that fact-finding is not necessary to a determination of the class membership.
Accordingly, it is ORDERED that 1. Plaintiff's motion for class certification is GRANTED; and 2. The class is defined as follows: "Current or former New York State prisoners who have lost or been denied good time credits or have been threatened with the loss or denial of good time credits because of a refusal to admit guilt to criminal sexual conduct as part of the Sexual Offender Counseling Program." IT IS SO ORDERED.
Dated: February 15, 2005 Utica, New York.
- 3-

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

TIMOTHY J. TAYLOR,
v.

Plaintiff,

NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES,

Defendant.

9:05-CV-0543
u.s: DISTRICT COURT N.D. OF NY FILED

APPEARANCES

lAWRENCE K.S~AN, CierI<
lJ11Cff.

TIMOTHY J. TAYLOR Plaintiff, pro se 94-B-2378 Cayuga Correctional Facility P.O. Box 1186 Moravia, New York 13118

DAVID N. HURD United States District Judge

ORDER

Presently before the Court for review is an amended complaint from pro se

plaintiff Timothy J. Taylor. Dkt. No. 6. 1 Taylor filed his amended complaint in

accordance with this Court's prior Order in this action. Dkt. NO.4.

By his amended complaint, plaintiff more clearly sets forth his claims relating to

his participation in the Sex Offender Counseling Program. In addition, it is clear from

the amended complaint that plaintiff seeks to have this action consolidated with

Danhauserv. Goard, 9:01-CV-1535 (DNH/GHL), a class action lawsuit currently

1 Plaintiff has also submitted a supplemental Affidavit of Merit/Amended Complaint. Dkt. NO.8.

, pending in this District which challenges certain aspects of the New York State Department of Correctional Services ("DOCS") Sexual Offender Counseling Program. 2 Upon review of plaintiff's amended complaint and affidavit of merit, the Court finds that common questions of law and/or fact are presented in Donhauser and in this action. Therefore, the Court hereby consolidates these actions, with this action being deemed a member case. Fed.R.Civ.P.42(a). WHEREFORE, it is hereby ORDERED, that this action is consolidated with Donhauser v. Goord, 9:01-CV1535 (DNH/GHL), and it is further ORDERED, that Donhauser shall be the lead case, and this action shall be deemed a member case, and it is further ORDERED, that the Clerk file and docket a copy of this Order in Donhauser, 9:01-CV-1535 (DNH/GHL), and it is further ORDERED, that the Clerk serve a copy of this Order on plaintiff and on the parties in Donhauser. IT IS SO ORDERED.
Dated: July 22, 2005 Utica, New York.
2 In Donhauser, this Court issued a preliminary injunction on April 23, 2004 ordering that "defendants and persons acting under their direction and/or control are enjoined from depriving a prisoner of good time credits because of the prisoner's refusal to divulge a history of sexual conduct, including illegal acts for which no criminal charges have been filed, in order to be eligible for the Sexual Offender Counseling Program." 9:01-CV-1535, Dkt. No. 85. Plaintiff's amended complaint states that his intention is to become part of Donhauser. Dkt. No.8 at 1.
2

3

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

JOSEPH GARCIA,

Plaintiff,

-v.-

9:04-CV-1117

(GLS)(DEP)

GLEN S. GOORD, Commissioner of DOCS; MICHAEL MAHER, Acting Superintendent,

Defendants.

APPEARANCES:

OF COUNSEL:

JOSEPH GARCIA Plaintiff, pro se

HON. ELIOT SPITZER Office of the Attorney General

MARIA MORAN, ESQ.

GARY L. SHARPE, U.S. DISTRICT JUDGE DECISION and ORDER
I. Background. The Clerk has sent to the Court a letter motion seeking a stay of this action filed
by the defendants. Docket No. 12. This action was filed on September 24, 2004. The defendants have been
served, but have not responded to the complaint. Rather, defendants seek to stay this action pending a decision from the Second Circuit Court of Appeals in Donhauser v. Goard, 317 F. Supp.2d 160 (2004). Plaintiff has not filed a response to the defendants' request.
The complaint alleges that the defendants have violated plaintiffs Fifth Amendment rights. The nature of the alleged violation is a requirement that plaintiff admit to uncharged sexual acts as part of a Sex Offender Counseling Program. Plaintiff

alleges that his failure to acquiesce in the requirements of the program resulted in his
loss of good time credit. The claim is based upon Judge David N. Hurd's prior rulings in
Donhauserv. Goord,9:01-CV-1535.' One of the two defendants named in this action
is also a defendant in Donhauser.
II. Discussion.
A. Consolidation with Donhauser.
Rule 42 of the Federal Rules of Civil Procedures provides, in pertinent part:
When actions involving a common question of law or fact are pending before the court ... it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
The Court finds that common questions of law and fact are presented in
Donhauser and this action. Thus, the Court will order that this case be consolidated
with Donhauser, and this action shall be deemed a member case.
B. Motion for Stay.
With respect to defendants' motion to stay this action, and not requiring
defendants to respond to the complaint until the Court of Appeals has decided the
appeal in Donhauser, the Court finds that same may be granted.
WHEREFORE, it is hereby
'In Donhauser, Judge Hurd issued a preliminary injunction on April 23, 2004 ordering that "defendants and persons acting under their direction and/or control are enjoined from depriving a prisoner of good time credits because of the prisoner's refusal to divulge a history of sexual conduct, including illegal acts for which no criminal charges have been filed, in order to be eligible for the Sexual Offender Counseling Program." Docket No. 85.
On February 15, 2005 Judge Hurd has also granted class certification in Donhauser, with the class defined as "Current or former New York State prisoners who have lost or have been denied good time credits or have been threatened with the loss or denial of good time credits because of a refusal to admit guilt to criminal sexual conduct as a part of the Sexual Offender Counseling Program." Docket No. 127.
2

ORDERED, that the Clerk of the Court consolidate civil actions Donhauser v.

Goord, 9:01-CV-1535 and Garcia v. Goord, 9:04-CV-1117. The Clerk shall reassign

Garcia v. Goord, 9:04-CV-1117 to the Hon. David N. Hurd, as presiding District Judge,

and refer such case to George H. Lowe, as Magistrate Judge. Civil action number

9:01-CV-1535 shall be referred to and treated as the "lead" case, and all subsequent

Orders of the Court, and papers that are submitted by the parties hereto that pertain to

any of the foregoing actions shall be filed in civil action number 9:01-CV-1535, and it is

further

ORDERED, that the Clerk file and docket a copy of this Order in case number

9:01-CV-1535, and it is further

ORDERED, that the motion for a stay of defendants' deadline to respond to the

complaint pending a decision on the appeal in Donhauser (Docket No. 12) is granted,

and it is further

ORDERED, that the defendants shall file a response to the complaint in

accordance with the Orders of Judge Hurd or Magistrate Judge Lowe, following the

Second Circuit's decision on the appeal in Donhauser v. Goord, and it is further

ORDERED, that the Clerk serve a copy of this Order on the parties in

accordance with the Local Rules.

IT IS SO ORDERED.
Dated: December Cj ,2005

Gaq2iPsL. S~
United States District Judge

3

 
 ANDREW M. CUOMO Attorney General

STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL
Writer Direct: (518) 474-5288 March 13, 2008

S TA TE CO U N S E L D IV IS IO N Litigation Bureau

Honorable David N. Hurd United States District Judge United States District Court Northern District of New York Alexander Pirnie Federal Building 10 Broad Street Utica, NY 13501
Re: Donhauser v Goord, et al. Northern District of New York 01-CV-1535 (DNH)(GHL)
Dear Judge Hurd:
Enclosed please find the private settlement agreement in connection with the above class action, which has been signed by myself and Mr. Isseks. It is my understanding that the parties and the Court will now discuss the method of notice to the class members.
Thank you for your consideration of this matter.
Respectfully yours,
s/ Megan M. Brown
Megan M. Brown Assistant Attorney General Bar Roll No. 507122 Megan.Brown@oag.state.ny.us

Enclosure
cc: Robert Isseks, Esq. via ECF
T h e C a p ito l, Albany, NY 12224-0341  (518) 474-4441  Fax (518) 473-1572 * NOT FOR SERVICE OF PAPERS

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

DAVID DONHAL:SER,
Plaintiff,
-against-
GLENNS. GOORD, Commissioner, NY DOCS; MARTHA E. YOURTH, CSW Guidance Specialist; DOMINIC MARTINELLI, Sex Offender Program Counselor; SUE CARTER, S.C.C., Oneida Corr. Facility,
Defondants.

01-CV-1535 DNHIGHL

SETTLEMENT AGREEMENT I. Introduction
A. Plaintiffs in this class action comprise ·'current or former New York State prisoners who have lost or been denied good time credits or have been threatened with the loss or denial of good time credits because of a refusal to admit guilt to criminal sexual conduct as part of the Sexual Offender Counseling Program." The action was filed by David Donhauser on October 10,2001, seeking declaratory and injunctive relief for alleged violations of his rights under the Fifth Amendment to the United States Constitution. 1 In the Second Amended Complaint, plaintiffalleged that various Department of Correctional Services (DOCS) officials violated his Fifth Amendment right against self-incrimination by denying him parole and threatening to deny him good time based on his refusal to participate in DOCS· Sex Offender Counseling Program (SOCP}, a therapeutic
1 Procedurally the posture of the case has changed since the original complaint was filed, plaintiff's First and Fourth Amendment claims and claims for compensatory damages were dismissed; in addition, the class was certitled following opposition from defendants on February 15, 2005.

program for sex offenders that requires participants to discuss their history of sexually offending behavior2 Plaintiff alleged that if he refused to divulge such information in connection with the SOCP, he would automatically lose his good time credits. Plaintiff alleged that this constituted a violation of his Fifth Amendment right against self-incrimination.
B. The defendants deny any and all allegations, including but not limited to the allegations in the Second Amended Complaint asserting violations of the plaintiffs Fifth Amendment right against self incrimination based upon the requirement that inmates discuss their history of sexually offending behavior in SOCP.
C. Defendants in this case are all sued in their personal and official capacities. D. For purposes of this Settlement Agreement (hereinafter also referred to as Agreement and Settlement Agreement). the term "Parties" shall include the plaintiff class and the Defendants in their official capacities. E. This Settlement Agreement is submitted and entered into as a settlement of all claims, including but not limited to the claims for declaratory and injunctive relief set forth in plaintiffs Second Amended Complaint. F. On February 15, 2005. the Court granted plaintiff's motion for class certification over the opposition of the defendants.
2 In October 2001, DOCS instituted a standardized six month long SOCP, which is the subject of this lawsuit. In November 2007, following enactment of New York Correction Law § 622, DOCS began implementation of a Sex Offender Counseling and Treatment Program (SOCTP) consistent with current best practices in the field ofsex offender treatment. The new SOCTP provides different levels of treatment based on an offender's risk level as determined utilizing actuarial risk assessment instruments and any special needs of the individual offender. The new SOCTP includes six month long modular programs for low risk offenders, residential therapeutic community programs staffed by psychologists and licensed social workers for moderate to high risk offenders, and a number of
2

G. The class representatives seek, on behalf of themselves and the PlaintitT Class,

injunctive and declaratory relief against the defendants to remedy alleged violations oftheir Fifth

Amendment right against self-incrimination.

H. The plaintiffs and defendants mutually desire to settle all claims asserted in the

Complaint.

I.

The plaintiffs and defendants agree that in the absence of a settlement, members of

the Plaintiff Class are likely to assert substantially similar claims with respect to the practice of

requiring disclosure of past sexual offending behavior in connection with DOCS' new Sex Offender

Counseling and Treatment Program (SOCTP).

J.

Counsel tor the Parties have been engaged in negotiating this Agreement tor

approximately two months, the resulting Agreement, subject to approval by the Court upon notice to

members of the Plaintiff Class, will settle all the declaratory and injunctive claims in this action.

K. The terms of this Settlement Agreement shall remain in effect tor a period for two (2)

years from the date that the Agreement is signed by the parties and shall be binding on the parties,

their successors, agents, employees and all persons acting in concert with them.

II. IT IS AGREED BY AND BETWEEN THE PARTIES AND THEIR RESPECTIVE COUNSEL AS FOLLOWS:

1. Limits of Confidentiality, Partial Waiver of Confidentiality and Acknowledgment A. During the life of this Agreement, the Department ofCorrectional Services shall upon
admission of any inmate into any DOCS SOCTP provide to each participant a "Limits of Confidentiality, Partial Waiver of Confidentiality and Acknowledgment" form to be signed by the

specialty programs for offenders with special needs. 3

inmate. The form shall set forth the program policy with respect to confidentiality and reporting
requirements. and shall include the following provisions:
I understand that the primary purpose of the program is to reduce the likelihood of reoffending by assisting me to control my chain of behaviors that lead to sexual offending. I also understand that I am not required to admit the commission of a particular crime. whether it resulted in the present commitment or not.
Rather, for successful program participation, I may discuss my behavior in general terms without providing the full names ofvictims, without disclosing the exact dates, times, and places of various sexual offending behavior, and without admitting to any specific crime or the violation of any specit1c section ofthe Penal Law. Nonetheless, I must openly and honestly discuss the behavior that resulted in my incarceration and referral to the program, demonstrate acceptance of responsibility for the conduct that resulted in my criminal conviction and demonstrate an understanding of my sexual offending behavior and cycle of abuse.
l have been advised that no \\Titten or oral statement made by me in eonjunction with treatment services rendered in connection with the Sex Offender Counseling and Treatment Program may be used against me in a subsequent criminal proceeding.
I have further been advised that I may not reveal in any subsequent criminal proceeding any information disclosed by another inmate in a group therapy session or otherwise disclosed in conjunction '"ith treatment services rendered as part ofthe Sex Offender Counseling and Treatment Program.
B. Counsel for the plaintiffs has been provided with the proposed "Limits of
Confidentiality, Partial Waiver of Confidentiality and Acknowledgment" dated March II, 2008, and
hereby acknowledges that the proposed form is satisfactory. The parties agree that the contents and
layout of the form may be subject to change, however, the immunity provision set forth in section
Il.I.A. of this Agreement shall not be changed during the term ofthis agreement absent a change in
the law or a court order prohibiting Defendants from continuing to grant sueh immunity, or upon
agreement by counsel for the parties.
2. Compliance Monitoring
4

A. In the event that plaintiffs' counsel finds that NYSDOCS is are not in substantial compliance with this Agreement, plaintiffs' counsel shall bring the facts supporting that beliefto the attention of defendants' counsel and give NYSDOCS an opportunity to investigate and correct the alleged problem prior to counsel seeking court intervention concerning such alleged substantial noncompliance.
B. Plaintiffs' counsel may communicate in writing. directly with 1\YSDOCS counsel's office in regard to complaints received by plaintiffs' counsel from class members concerning their participation in SOCTP. Also, plaintiffs' counsel will provide a copy of any such communication to defendants' counsel. NYSDOCS shall provide a wTitten, substantive response to any such complaint letter within 30 days of receipt of the complaint. 3. Notice
1\YSDOCS shall provide notice of the material terms of this Settlement Agreement by posting notices, with the content to be mutually agreed upon, describing the material terms of this Settlement Agreement. as well as contact information for class counsel and the Court. Class members shall have twenty (20) days from notification to file with the Court any objections they may have to the proposed settlement. The Court shall not give its final approval until the expiration of this period. 4. Meeting of Counsel
For a period of two (2) years from the time this Agreement is signed by the parties, if plaintiffs' counsel believes that the NYSDOCS is not in "substantial compliance," with the terms of this Agreement, plaintiffs' counsel may request a meeting with counsel for defendants and
5

NYSDOCS counsel at a mutually agreeable time and place to discuss and attempt to resolve the dispute(s). For the purpose of this Agreement "substantial compliance'' means NYSDOCS' failures or omissions to meet the terms of this Agreement were not minimal or isolated but were substantially and sufficiently frequent and widespread so as to be systemic. Any such request for a meeting made by plaintiffs' counsel shall be in writing. The parties will use their best efl'orts to schedule and attend such meeting(s) within thirty (30) days ofNYSDOCS' receipt ofplaintiffs' counsel's written request tor a meeting pursuant to this Paragraph. Nothing said by either party or counsel for either party during those meetings may be used by the opposing party in any subsequent litigation in this or any other lawsuit or tor any purpose other than implementing the terms of this Agreement. 4. Dismissal of Action
Upon the signing of this Agreement, all plaintiffs and defendants wi II jointly move the Court for entry of an Order dismissing this action pursuant to Federal Rules of Civil Procedure 23(e) and 4l(a)(l) and will attach a copy of this Settlement Agreement to such motion. 5. Term of Agreement
The terms of this Settlement Agreement shall remain in effect for a period of two (2) years from the date that the Agreement is signed by the parties and shall be binding on the parties, their successors, agents. employees and all persons acting in concert with them. After the two (2) year term, the terms and conditions ofthis Agreement shall automatically cease to bind the parties, as well as their successors, agents, employees, assigns and those acting in concert with them; and all claims on behalf of the plainti!Ts are discontinued and dismissed with prejudice. 6. Private Settlement Agreement
6

This Settlement Agreement is a "private settlement agreement" as that term is used in the Prison Litigation Reform Act (PLRA), 18 USCA 3626(c). If any provision of this Settlement Agreement is declared invalid, illegal or unenforceable in any respect, the remaining provisions shall remain in full force and effect, unaffected and unimpaired. 7. Resolution of All Claims
This Settlement Agreement shall resolve all claims or potential claims for injunctive relief identitled in the Complaint and that could arise from the allegations contained in the Complaint. This Agreement is not intended to restrict any defenses that may be available to defendants in any future claims, or the legal requirements, procedures, or standards to be employed in determining any such future claims. 8. Precedential Value
Nothing in this Agreement shall be construed as an admission or acknowledgment ofliability whatsoever by any of the defendants or the New York State Department of Correctional Services regarding any of the allegations made by the plaintiff in his complaint. This Settlement Agreement may not be used for any purpose other than enforcement of the provisions of this Agreement and shall not in any way be construed as precedent for any other present or future litigation. 9. Attorneys' Fees
Defendants will pay to plaintiffs' counsel $ 24,645.00 (twenty four thousand six hw1dred forty-five dollars) in attorneys' fees, associated with legal work on the t11e since counsels' involvement in 2004 including settlement negotiations, which shall be payable out of the fund established pursuant to Section 17 of the NYS Public Officer's Law (no costs have been requested or will be reimbursed). Payment ofthis amount is subject to the approval of all appropriate New York
7

State officials in accordance ""ith the provisions for indemnification under New York Public Officers Law, Section 17, subdivision 3(a). Should such approval be denied, the StipulationofDismissal and this Settlern~nt Agreement shall becom~ n~ll and void. In the event payment ofthe! sum is not m11de within one hundred and twenty (120) days after the receipt by defendants' counsel from plaintiffs' counsel ofa copy of the Stipulation ofDismissol with annexed Settlement Agreement. fully executed and "So Ordered" as entered by th~ Court. interest shall u~crue on the outstanding principal balance at !he rate set forth in 28 U.S. C. >ec 1961, beginning on the one hundred twenty-first day after said receipt by defendants' counsel of the fully executed "So Ordered" Stipu!..tion of Dismissal and continuing unlil payrr.ent is made. Plaintiffs >gree lo waiv.: any rights or claims to attorneys' fees, court costs, or disbursem10nis incurred durir.g the two (2) year period this Settlement Agreement is in effect.

Dated; Middletown, New Yor~
:'1.1~rch L3, 2008

ROBEl N. ISSI!KS, ESQ. Attorney for Plaimiffs Law Office of Robert K lsseks 6 North Street Middletown, New York 10940
Byhl~--
Rob<lrt N. lsseks, Esq. Arrorney fur Plaintiff Class Bar Roll# 507486 Tolephone: (845) 344-4322 Fax: (845) 341-1760 Email: JsseksCdlfrontierne'C.net

8

Dated: Albany, ~ew York March 13, 2008

ANDREW M. CUOMO Attorney General of the State of New York Attorney for Defendants Glenn S. Goord, Martha E.
urth. Dominic artinelli and Sue Carter TheCa tol Alban.
By: --JJ..t£'!:--'1~ Meg n M. Br Assistant Att n y General, of Counsel Bar Roll No. 507122 Telephone: (518) 474-5288 Fax: (518) 473-1572 (Not for service of papers.} Email: Megan.,!.kQ'!t1Vmoau.state.nv.us

The Court approves this Private Settlement Agreement as to form only.
Section 1 11-9 is so ordered by the Court.

Dated:

Utica, New York March . 2008

ENTER:

HO~. DAVID N. HURD ~ITED STATES DISTRICT COURT JUDGE

9

 
 .-

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

DAVID DON HAUSER, vs

Plaintiff,

9:01-CV-1535

GLENN S. GOORD, Commissioner, NY DOCS; MARTHA E. YOURTH, CSW Guidance Specialist; DOMINIC MARTINELLI, Sex Offender Program Counselor; and S. CARTER, S.C.C., Oneida Corr. Facility,
Defendants.

~y 13 2008
lAWRENCE K. BAERMAN. CIe& ] ··~un~._... __ .. - - t(~i{l'•.'• ''''·.--~'-'' ---. . _.. _.... I

APPEARANCES:

OF COUNSEL:

DAVID DONHAUSER Plaintiff, Pro Se 05-B-3138 Great Meadows Correctional Facility P.O. Box 51 Comstock, NY 12821-0051

ROBERT N. ISSEKS, ESQ. Attorney for Plaintiff 6 North Street Middletown, NY 10940

HON. ELIOT SPITZER Attorney General of the
State of New York Attorney for Defendants Department of Law The Capitol Albany, New York 12224

DOUGLAS J. GOGLIA, ESQ. Asst. Attorney General

DAVID N. HURD United States District Judge

ORDER

The attached Notice with the proposed Settlement Agreement attached is

approved.

DOCS will post the Notice in all facility law libraries, general libraries, inmate housing areas, and all Sex Offender Counseling and Treatment Program areas. Additionally, each facility Inmate Liaison Committee and Inmate Grievance Resolution Committee will be provided with a copy of the Notice.
The above must be completed no later than May 30, 2008. IT IS SO ORDERED.
Dated: May 13, 2008 Utica, New York.
-2-

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------)(
DAVID DONHAUSER,

Plaintiff,
-against-
GLENN S. GOORD, Commissioner, New York State Department of Correctional Services; MARTHA E. YOURTH, DSW, Guidance Specialist; DOMINIC MARTINELLI, Sex Offender Program Counselor; and S. CARTER, S.C.C., Oneida Correctional Facility,

I~!S 9:01-CV-§0i05
MAY 13 2008

Defendants.
----------------------------------------------------------------)(
NOTICE TO ALL PRISONERS HOUSED IN FACILITIES OPERATED BY THE N.Y.S. DEPARTMENT OF CORRECTIONAL SERVICES

The plaintiffs' and the defendants' attorneys have agreed to settle this class action

lawsuit pending in the United States District Court for the Northern District of New

York, which challenges the manner in which the New York State Department of

Correctional Services (DOCS) operates its Sex Offender Counseling Program.

This Notice provides class members with information about the proposed settlement and

how they can contact the attorneys for the class and/or the Court to ask questions or to

make objections about the settlement.

The class action was filed by David Donhauser ("plaintiff') on October 10, 2001,

seeking various forms of relief for alleged violations of his rights under the Fifth

Amendment to the United States Constitution. Plaintiff has alleged that DOCS officials

violated his right against self-incrimination by threatening to deny him good time based on his refusal to participate in DOCS' Sex Offender Counseling Program (SOCP), a therapeutic program for sex offenders that requires participants to discuss their history of sexually offending behavior. Plaintiff has alleged that if he refused to divulge such information in connection with the SOCP, he would automatically lose his good time credits.
On February 15,2005, plaintiffs motion for class certification was granted. The class is made up of all "current or former New York State prisoners who have lost or been denied good time credits or have been threatened with the loss or denial of good time credits because of a refusal to admit guilt to criminal sexual conduct as part of the Sexual Offender Counseling Program."
Attached to this Notice is a copy of the Settlement Agreement that is being proposed by the attorneys. It provides that during the life of the Settlement Agreement DOCS shall, upon admission of any inmate into any DOCS SOCP, provide to each participant a "Limits of Confidentiality, Partial waiver of Confidentiality and Acknowledgment" form ("the form") to be signed by the inmate. The form shall set forth the program policy with respect to confidentiality and reporting requirements and shall include the following provisions:
I understand that the primary purpose of the program is to reduce the likelihood of reoffending by assisting me to control my chain of behaviors that lead to sexual offending. I also understand that I am not required to admit the commission of a particular crime, whether it resulted in the present commitment or not.

Rather, for successful program participation, I may discuss my behavior in general terms without providing the full names of victims, without disclosing the exact dates, times, and places of various sexual offending behavior, and without admitting to any specific crime or the violation of any specific section of the Penal Law. Nonetheless, I must openly and honcstly discuss the behavior that resulted in my incarceration and referral to the program, demonstrate acceptance of responsibility for the conduct that resulted in my criminal conviction and demonstrate an understanding of my sexual offending behavior and cycle of abuse.
I have been advised that no written or oral statement made by me in conjunction with treatment services rendered in connection with the Sex Offender Counseling and Treatment Program may be used against me in a subsequent criminal proceeding.
I have further been advised that I may not reveal in any subsequent criminal proceeding any information disclosed by another inmate in a group therapy session or otherwise disclosed in conjunction with treatment services rendered as part of the Sex Offender Counseling and Treatment Program.
While the contents and layout of the form may be subject to change, the provisions set
forth above shall not be changed during the term of the Settlement Agreement absent a
change in the law or a court order prohibiting DOCS from continuing to grant such
immunity or upon agreement by counsel for the parties.
The settlement of this lawsuit will not become final until the members of the
plaintiff class have had an opportunity to object to the Settlement Agreement if they
choose to do so. After that, the Settlement Agreement must be approved by the Court. If
it is approved, the Court will then issue an order dismissing the lawsuit with prejudice and
the Settlement Agreement will remain in effect in accordance with its terms for a period
of two (2) years. The terms of the Settlement Agreement shall be binding on the parties,
their successors, agents, employees and all persons acting in concert with them. After the

two (2) year term, the terms and conditions of this Settlement Agreement shall

automatically cease to be binding.

The Settlement Agreement has been submitted as a settlement of all claims

asserted in this lawsuit. It is a "private settlement agreement" as that term is used in the

Prison Litigation Reform Act (PLRA), 18 USCA 362(c). If any provision of the

Settlement Agreement is declared invalid, illegal or unenforceable in any respect, the

remaining provisions shall remain in full force and effect, unaffected and unimpaired.

If you are a member of the class, you have the right to object to the proposed

settlement and to submit any supporting materials. You may do so on your own or

through an attorney of your choice. You may object to any aspect of the proposed

settlement. To make sure your objections are received by the Court and considered

at the hearing you must follow these instructions:

I. Make your objections in writing. If you are unable to write you may

request inmate legal assistance in accordance with Directive # 4483 entitled "Law

Libraries & Inmate Legal Assistance and Notary Public Services."

July 15,

2. Mail your written objections on or before

2008 addressed to:

Clerk of Court U.S. District Court Northern District of New York. Alexander Pirnie Federal Building 10 Broad Street Utica, New York 13501

Re: Donhauser v. Goord (0 I-CV-1535)

3. On the top of the first page of your objections, write the name and

number of the lawsuit: "Dollirauser v. Goord (0 I-CV -1535)" The Hon. David N. Hurd, USDCJ, will hold a hearing on July 29,
2008, at 10: 00 a.m. at the United State District Court for the Northern District of New York at Alexander Pimie Federal Building, 10 Broad Street, Utica, New York 1350 I, to decide if the settlement of the lawsuit on behalf of the class members is fair, reasonable and adequate and should be approved. Any objections mailed after July 15,
2008, will not be considered. Any class member who wishes to obtain additional information may contact the
attorneys for the plaintiff class:
Robert N. Isseks 6 North Street Middletown, NY 10940 (845) 344-4322

DECLARATION OF SERVICE BY CM/ECF DOUGLAS J. GOGLIA, does hereby declare under penalty of perjury, that the foregoing is being filed with the Clerk of the District Court using the CM/ECF system, which is sending notification of such filing to:
Robert N. Isseks, Esq.
6 North Street Middletown, NY 10940
I certify under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing is true and correct. Executed on May 1,2008.
DOUGLAS J. GOGLIA Assistant Attorney General Bar Roll No. 302406

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
DAVID DONHAUSER,
Plaintiff,
-against-
GLENN S. GOORD, Commissioner, NY DOCS; MARTHA E. YOURTH, CSW Guidance Specialist; DOMINIC MARTINELLI, Sex Offender Program Counselor; SUE CARTER, S.C.C., Oneida Corr. Facility,
Defendants.

01-CV-1535 DNH/GHL

SETTLEMENT AGREEMENT I. Introduction
A. Plaintiffs in this class action comprise “current or former New York State prisoners who have lost or been denied good time credits or have been threatened with the loss or denial of good time credits because of a refusal to admit guilt to criminal sexual conduct as part of the Sexual Offender Counseling Program.” The action was filed by David Donhauser on October 10, 2001, seeking declaratory and injunctive relief for alleged violations of his rights under the Fifth Amendment to the United States Constitution.1 In the Second Amended Complaint, plaintiff alleged that various Department of Correctional Services (DOCS) officials violated his Fifth Amendment right against self-incrimination by denying him parole and threatening to deny him good time based on his refusal to participate in DOCS’ Sex Offender Counseling Program (SOCP), a therapeutic
1 Procedurally the posture of the case has changed since the original complaint was filed, plaintiff’s First and Fourth Amendment claims and claims for compensatory damages were dismissed; in addition, the class was certified following opposition from defendants on February 15, 2005.

program for sex offenders that requires participants to discuss their history of sexually offending behavior.2 Plaintiff alleged that if he refused to divulge such information in connection with the SOCP, he would automatically lose his good time credits. Plaintiff alleged that this constituted a violation of his Fifth Amendment right against self-incrimination.
B. The defendants deny any and all allegations, including but not limited to the allegations in the Second Amended Complaint asserting violations of the plaintiff’s Fifth Amendment right against self incrimination based upon the requirement that inmates discuss their history of sexually offending behavior in SOCP, and note that the purpose of the program is to prepare offenders for release to society by equipping them with the knowledge that they will need to avoid committing future sex offenses, and by enhancing the likelihood that the inmate will be able to lead a prosocial, law abiding life upon release from custody.
C. Defendants in this case are all sued in their personal and official capacities. D. For purposes of this Settlement Agreement (hereinafter also referred to as Agreement and Settlement Agreement), the term “Parties” shall include the plaintiff class and the Defendants in their official capacities.
2 In October 2001, DOCS instituted a standardized six month long SOCP, which is the subject of this lawsuit. In November 2007, following enactment of New York Correction Law § 622, DOCS began implementation of a Sex Offender Counseling and Treatment Program (SOCTP) consistent with current best practices in the field of sex offender treatment. The new SOCTP provides different levels of treatment based on an offender’s risk level as determined utilizing actuarial risk assessment instruments and any special needs of the individual offender. The new SOCTP includes six month long modular programs for low risk offenders, residential therapeutic community programs staffed by psychologists and licensed social workers for moderate to high risk offenders, and a number of specialty programs for offenders with special needs.
2

E. This Settlement Agreement is submitted and entered into as a settlement of all claims, including but not limited to the claims for declaratory and injunctive relief set forth in plaintiff’s Second Amended Complaint.
F. On February 15, 2005, the Court granted plaintiff’s motion for class certification over the opposition of the defendants.
G. The class representatives seek, on behalf of themselves and the Plaintiff Class, injunctive and declaratory relief against the defendants to remedy alleged violations of their Fifth Amendment right against self-incrimination.
H. The plaintiffs and defendants mutually desire to settle all claims asserted in the Complaint.
I. The plaintiffs and defendants agree that in the absence of a settlement, members of the Plaintiff Class are likely to assert substantially similar claims with respect to the practice of requiring disclosure of past sexual offending behavior in connection with DOCS’ new Sex Offender Counseling and Treatment Program (SOCTP).
J. Counsel for the Parties negotiated this Agreement for approximately two months. The resulting Agreement, subject to approval by the Court upon notice to members of the Plaintiff Class, will settle all the declaratory and injunctive claims in this action.
K. The Notice of Proposed settlement was posted in all facility law libraries, general libraries, inmate housing areas, and all Sex Offender Counseling and Treatment Program housing and programming areas, and provided to the Inmate Liaison Committee and the Inmate Grievance Resolution Committee at each Correctional Facility beginning on or before May 30, 2008.
3

Thereafter, the Notice was supplemented by adding the proposed Private Settlement Agreement
dated March 13, 2008, and remained posted until at least August 29, 2008.
L. The Court received objections and comments from fifty (50) inmates, which have
been reviewed by Counsel for the Parties and addressed with the Court. As a result, certain
modifications have been made to the terms of this Settlement Agreement.
M. The terms of this Settlement Agreement shall remain in effect for a period for two (2)
years from the date that the Agreement is signed by the parties and shall be binding on the parties,
their successors, agents, employees and all persons acting in concert with them.
II. IT IS AGREED BY AND BETWEEN THE PARTIES AND THEIR RESPECTIVE COUNSEL AS FOLLOWS:
1. Limits of Confidentiality, Partial Waiver of Confidentiality and Acknowledgment
A. During the life of this Agreement, the Department of Correctional Services shall upon
admission of any inmate into any DOCS SOCTP provide to each participant a “Limits of
Confidentiality, Partial Waiver of Confidentiality and Acknowledgment” form to be signed by the
inmate after the inmate has had an opportunity to review the form with treatment staff. The form
shall set forth the program policy with respect to confidentiality and reporting requirements, and
shall include the following provisions:
I understand that the primary purpose of the program is to reduce the likelihood of reoffending by assisting me to control my chain of behaviors that lead to sexual offending. I also understand that I am not required to admit the commission of a particular crime, whether it resulted in the present commitment or not.
Rather, for successful program participation, I may discuss my behavior in general terms without providing the full names of victims, without disclosing the exact dates, times, and places of various sexual offending behavior, and without admitting to any specific crime or the violation of any specific section of the Penal Law. Nonetheless, I must openly and honestly discuss the behavior that resulted in my incarceration and
4

referral to the program, demonstrate acceptance of responsibility for the conduct that resulted in my criminal conviction and demonstrate an understanding of my sexual offending behavior and cycle of abuse. I have been advised that no written or oral statement made by me in conjunction with treatment services rendered in connection with the Sex Offender Counseling and Treatment Program may be used against me in a subsequent criminal proceeding. I have further been advised that I may not reveal in any subsequent criminal proceeding any information disclosed by another inmate in a group therapy session or otherwise disclosed in conjunction with treatment services rendered as part of the Sex Offender Counseling and Treatment Program. B. Counsel for the plaintiffs has been provided with the proposed “Limits of Confidentiality, Partial Waiver of Confidentiality and Acknowledgment” dated March 11, 2008, and hereby acknowledges that the proposed form is satisfactory. The parties agree that the contents and layout of the form may be subject to change, however, the immunity provision set forth in section II.1.A. of this Agreement shall not be changed during the term of this agreement absent a change in the law or a court order prohibiting Defendants from continuing to grant such immunity, or upon agreement by counsel for the parties.
2. Compliance Monitoring A. In the event that plaintiffs’ counsel finds that NYSDOCS is not in substantial
compliance with this Agreement, plaintiffs’ counsel shall bring the facts supporting that belief to the attention of defendants’ counsel and give NYSDOCS an opportunity to investigate and correct the alleged problem prior to counsel seeking court intervention concerning such alleged substantial noncompliance.
B. Plaintiffs’ counsel may communicate in writing, directly with NYSDOCS counsel’s office in regard to complaints received by plaintiffs’ counsel from class members concerning their
5

participation in SOCTP. Also, plaintiffs’ counsel will provide a copy of any such communication to defendants’ counsel. NYSDOCS shall provide a written, substantive response to any such complaint letter within 30 days of receipt of the complaint. 3. Notice
NYSDOCS has provided notice of the material terms of this Settlement Agreement by posting notices, with the content to be mutually agreed upon, describing the material terms of this Settlement Agreement, as well as contact information for class counsel and the Court as set forth in Paragraph I-K, above. 4. Meeting of Counsel
For a period of two (2) years from the time this Agreement is signed by the parties, if plaintiffs’ counsel believes that the NYSDOCS is not in “substantial compliance,” with the terms of this Agreement, plaintiffs’ counsel may request a meeting with counsel for defendants and NYSDOCS counsel at a mutually agreeable time and place to discuss and attempt to resolve the dispute(s). For the purpose of this Agreement “substantial compliance” means NYSDOCS’ failures or omissions to meet the terms of this Agreement were not minimal or isolated but were substantially and sufficiently frequent and widespread so as to be systemic. Any such request for a meeting made by plaintiffs’ counsel shall be in writing. The parties will use their best efforts to schedule and attend such meeting(s) within thirty (30) days of NYSDOCS’ receipt of plaintiffs’ counsel’s written request for a meeting pursuant to this Paragraph. Nothing said by either party or counsel for either party during those meetings may be used by the opposing party in any subsequent litigation in this or any other lawsuit or for any purpose other than implementing the terms of this Agreement. 4. Dismissal of Action
6

Upon the signing of this Agreement, all plaintiffs and defendants will jointly move the Court for entry of an Order dismissing this action pursuant to Federal Rules of Civil Procedure 23(e) and 41(a)(1) and will attach a copy of this Settlement Agreement to such motion. 5. Term of Agreement
The terms of this Settlement Agreement shall remain in effect for a period of two (2) years from the date that the Agreement is signed by the parties and shall be binding on the parties, their successors, agents, employees and all persons acting in concert with them. Consistent with the provisions of 18 USCA 3626 (b)(2), after the two (2) year term, the terms and conditions of this Agreement shall automatically cease to bind the parties, as well as their successors, agents, employees, assigns and those acting in concert with them; and all claims on behalf of the plaintiffs are discontinued and dismissed with prejudice. 6. Private Settlement Agreement
This Settlement Agreement is a “private settlement agreement” as that term is used in the Prison Litigation Reform Act (PLRA), 18 USCA 3626(c). If any provision of this Settlement Agreement is declared invalid, illegal or unenforceable in any respect, the remaining provisions shall remain in full force and effect, unaffected and unimpaired. 7. Resolution of All Claims
This Settlement Agreement shall resolve all claims or potential claims for injunctive relief identified in the Complaint and that could arise from the allegations contained in the Complaint. This Agreement is not intended to restrict any defenses that may be available to defendants in any future claims, or the legal requirements, procedures, or standards to be employed in determining any such future claims.
7

8. Precedential Value Nothing in this Agreement shall be construed as an admission or acknowledgment of liability
whatsoever by any of the defendants or the New York State Department of Correctional Services regarding any of the allegations made by the plaintiff in his complaint. This Settlement Agreement may not be used for any purpose other than enforcement of the provisions of this Agreement and shall not in any way be construed as precedent for any other present or future litigation. 9. Attorneys’ Fees
Defendants will pay to plaintiffs’ counsel $28,920.00 (twenty eight thousand nine hundred twenty dollars) in attorneys’ fees, associated with legal work on the file since counsel’s involvement in 2004 including settlement negotiations, which shall be payable out of the fund established pursuant to Section 17 of the NYS Public Officer’s Law (no costs have been requested or will be reimbursed). Payment of this amount is subject to the approval of all appropriate New York State officials in accordance with the provisions for indemnification under New York Public Officers Law, Section 17, subdivision 3(a). Should such approval be denied, the Stipulation of Dismissal and this Settlement Agreement shall become null and void. In the event payment of this sum is not made within one hundred and twenty (120) days after the receipt by defendants’ counsel from plaintiffs’ counsel of a copy of the Stipulation of Dismissal with annexed Settlement Agreement, fully executed and “So Ordered” as entered by the Court, interest shall accrue on the outstanding principal balance at the rate set forth in 28 U.S.C. sec 1961, beginning on the one hundred twenty-first day after said receipt by defendants’ counsel of the fully executed “So Ordered” Stipulation of Dismissal and continuing until payment is made. Plaintiffs agree to waive any rights or claims to attorneys’
8

fees, court costs, or disbursements incurred during the two (2) year period this Settlement Agreement is in effect.

Dated: Middletown, New York October 3, 2008

ROBERT N. ISSEKS, ESQ. Attorney for Plaintiffs Law Office of Robert N. Isseks 6 North Street Middletown, New York 10940

By: s/ Robert N. Isseks____
Robert N. Isseks, Esq. Attorney for Plaintiff Class Bar Roll No. 507486 Telephone: (845) 344-4322 Fax: (845) 341-1760 Email: Isseks@frontiernet.net

9

Dated: Albany, New York October 3, 2008

ANDREW M. CUOMO Attorney General of the State of New York Attorney for Defendants Glenn S. Goord, Martha E.
Yourth, Dominic Martinelli and Sue Carter The Capitol Albany, New York 12224-0341

By: s/ Douglas J. Goglia____
Douglas J. Goglia, Esq. Assistant Attorney General, of Counsel Bar Roll No. 302406 Telephone: (518) 474-7184 Fax: (518) 473-1572 (Not for service of papers.) Email: douglas.goglia@oag.state.ny.us

The Court approves this Private Settlement Agreement as to form only. Section 1 II-9 is so ordered by the Court.
Dated: Utica, New York October 3, 2008.
ENTER:

____________________________ HON. DAVID N. HURD UNITED STATES DISTRICT COURT JUDGE

10

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
DAVID DONHAUSER,
Plaintiff,
-against-
GLENN S. GOORD, Commissioner, NY DOCS; MARTHA E. YOURTH, CSW Guidance Specialist; DOMINIC MARTINELLI, Sex Offender Program COUNSELOR; SUE CARTER, S.S.C., Onieda Corr. Facility,
Defendants.

ORDER
Civ. No. 01-CV-1535 (DNH) (GHL)

ORDER On February 1, 2008, a teleconference was held, at which the attorneys for the respective parties – Robert N. Isseks, Esq., for the Plaintiffs and the Office of the New York State Attorney General for the Defendants – advised the Court that an agreement-in-principle had been reached with respect to the settlement of the above-captioned class-action lawsuit. (Docket Entry 177). A proposed Private Settlement Agreement was submitted for the Court’s approval on March 13, 2008. (Docket Entry 184), and a further teleconference was held on March 18, 2008, during which the Court and Counsel addressed the issue of notifying potential class-members of proposed settlement. (Docket Entry 185). The parties thereafter submitted a Notice of ClassAction Settlement for the Court’s consideration, and by Order dated May 13, 2008, the Court approved of the Notice and directed that it be posted in all correctional facility law libraries, general libraries, inmate housing areas, and all Sex Offender Counseling and Treatment Program aras. (Docket Entries 192 and 194). Thereafter, an objection to the proposed settlement was submitted to the Court by plaintiff David Donhauser, and numerous other objections were

submitted under seal by other potential members of Class. (Docket Entries 190, 195-222, 224227). The objections filed under seal were forwarded to the attorneys for the respective parties, each of whom submitted letters in response to both Mr. Donhauser’s objections, and those submitted by other potential class members. (Docket Entries 190, 191, 231, 232). A teleconference was held on September 23, 2008, and the attorneys for the parties were directed to submit a revised Private Settlement Agreement. (Docket Entry 234). The Court has read and considered the revised Private Settlement Agreement dated October 3, 2008 , all of the objections that have been submitted to the Court, and the responses to those objections submitted by Counsel. Based upon the foregoing, the Court concludes that the Private Settlement Agreement is fair, reasonable and adequate. Accordingly, the Private Settlement Agreement dated October 3, 2008 is approved, and this class action is hereby dismissed with prejudice. IT IS SO ORDERED.
Dated: Utica, New York October __, 2008
ENTER:
_____________________________ HON. DAVID N. HURD U.S. District Court Judge
2

DECLARATION OF SERVICE BY CM/ECF
DOUGLAS J. GOGLIA, does hereby declare under penalty of perjury, that the foregoing
is being filed with the Clerk of the District Court using the CM/ECF system, which is sending
notification of such filing to:
Robert N. Isseks, Esq. 6 North Street Middletown, NY 10940
I certify under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing is true
and correct. Executed on October 3, 2008.
s/ Douglas J. Goglia
DOUGLAS J. GOGLIA Assistant Attorney General Bar Roll No. 302406

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

DAVID DONHAUSER, vs

Plaintiff,

9:01-CV-1535

GLENN S. GOORD, Commissioner, NY DOCS; MARTHA E. YOURTH, CSW Guidance Specialist; DOMINIC MARTINELLI, Sex Offender Program Counselor; and S. CARTER, S.C.C., Oneida Corr. Facility,
Defendants.

CLASS ACTION

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

APPEARANCES:

OF COUNSEL:

DAVID DONHAUSER Plaintiff, Pro Se 05-B-3138 Great Meadow Correctional Facility PO Box 51 Comstock, NY 12821-0051

ROBERT N. ISSEKS, ESQ. Attorney for Plaintiff Class 6 North Street Middletown, NY 10940

HON. ANDREW M. CUOMO Attorney General of the
State of New York Attorney for Defendants Department of Law The Capitol Albany, New York 12224

DOUGLAS J. GOGLIA, ESQ. Asst. Attorney General

DAVID N. HURD United States District Judge

O R D E R On February 15, 2005, plaintiff’s motion for class certification was granted. (Docket No. 127). On February 1, 2008, a hearing by video-teleconference was held, at which time the attorneys for the Plaintiff Class and the defendants advised that an agreement-inprinciple had been reached with respect to the settlement of this Class Action. (Docket No. 177). A proposed Private Settlement Agreement was submitted for approval on March 13, 2008. (Docket No. 184). On March 18, 2008, a hearing by video-teleconference was held with the attorneys for the Plaintiff Class and defendants, during which the issue of notifying potential class-members of the proposed settlement was addressed. (Docket No. 185). A proposed Notice of Class Action Settlement was submitted for consideration, and by Order dated May 13, 2008, was approved; it was directed that it be posted in all correctional facility law libraries, general libraries, inmate housing areas, and all Sex Offender Counseling and Treatment Program areas. (Docket Nos. 192 and 194). The Notice of Class Action Settlement was so posted. Thereafter, numerous objections and comments to the proposed Private Settlement Agreement were submitted by plaintiff David Donhauser and other potential members of the Class. (Docket Entries 190, 195-222, 224-227). The objections and comments were filed under seal and were forwarded to the attorneys for the Plaintiff Class and the defendants, each of whom submitted letters in response. (Docket Nos. 190, 191, 231, 232). All submissions have been read and considered.
- 2 -

On September 23, 2008, a hearing by video-teleconference was held and the attorneys for the Plaintiff Class and the defendants were directed to submit a revised Private Settlement Agreement. (Docket No. 234).
A revised Private Settlement Agreement dated October 3, 2008, (Docket No. 234) was submitted. It has been reviewed in conjunction with all prior pleadings, proceedings, decisions, submissions, etc. in this Class Action.
Based upon the foregoing, a finding is made that the revised Private Settlement Agreement is fair, reasonable, and adequate.
Therefore, pursuant to Fed. R. Civ. P. 23(e), it is ORDERED that 1. The Private Settlement Agreement dated October 3, 2008, is APPROVED; 2. Jurisdiction is retained over any issues that may arise regarding compliance with the Private Settlement Agreement; and otherwise 3. This Class Action is DISMISSED. The Clerk is directed to enter judgment accordingly. IT IS SO ORDERED.
Dated: October 17, 2008 Utica, New York.
- 3 -

 
 • • Case 9:01-cv-01535-DNH-GHL Document 13 Filed 04/23/02 Page 1 of 11
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

DAVID DONHAUSER, Plaintiff,

SECOND AMENDED COMPLAINT

-against-
GLENN S. GOORD, Commissioner, NY DOCS, MARTHA E. YOURTH, CSW Guidance Spec., DOMINIC MARTINELLI, Sex Offender Pb\~gram Counselor; and S. CARTER, S.C.C. On~ida Correctional Facility,
Defendants.

Case. No.: 9:0l-CV-1535 (DNH) (GLS)
JURY

PRELIMINARY STATEMENT

:"':;;8 ~ ~ ~\. J \ ......

," .. :,;" ::"" ...

This is a civil rights action filed by David ~~~~~~-a~~~~

prisoner, for damages and injunctive relief under 42 U.S.C. §1983,

alleging that the sex offenders programs are in violation of his fifth

Amendment right against self-incrimination as well as claims involving

denial of due process, equal protection and right to privacy in

violation of his fourth Amendment to the Constitution. The plaintiff

also alleges the punitive actions of defendants taking good-time and

other punitive actions such as new criminal charges.

JURISDICTION

1. The Court has jurisdiction over the plaintiffs' claims of violation of federal constitutional rights under 28 U.S.C. §133l, §1343, and §220l.
2. The Court has supplemantal jurisdiction over the plaintiff's state law claims under 28 U.S.C. §1367.

•

• Case 9:01-cv-01535-DNH-GHL Document 13 Filed 04/23/02 Page 2 of 11

PARTIES

3. The plaintiff, David Donhauser, was and is presently incarcerated at Oneida Correctional Facility during the events described in this complaint.

4. Defendant Glenn S. Goord is commissioner of NYS Department of Correctional Services. He is sued in his individual and official capacity.
5. Defendant Martha E. Yourth is a CSW Guidance Specialist in charge of Administrative decisions of the sex offenders programs. She is sued in her individual and official capacity.
6. Defendant Dominic Martinelli is the corrections counselor of the sex offenders program at Oneida Correctional Facility. He is sued in his individual and official capacity.
7. Defendant Sue Carter is a Senior corrections counselor of all programs and recommedations for individual recommended to the sex offender program. She is sued in her individual and official capacity.
8. All the defendants have acted, and continue to act, under color of state law at all times relevant to this complaint.

FACTS
9. On April 20, 2000, plaintiff was referred by his counselor to the sex offenders program at Oneida Correctional Facility. Plaintiff declined the program and stated that he is not guilty of any sex offense and did in fact plea under a special plea called Alford v.
2

Case 9:01-cv-01535-DNH-GHL Document 13 Filed 04/23/02 Page 3 of 11
10. On April 20, 2000, his counselor advised plaintiff in writing that his refusal will result in loss of good time. Again plaintiff delined and explained that his participation could and would result in new criminal charges because he would be forced to admit to uncharged acts of sexual abuse with the alleged victim.
11. On October 24, 2000, the plaintiff wrote a letter to SOP Counselor Dominic Martinelli. In his letter he explained that he only excepted to plead guilty to the charged sex offense because of his prior criminal history and that he would most likely be found guilty. He further stated that he did not committ any sexual offense.
12.0n November 9, 2000, the plaintiff received a letter from Martha Yourth, CSW Guidance Specialist. She stated that his failure to participate in the sex offenders program will result in negative impact on his earning good time.
13. On February 14, 2001, the plaintiff wrote to Sue Carter, senior corrections counselor regarding the program. He stated that he would participate in the program if he could maintain his innocence during the program, and take his Fifth Amendment right to selfincrimination. Further plaintiff stated that he did not want to write out a personal history about his family. Plaintiff stated that my family in not in prison why should I give personal information about my family lives.
14. On March 20, 2001, plaintiff wrote a letter to Anthony Annucci, counsel for NYS DOCS, regarding having to participate in the sex offenders program. Attorney Annucci informed plaintiff that he must participate in the SOP or lose his good time and other privileges.
3

Case 9:01-cv-01535-DNH-GHL Document 13 Filed 04/23/02 Page 4 of 11
15. On Jamuary 23, 2002, Plaintiff appeared before the NYS Board of Parole and was denied parole because he refused the sex offenders program.
16. Plaintiff now awaits the decision of the time allowance committee that will find that he refused the sex offenders program and for that fact take his good time. He still awaits the decision of Martinelli as to issueing a Misbehavior Report.
17. Plaintiff asserts that the sex offenders program will cause him further incarceration because the programs counselor takes the written reports and history that the plaintiff provides in the program and turn that information over to the Police and District Attorney's for further criminal prosecutions.
18. The sex offenders program requires each participant to provide an entire written explaination regarding the victim and a complete sexual history. This information is compared with the present charges against plaintiff to determine if you admitted to other uncharged acts of rape, sexual abuse, sodomy, ect. This information is then given to the authoritys for further criminal charges.
DENIAL OF DUE PROCESS
19. The sex offenders programs do not offer a willing inmate an opportunity to participate in the program and maintain his Fifth Amendment rights to self-incrimination. Each case should be looked at on an individual bases to determine each sentence as to what the sentence was as to plea with admission of the crime, Alford plea or trial and convicted and pending appeal. This program does not offer an alternative choice to one willing to participate an exercise his rights to maintain his innocence.
4

-----~---------------------------
• Case 9:01-cv-01535-DNH-GHL Document 13

•Filed 04/23/02

Page 5 of 11

CAUSE OF ACTION

20. The practices of the defendants violates the constitutional rights of the plaintiff against self-incrimination guaranteed by the Fifth Amendment by subjecting the plaintiff to compulsion through the requirements of submitting a complete sexual history and instant offense details in the clarification.
21. The practices of the defendants violates plaintiff right to privacy guaranteed by the First Amendment through the dissemination of information derived exclusively during participation in the mandatory segments of the SOP wherein information is utilized to the plaintiff detriment.
22. The defendants violate the rights of plaintiff equal protection of the laws guaranteed by the Fourteenth Amendment in that the plaintiff is subject to an automatic, blanket policy discrimination with respect to SOP participation and negative collateral consequences by participating and by refusing without regard to each case circumstances.
RELIEF REQUESTED

WHEREFORE, the plaintiff respectfully prays for an order and judgment against the dfendants as follows:
A. CLASS CERTIFICATION: NONE B. DECLARATORY RELIEF: The plaintiff prays that the court grant declaratory relief wherein the court declares: 1. The automatic requirement that New York State prisoners who were convicted of a sex-related offense pursuant to an Alford plea, convicted of sex related offense after a trial having entered a plea
5

Case 9:01-cv-01535-DNH-GHL Document 13 Filed 04/23/02 Page 6 of 11
of not guilty, or found guilty by an administrative prison disciplinary tribunal of an alleged sex related disciplinary infraction after having entered a plea of not guilty, participate in the SOP subjects the plaintiff to deprivation of state created liberty interest without due process and equal protection.
2. The requirement that the plaintiff admit guilt to the instant offense and provide a detailed sexual history and description of the instant offense violates the Fifth Amendment prohibitions against compulsory self-incrimination.
3. The requirements that the plaintiff provide detailed sexual history and instant offense information which is the freely disseminated by the defendants to the detriment of the plaintiff and class violates the First Amendment guarantees the right to Privacy where polices are not reasonably related to a compelling legitimate penological state interest.
4. The automatic blanket policy application of the requirement that the plaintiff be subject to participation in the SOP or suffer negative consequences as a result of non-participation, without an individual case determination, subjects the plaintiff to discriminatory treatment in violation of the Fourteenth Amendment.
5. The practices of discharging participates from the SOP without affording due process protections, based upon the automatic application of negative collateral consequences for refusing to participate or for being discharged violates the Fourteenth Amendment Due Process and Equal Protection of the plaintiff.

Case 9:01-cv-01535-DNH-GHL Document 13 Filed 04/23/02 Page 7 of 11
INJUNCTIVE RELIEF
The plaintiff prays that the Court grant preliminary and permanent injunctive relief wherein the defendants are:
A. Enjoined from taking any action(s) in retailiation or in retribution against plaintiff for having filed and commenced the instant action, or from taking any action in an attempt to, or which would serve to, render the instant action moot, including, but not limited to; transferring plaintiff to another facility; or harassing him through the use of unwarranted serches and frisks of his person or property, or throught the use of the inmate disciplinary process; or withholding plaintiff's good time for failure to participate in the sex offenders program; or, any other actions of a similar nature aimed at, or with the intentions of punishing plaintiff forhaving commenced the instant action or at preventing litigation on the instant action from proceeding.
B. Enjoined from continuing the current practice of requiring a detailed written account of an SOP participant's personal sexual history, biography, and description of the instant offense, where said participant is a recognized member. of the class.
C. Enjoined from dissiminating any information currently in existence which has been obtained from any document or information derived exclusively through SOP participation to inmate program facilitators, to corrections officers, to the Board of sex offender Examiners, to any District Attorney or other prosecutor, to any Court for any purpose other than the instant action, or to any person, agency or entity not specifically identified herein.
7

Case 9:01-cv-01535-DNH-GHL Document 13 Filed 04/23/02 Page 8 of 11
D. Enjoined from utilizing any information obtained through participation in the SOP for any reason other than rehabilitative treatment, including, but not limited to, seeking an increased risk level determination; seeking criminal prosecution for uncharged or criminal actions of any member of the class or participant of the SOP which have come to light through said participation, seeking to withhold good time credits based upon said information, seeking to prevent release on parole, conditional release or maximum exper~ti~ndate based upon in use of said information; or, of any other used information which is intended to negatively affect or impact any member of the class or any participant of the SOP ln his reputation, ability to function in and out of society as a normal participant, eligibility to participate in or obtain programs, services, privileges, ect"
E. From taking any other actions against the plaintiff which the Court deems to be inappropriate, unwarranted, arbitrary, injurious, until such time as a final disposition on the merits in this action has been reached.
DAMAGE RELIEF
The plaintiff prays that the Court grant damage relief to plaintiff as follows:
1. Compensatory damages against all named defendants, individually and collectively, in the amount of one million, five hundred thousand dollars ( $1,500,000 ) to compensate plaintiff for the injuries caused through the violation of his rights and state-created liberty interest, defamations of character, and other similar injuries as a consequence thereof.
8

Case 9:01-cv-01535-DNH-GHL Document 13 Filed 04/23/02 Page 9 of 11
2. Punitive damages against all named defendants, individually and collectively, in the amount of five million dollars ($5,000,000) to serve as a penalty for their actions and as a deterrent to others from taking actions of a similiar in the future.
COURT COSTS AND ATTORNEY FEES The plaintiff prays that the Court order the named defendants, individually and collectively, to award to plaintiff and plaintiff class, compensation for all court costs, fees, expenses and any attorney fees which might arise as a result of this action.
OTHER RELIEF The plaintiff prays that the Court will grant such other and further relief as the Court deems to be just, proper, and appropriate.
EXECUTED THIS DATE: April 19, 2002. Respectfully submitted,
C (~)la(jj~ ---·--DciVid Donhauser DIN # 99-B-1868 Oneida Correctional Facility 6100 School Road Post Office~Box 4580 Rome, New York 13442-4580
9

'.

Case 9:01-cv-01535-DNH-GHL Document 13 Filed 04/23/02 Page 10 of 11

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
DAVID DONHAUSER, Plaintiff,

VERIFICATION OF SECOND AMENDED COMPLAINT

-against-
GLENN S. GOORD,Commissioner, NY DOCS, MARTHA E. YOURTH, CSW Guidance Spec., DOMINIC MARTINELLI, Sex Offender Program Counselor~ and Sue Carter, S.C.C. Oneida Correctional Facility,
Defendants.

Case No.: 9:01-CV-1535 (DNH) (GLS)
JURY TRIAL DEMANDED

STATE OF NEW YORK) ) Affirmation: Verification of Second Amended Complaint
COUNTY OF ONEIDA )

I, DAVID DONHAUSER, hereby affirm under penalties of perjury, pursuant to 28 U.S.C. § 1746, that:
1. I am above age of 18 years and I am currently a prisoner of New York State.
2. I have read the foregoing Second Amended Complaint in its entirety and I declare that the statements contained therein are true and correct to the best of my knowledge and belief, except as to those matters therein alleged to be upon information and belief and as to those matters I believe them to be true.

EXECUTED THIS DATE: APRIL 19, 2002 Rome, New York
('

:J~)l~
David Donhauser, Plaintiff DIN # 99 B 1868 Oneida Correctional Facility 6100 School Road P. O. Box 4580 Rome, New York 13442-4580

••

• Case 9:01-cv-01535-DNH-GHL Document 13 Filed 04/23/02 Page 11 of 11

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

DAVID DONHAUSER, Plaintiff,

AFFIRMATION OF SERVICE

-against-
GLENN S. GOORD, Commissioner, NY DOCS; MARTHA E, YOURTH, CSW Guidance Special; DOMINIC MARTINELLI, Sex Offender Program Counselor; and SUE CARTER, S.C.C., Oneida Correctional Facility,
Defendants.

Case No.: 9:01-CV-1535 (DNH) (GLS)

STATE OF NEW YORK COUNTY OF ONEIDA

Affirmation of Service:

DAVID DONHAUSER, hereby declares the following under panalty of
perjury, pursuant to 28 U.S.C. §1746:
I am the Plaintiff in the above-entitled action, I am a New York
State Prisoner, and I am currently incarcerated in Oneida Correctional
Facility, 6100 School Road, Rome, New York 13442-4580.
On the 19 day of April, 2002, I placed in a properly addressed,
post paid wrapper, and placed into the care and custody of prison
officials at Oneida Correctional Facility, a true and exact copy of:
Verified Second Amended Complaint and,Verification thereof, and
Affirmation of Service to be hand delivered by the U.S. Post Office,
via First Class Mail, to the following parties: Clerk of the Court
United States District Court Northern District of New York
100 South Clinton Street Syracuse, New York 13261-7367 I hereby declare under the panalties of perjury that the foregoing is true and correct to the best of my knowledge and belief.
EXECUTED THIS DATE: April /9 , 2002
C_RLeSJI<ewcr,t~-y+1Y( a1Ub.lmJ' tt;ed_, ~ . David Donhauser DIN # 99-B-1868 Oneida Correctional Facility Rome, New York 13442-4580

 
 Case 9:01-cv-01535-DNH-GHL Document 257 Filed 10/27/09 Page 1 of 2

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

DAVID DONHAUSER, vs

Plaintiff,

9:01-CV-1535

GLENN S. GOORD, Commissioner, NY DOCS; MARTHA E. YOURTH, CSW Guidance Specialist; DOMINIC MARTINELLI, Sex Offender Program Counselor; and S. CARTER, S.C.C., Oneida Corr. Facility,
Defendants.

CLASS ACTION

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

APPEARANCES:

OF COUNSEL:

ANIBAL ORTIZ, JR. Plaintiff, Pro Se (Class Member) Mohawk Correctional Facility 6100 School Road PO Box 8451 Rome, NY 13442-8451

DAVID DONHAUSER Plaintiff, Pro Se 05-B-3138 Great Meadow Correctional Facility PO Box 51 Comstock, NY 12821-0051

ROBERT N. ISSEKS, ESQ. Attorney for Plaintiff Class 6 North Street Middletown, NY 10940

HON. ANDREW M. CUOMO Attorney General of the
State of New York Attorney for Defendants Department of Law The Capitol Albany, New York 12224

DOUGLAS J. GOGLIA, ESQ. MEGAN M. BROWN, ESQ. Assts. Attorney General

Case 9:01-cv-01535-DNH-GHL Document 257 Filed 10/27/09 Page 2 of 2

DAVID N. HURD United States District Judge

O R D E R

Class member Anibal Ortiz, Jr., has requested (Docket No. 250) that the above

matter be reopened because the defendants have violated the order of April 23, 2004

(Docket No. 85). Because that order was vacated by the Second Circuit, the request will be

considered pursuant to the Settlement Agreement of October 17, 2008 (Docket No. 235).

Even accepting the class member’s allegations as true, the request is premature because the

notice requirement of the Settlement Agreement has not been met.

Therefore, it is

ORDERED that the request is DENIED without prejudice.

IT IS SO ORDERED.

Dated: October 26, 20098 Utica, New York.

- 2 -

 
 This case was not selected for publication in the Federal Reporter.
United States Court of Appeals, Second Circuit. David DONHAUSER, Plaintiff-Appellee, v.
Glenn S. GOORD, Commissioner, New York State Department of Correctional Services, Martha E. Yourth, CSW Guidance Specialist, Dominic Martinelli, Sex Offender Program Counselor, S. Carter, S.C.C., Oneida Correctional Facility, Defendants-Appellants. Nos. 04-2222pr, 04-2490pr.
March 22, 2006.
Background: Prisoner brought suit against state prison officials and employees alleging that denial of good time credits for refusal to provide sexual history required for participation in sexual offender treatment program violated his Fifth Amendment right against self-incrimination. The United States District Court for the Northern District of New York, Hurd, J., issued preliminary relief enjoining officials from denying good time credits based on refusal to provide sexual history. Defendants appealed.
Holding: The Court of Appeals held that vacatur of and remand of case for further findings in support of preliminary injunction was appropriate, given lack of clarity. Order vacated and case remanded.
*11 Robert Isseks (Alex Smith, on the brief), Middletown, NY, for Plaintiff-Appellee. Andrea Oser, Assistant Solicitor General, (Caitlin J. Halligan, Solicitor General, and Nancy A Spiegel, Senior Assistant Solicitor General, on the brief), for Eliot Spitzer, Attorney General of the State of New York, Albany, NY, for Defendants-Appellants.
Present: Hon. THOMAS J. MESKILL, Hon. ROSEMARY S. POOLER and Hon. PETER W. HALL, Circuit Judges.
SUMMARY ORDER
**1 Appeal from the United States District Court for the Northern District of New York (Hurd, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the April 23, 2004 order of the District Court is VACATED and the case is REMANDED for further proceedings.
*12 The New York State Department of Correctional Services (“DOCS”) operates a clinical rehabilitation program for sexual offenders-the Sexual Offenders Counseling Program (“SOCP”)-that for treatment purposes requires participants to provide a sexual history, including acts or conduct for which the participant has not been charged. In October 2001, David Donhauser, a sex offender then incarcerated in the Oneida Correctional Facility, brought this § 1983 action alleging, inter alia, that various DOCS officials violated his Fifth Amendment right against self-incrimination by threatening him with the automatic denial of good time credits for refusing to participate in SOCP. On April 23, 2004, the District Court issued a system-wide preliminary injunction enjoining Defendants from denying a prisoner good time credits based on a refusal to provide his sexual history so as to be eligible for SOCP. In June 2004, this Court stayed the preliminary injunction pending Defendants' appeal of the District Court's order. We assume the parties familiarity with the facts and the record of the prior proceedings, which we reference only as necessary to explain our decision.
A preliminary injunction enjoining government actions taken in the public interest pursuant to a statutory scheme is warranted where the movant demonstrates (1) irreparable harm absent the injunction and (2) a likelihood of success on the merits. See Bronx Household of Faith v. Bd. of Educ., 331 F.3d 342, 348-49 (2d Cir.2003). We review a district court's grant of a preliminary injunction for an abuse of discretion, see Sunward Elecs., Inc. v. McDonald, 362 F.3d 17, 24 (2d Cir.2004), finding such where the “district court applies legal standards incorrectly or relies upon clearly erroneous findings of fact.” Corning Inc. v. PicVue Elecs., Ltd., 365 F.3d 156, 157 (2d Cir.2004) (internal quotation marks omitted).
“Federal Rule of Civil Procedure 52(a) requires that a trial court state its findings and conclusions explicitly when granting or denying a preliminary injunction.”
Fair Housing in Huntington Comm. Inc. v. Town of Huntington, 316 F.3d 357, 364 (2d Cir.2003). In

large part because of the lack of clarity in the record before it, the District Court's findings are less than clear with respect to whether the DOCS denies good time credit as an automatic and direct result of a prisoner's refusal to provide the requested sexual history. See Donhauser v. Goord, 314 F.Supp.2d 139, 141 (N.D.N.Y.2004) (stating that Plaintiff's evidence, “if found persuasive, would give rise to a viable claim under the Fifth Amendment” (emphasis added)). While we have held that only “ ‘fair compliance’ with Rule 52(a)'s requirements” is necessary, see Town of Huntington, 316 F.3d at 364, vacatur and remand is appropriate in this instance. As counsel for plaintiff acknowledged at oral argument, and we agree, our review would benefit from further development of the factual record in light of various changes that have occurred since the District Court issued the preliminary injunction almost two years ago. On remand, moreover, the Defendants will have further opportunity to consider whether granting use immunity to prisoners for any information disclosed in the course of the prisoners' participation in SOCP would have the salutary effect of resolving the principal issues in dispute. See McKune v. Lile, 536 U.S. 24, 34, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002); Asherman v. Meachum, 957 F.2d 978, 986-89 (2d Cir.1992) (en banc) (Cardamone J., dissenting).
**2 For the foregoing reasons, the April 23, 2004 order of the District Court is VACATED and the case is REMANDED.
C.A.2 (N.Y.),2006. Donhauser v. Goord 181 Fed.Appx. 11, 2006 WL 1525720 (C.A.2 (N.Y.))
END OF DOCUMENT

 
 Case: 9:01-cv-1535 As of: 09/22/2012 11:26 AM EDT 1 of 21
CLOSED,LEAD
U.S. District Court Northern District of New York − Main Office (Syracuse) [LIVE − Version 5.0.3]
(Prisoner) CIVIL DOCKET FOR CASE #: 9:01−cv−01535−DNH−GHL

Donhauser v. Goord, et al Assigned to: Judge David N. Hurd Referred to: Magistrate Judge George H. Lowe Demand: $1,500,000 Case in other court: 2nd Circuit, 04−02222
2nd Circuit, 04−02222−pr (LEAD)
NDNY, 9:05−CV−0096 Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 10/10/2001 Date Terminated: 10/17/2008 Jury Demand: Both Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

David Donhauser

represented by David Donhauser 05−B−3138 Franklin Correctional Facility PO Box 10 Malone, NY 12953 PRO SE

Robert N. Isseks Office of Robert N. Isseks 6 North Street Middletown, NY 10940 845−344−4322 Fax: 845−341−1760 Email: isseks@frontiernet.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Consol Plaintiff Joseph Garcia

represented by Joseph Garcia 88−T−1469 Mohawk Correctional Facility P.O. Box 8451 Rome, NY 13440 PRO SE

V. Petitioner Ricardo Lamberty

represented by Ricardo Lamberty 86−A−7921 Cape Vincent Correctional Facility Route 12E PO Box 739 Cape Vincent, NY 13618 PRO SE

V.
Defendant
Glenn S. Goord Commissioner, NY DOCS

represented by Douglas J. Goglia New York State Attorney General − Albany Office

Case: 9:01-cv-1535 As of: 09/22/2012 11:26 AM EDT 2 of 21

The Capitol Albany, NY 12224 518−474−6800 Fax: 518−473−1572 Email: douglas.goglia@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Megan M. Brown New York State Attorney General − Albany Office The Capitol Albany, NY 12224 518−474−5288 Fax: 518−402−2221 Email: megan.brown@ag.ny.gov TERMINATED: 04/25/2008 LEAD ATTORNEY

Nelson Sheingold New York State Office of the State Comptroller 110 State Street 14th Floor Albany, NY 12236 518−474−0588 Email: nsheingold@osc.state.ny.us TERMINATED: 08/31/2007 LEAD ATTORNEY

Defendant
Martha E. Yourth CSW Guidance Specialist

represented by Douglas J. Goglia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Megan M. Brown (See above for address) TERMINATED: 04/25/2008 LEAD ATTORNEY

Nelson Sheingold (See above for address) TERMINATED: 08/31/2007 LEAD ATTORNEY

Defendant
Dominic Martinelli Sex Offender Program Counselor

represented by Douglas J. Goglia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Megan M. Brown (See above for address) TERMINATED: 04/25/2008 LEAD ATTORNEY

Nelson Sheingold (See above for address) TERMINATED: 08/31/2007 LEAD ATTORNEY

Defendant

Case: 9:01-cv-1535 As of: 09/22/2012 11:26 AM EDT 3 of 21

S. Carter S.C.C., Oneida Corr. Facility

represented by Megan M. Brown (See above for address) TERMINATED: 04/25/2008 LEAD ATTORNEY

Nelson Sheingold (See above for address) TERMINATED: 08/31/2007 LEAD ATTORNEY

Douglas J. Goglia (See above for address) ATTORNEY TO BE NOTICED

V.
Consol Defendant
Michael Maher Acting Superintendent

represented by Douglas J. Goglia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maria Moran Office of Attorney General − Syracuse Office 615 Erie Boulevard West Suite 102 Syracuse, NY 13204−2455 315−448−4800 Fax: 315−448−4853 Email: Maria.Moran@oag.state.ny.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Megan M. Brown (See above for address) TERMINATED: 04/25/2008 LEAD ATTORNEY
Nelson Sheingold (See above for address) TERMINATED: 08/31/2007 LEAD ATTORNEY

V.
Respondent
Sunny Schriver Supt. of Wallkill Corr. Fac.

represented by Douglas J. Goglia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gerald J. Rock Albany Law School 80 New Scotland Avenue Albany, NY 12208 518−445−3393 Fax: 518−445−3323 Email: grock@albanylaw.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 9:01-cv-1535 As of: 09/22/2012 11:26 AM EDT 4 of 21
Megan M. Brown (See above for address) TERMINATED: 04/25/2008 LEAD ATTORNEY

Date Filed 10/10/2001 10/10/2001 10/10/2001 10/10/2001 10/10/2001 10/23/2001
10/24/2001
10/26/2001
10/30/2001
11/01/2001
11/02/2001 11/02/2001 11/28/2001 12/04/2001 01/18/2002

# Docket Text
1 COMPLAINT filed; (fce) Additional attachment(s) added on 7/21/2005 (see, ). (Entered: 10/10/2001)
2 In Forma Pauperis Application filed by David Donhauser (fce) Additional attachment(s) added on 7/21/2005 (see, ). (Entered: 10/10/2001)
3 Executed Inmate Authorization Form for In Forma Pauperis (Incremental filing fee payments) for − David Donhauser (fce) Additional attachment(s) added on 7/21/2005 (see, ). (Entered: 10/10/2001)
4 MOTION by David Donhauser for Temporary Restraining Order Motion returnable before Judge/Mag. Judge: Sharpe (fce) Additional attachment(s) added on 7/21/2005 (see, ). (Entered: 10/10/2001)
Motion(s) referred: [4−1] motion for Temporary Restraining Order referred to Magistrate Judge Gary L. Sharpe (fce) (Entered: 10/10/2001)
5 DOCUMENT REJECTION ORDER as to Mauern Ashford El; request to be added as a plaintiff to the action must be in a form of a motion. ( signed by Magistrate Judge Gustave J. DiBianco ) Date Entered: 10/23/01 (fce) Additional attachment(s) added on 7/21/2005 (see, ). (Entered: 10/23/2001)
6 DOCUMENT REJECTION ORDER as to Richard Schwartz and Roy C. Holmes; a motion must be filed before additional parties can be added as plaintiffs in this action. ( signed by Magistrate Judge Gustave J. DiBianco ) Date Entered: 10/24/01 (fce) Additional attachment(s) added on 7/21/2005 (see, ). (Entered: 10/24/2001)
7 DOCUMENT REJECTION ORDER as to Joseph Hutzler; request to be added as a plaintiff in this action must be done by motin. ( signed by Magistrate Judge Gustave J. DiBianco ) Date Entered: 10/26/01 (fce) Additional attachment(s) added on 7/21/2005 (see, ). (Entered: 10/26/2001)
8 ORDER rejecting the request of Leon Gant, Sr. to be added as a plaintiff in this action, for not being in the form of a motion. ( signed by Magistrate Judge Gustave J. DiBianco ) Date Entered: 10/31/01 (rjb) Additional attachment(s) added on 7/21/2005 (see, ). (Entered: 10/31/2001)
9 Order Directing Compliance as to David Donhauser. Plaintiff ordered to file an amended complaint within 30 days of the date of this order or the action shall be dismissed without further order of the court. Plaintiff's IFP application is granted and clerk directed to provide supt. of the facility with copy of the Inmate Authorization form. If plaintiff complies with this order, the file shall be forwarded to the undersigned for further review. Date Served: 11/1/01 Date Entered: 11/02/01 Notice of compliance due by 12/1/01 Clerk's action due by 12/31/01 ( Signed by Judge David N. Hurd ) (fce) (Entered: 11/02/2001)
9 ORDER denying [4−1] motion for Temporary Restraining Order, granting [2−1] application ( signed by Judge David N. Hurd ) (fce) (Entered: 11/02/2001)
Forwarded Inmate Authorization form to Supt. (fce) (Entered: 11/02/2001)
PRO SE HANDBOOK issued to David Donhauser by mail. (tjm) (Entered: 11/28/2001)
10 ***STRICKEN FROM THE RECORD BY ORDER OF JUDGE HURD FILED 3/22/02*** AMENDED COMPLAINT by David Donhauser, amends [1−1] complaint (fce) Modified on 03/22/2002 (Entered: 12/04/2001)
11 DOCUMENT REJECTION ORDER as to Ashford−El; request by Ashford−El to be added as a party to this action must be in the form of a motion. ( signed by Magistrate Judge Gustave J. DiBianco ) Date Entered: 1/18/02 (fce) Additional

Case: 9:01-cv-1535 As of: 09/22/2012 11:26 AM EDT 5 of 21

03/22/2002
03/22/2002 04/23/2002 05/06/2002 05/06/2002 05/15/2002 05/22/2002 05/31/2002 06/10/2002 06/10/2002 06/10/2002 06/12/2002 07/01/2002 07/01/2002
07/03/2002 07/18/2002

attachment(s) added on 7/21/2005 (see, ). (Entered: 01/18/2002)
12 Order Directing Compliance as to David Donhauser. Donhauser is directed to file an amended complaint w/in 30 days or this action is dismissed. Plaintiff is directed not to file any other motions until his amended complaint has been submitted and approved for filing. Date Served: 3/22/02 Date Entered: 3/22/02 Notice of compliance due by 4/21/02 Clerk's action due by 5/21/02 ( Signed by Judge David N. Hurd ) (rjb) (Entered: 03/22/2002)
12 ORDER, Striking [10−1] amended complaint ( signed by Judge David N. Hurd ) Date Entered: 3/22/02 (rjb) (Entered: 03/22/2002)
13 AMENDED COMPLAINT by David Donhauser, amends [1−1] complaint (fce) Additional attachment(s) added on 7/21/2005 (see, ). (Entered: 04/23/2002)
14 ORDER directing the Clerk to issue summons and forward w/copies of the amended complaint to the U.S. Marshals for service. ( signed by Magistrate Judge Gary L. Sharpe ) Date Entered: 5/6/02 (fce) (Entered: 05/06/2002)
15 NOTICE of the Clerk to Donhauser dd. 5/6/02 advising plaintiff to submit 5 copies of his amended complaint to the Clerk's Office for service upon the defts. (fce) Additional attachment(s) added on 7/21/2005 (see, ). (Entered: 05/06/2002)
SUMMONS(ES) issued for Glenn S. Goord, Martha E. Yourth, Dominic Martinelli, S. Carter (fce) (Entered: 05/15/2002)
16 DOCUMENT REJECTION ORDER as to Donhauser; motion to "certify action as class action" did not have an affidavit or memorandum of law. ( signed by Magistrate Judge Gustave J. DiBianco ) Date Entered: 5/22/02 (fce) Additional attachment(s) added on 7/21/2005 (see, ). (Entered: 05/22/2002)
17 ACKNOWLEDGEMENT OF SERVICE as to Glenn S. Goord on 5/29/02 : Answer due on 6/18/02 for Glenn S. Goord (nas) Additional attachment(s) added on 7/21/2005 (see, ). (Entered: 05/31/2002)
18 Marshal's Bill of costs as to Donhauser for $24.00. (fce) Additional attachment(s) added on 7/21/2005 (see, ). (Entered: 06/10/2002)
19 ACKNOWLEDGEMENT OF SERVICE as to Martha E. Yourth on 6/4/02 : Answer due on 6/24/02 for Martha E. Yourth (fce) Additional attachment(s) added on 7/21/2005 (see, ). (Entered: 06/10/2002)
20 ACKNOWLEDGEMENT OF SERVICE as to Dominic Martinelli on 5/29/02 : Answer due on 6/18/02 for Dominic Martinelli (fce) Additional attachment(s) added on 7/21/2005 (see, ). (Entered: 06/10/2002)
21 REQUEST by AAG Sheingold and ORDER, extending Answer deadline to 7/29/02 for Dominic Martinelli, for Martha E. Yourth, for Glenn S. Goord ( signed by Magistrate Judge Gary L. Sharpe ) (rjb) Additional attachment(s) added on 7/21/2005 (see, ). (Entered: 06/12/2002)
22 MOTION, w/attached exhibits, by David Donhauser for Appointment of Counsel Motion returnable before Judge/Mag. Judge: Sharpe (fce) Additional attachment(s) added on 7/21/2005 (see, ). (Entered: 07/01/2002)
23 MOTION w/attached affidavit and memorandum of law by David Donhauser to certify action as class action , Hearing set for 7/29/02, Response Deadline 7/15/02 Motion returnable before Judge/Mag. Judge: Sharpe **Motion STAYED as per [27−1] request and order, pending resolution of dft's motion to dismiss.*** (fce) Modified on 03/12/2003 Additional attachment(s) added on 2/14/2005 (nas, ). (Entered: 07/01/2002)
24 DOCUMENT REJECTION ORDER as to Donhauser; motion for preliminary injunction did not have an affidavit or memorandum of law. ( signed by Magistrate Judge Gary L. Sharpe ) Date Entered: 7/3/02 (fce) Additional attachment(s) added on 7/21/2005 (see, ). (Entered: 07/03/2002)
25 MOTION by Glenn S. Goord, Martha E. Yourth, Dominic Martinelli, S. Carter to Dismiss the complaint , Hearing set for 8/15/02 , Response Deadline 8/1/02 Motion

Case: 9:01-cv-1535 As of: 09/22/2012 11:26 AM EDT 6 of 21

07/18/2002 07/22/2002
07/25/2002
07/26/2002 07/26/2002 07/31/2002 07/31/2002 08/12/2002 08/12/2002 08/14/2002 08/15/2002 08/15/2002 08/16/2002 08/19/2002

returnable before Judge/Mag. Judge: Sharpe (fce) Additional attachment(s) added on 9/1/2004 (cbm, ). (Entered: 07/18/2002)
26 MEMORANDUM w/attached exhibits by Glenn S. Goord, Martha E. Yourth, Dominic Martinelli, S. Carter in support of [25−1] motion to Dismiss the complaint (fce) Additional attachment(s) added on 7/21/2005 (see, ). (Entered: 07/18/2002)
27 REQUEST by Atty. Sheingold for a stay on plt'f motion for class certification and ORDER plaintiff's motion for class certification is STAYED pending resolution of dft's motion to dismiss. (signed by CDB as directed by Magistrate Judge Gustave J. DiBianco) (fce) Additional attachment(s) added on 7/21/2005 (see, ). (Entered: 07/22/2002)
28 REQUEST by Donhauser and ORDER DENYING said request because the Court cannot determine what deadline is being sought to extend or what papers Donhauser wishes to reply to. Request is denied as being unclear. ( signed by C. Brown as directed by Magistrate Judge Gary L. Sharpe ) (nas) Additional attachment(s) added on 7/21/2005 (see, ). (Entered: 07/25/2002)
29 MOTION w/attached affidavit and memorandum of law by David Donhauser for Preliminary Injunction , Hearing set for <date not set> , Response Deadline <date not set> Motion returnable before Judge/Mag. Judge: Sharpe (fce) Additional attachment(s) added on 7/21/2005 (see, ). (Entered: 07/26/2002)
30 Scheduling Notice:, Motion Hearing set for 8/26/02 re: [29−1] motion for Preliminary Injunction , Response to Motion reset to 8/12/02 for [29−1] motion for Preliminary Injunction (fce) Additional attachment(s) added on 7/21/2005 (see, ). (Entered: 07/26/2002)
31 REQUEST by Donhauser and ORDER, Response to Motion reset to 8/29/02 for [25−1] motion to Dismiss the complaint ( signed by A. Maloney as directed by Magistrate Judge Gary L. Sharpe ) (nas) Additional attachment(s) added on 7/21/2005 (see, ). (Entered: 07/31/2002)
32 ORDER rejecting Donhauser's "Request for Production of Documents Under Discovery" as discovery is not filed with the Court. ( signed by Magistrate Judge Gustave J. DiBianco ) Date Entered: 7/31/02 (rjb) (Entered: 07/31/2002)
33 AFFIRMATION/RESPONSE by Defendants to plaintiff's [29−1] motion for Preliminary Injunction (fce) Additional attachment(s) added on 7/21/2005 (see, ). (Entered: 08/13/2002)
34 MEMORANDUM by defendants in support of [33−1] motion response (fce) Additional attachment(s) added on 7/21/2005 (see, ). (Entered: 08/13/2002)
35 ORDER denying [22−1] motion for Appointment of Counsel w/out prejudice. ( signed by Magistrate Judge Gustave J. DiBianco ) Date Entered: 8/14/02 (fce) (Entered: 08/14/2002)
36 MOTION w/attached affirmation by defendants For a protective Order and to Stay discovery Hearing set for <date not set> , Response Deadline <date not set> Motion returnable before Judge/Mag. Judge: Sharpe (fce) Additional attachment(s) added on 7/22/2005 (see, ). (Entered: 08/16/2002)
37 MEMORANDUM by defendants in support of [36−1] motion For a protective Order and to Stay discovery (fce) Additional attachment(s) added on 7/22/2005 (see, ). (Entered: 08/16/2002)
38 Scheduling Notice:, Motion Hearing set for 9/13/02 re: [36−1] motion For a protective Order and to Stay discovery , Response to Motion reset to 8/30/02 for [29−1] motion for Preliminary Injunction (fce) Additional attachment(s) added on 7/22/2005 (see, ). (Entered: 08/16/2002)
39 ACKNOWLEDGEMENT OF SERVICE as to S. Carter on 8/7/02 : Answer due on 8/27/02 for S. Carter (rjb) Additional attachment(s) added on 7/22/2005 (see, ). (Entered: 08/19/2002)

Case: 9:01-cv-1535 As of: 09/22/2012 11:26 AM EDT 7 of 21

08/19/2002 08/22/2002 08/26/2002 08/26/2002 10/01/2002 10/01/2002 10/03/2002
10/06/2002 01/08/2003 01/14/2003 01/22/2003
01/22/2003 01/31/2003 03/03/2003 03/04/2003
05/29/2003

40 Bill of costs submitted by the U.S. Marshals Service, to recover costs of service in the amount of $32.00 (should the pltf prevail). (rjb) Additional attachment(s) added on 7/22/2005 (see, ). (Entered: 08/19/2002)
Sent Donhauser a copy of docket sheet as per his 8/18/02 request. Plaintiff submitted a check for $2.00 for the cost of the docket sheet. Receipt no. 65574. (fce) (Entered: 08/22/2002)
41 REQUEST by Donhauser and ORDER GRANTING, Response to Motion reset to 9/30/02 for [25−1] motion to Dismiss the complaint ( signed by C. Brown as directed by Magistrate Judge Gary L. Sharpe ) (nas) Additional attachment(s) added on 7/22/2005 (see, ). (Entered: 08/26/2002)
42 REQUEST by Nelson Sheingold, AAG, and ORDER denying request for stay of the motion for injunctive relief ( signed by C. Brown as directed by Magistrate Judge Gary L. Sharpe ) (nas) Additional attachment(s) added on 7/22/2005 (see, ). (Entered: 08/26/2002)
43 RESPONSE by David Donhauser to [25−1] motion to Dismiss the complaint (rjb) Additional attachment(s) added on 7/22/2005 (see, ). (Entered: 10/02/2002)
44 MEMORANDUM by David Donhauser in opposition to [25−1] motion to Dismiss the complaint (rjb) Additional attachment(s) added on 7/22/2005 (see, ). (Entered: 10/02/2002)
45 ORDER granting [36−1] motion For a protective Order and to Stay discovery, denying [29−1] motion for Preliminary Injunction and Ordered, ikf motion to dismiss is denied, clerk shall forward file to the Court for setting of pretrial deadlines ( signed by Judge David N. Hurd ) Date Entered: 10/3/02 (fce) (Entered: 10/03/2002)
Motion(s) referred: [25−1] motion to Dismiss the complaint referred to Magistrate Judge Gary L. Sharpe (rjb) (Entered: 10/06/2002)
46 DOCUMENT REJECTION ORDER as to Donhauser; ntc. of address change not served upon opposition. **address updated in system** (signed by Magistrate Judge Gustave J. DiBianco) Date Entered: 1/8/03 (fce) Additional attachment(s) added on 7/22/2005 (see, ). (Entered: 01/08/2003)
47 Change of Address received. Effective date: 1/12/03 from/for plaintiff David Donhauser New Address: Mid−State Corr. Facility (fce) Additional attachment(s) added on 7/22/2005 (see, ). (Entered: 01/14/2003)
48 REPORT AND RECOMMENDATIONS of Magistrate Judge Gary L. Sharpe; it is RECOMMENDED that dft's motion to dismiss be GRANTED. Service Date: 1/22/03 Re: (Objection to R and R due by 2/11/03 for S. Carter, for Dominic Martinelli, for parties (signed by Magistrate Judge Sharpe 1/22/03) Motion(s) no longer referred (fce) (Entered: 01/22/2003)
Motion(s) no longer referred: [25−1] motion to Dismiss the complaint (fce) (Entered: 01/22/2003)
49 REQUEST by Donhauser for an extension of time to file objections to the R/R and ORDER, Objections reset to 2/28/03 for [48−1] report and recommendations (signed by cdb as directed by Judge David N. Hurd) (fce) Additional attachment(s) added on 7/22/2005 (see, ). (Entered: 01/31/2003)
50 OBJECTION by David Donhauser to [48−1] report and recommendations (fce) Additional attachment(s) added on 7/22/2005 (see, ). (Entered: 03/03/2003)
51 REQUEST by Donhauser for an extension of time to file his objections to the R/R and ORDER, Objections reset to 3/10/03 for [48−1] report and recommendations ***Objections were filed by Donhauser on 3/3/03*** (signed by Judge David N. Hurd) (fce) Additional attachment(s) added on 7/22/2005 (see, ). (Entered: 03/04/2003)
52 ORDER rejecting Donhauser's motion for preliminary injunction for not having an affidavit in support. ( signed by Magistrate Judge Gary L. Sharpe ) Date Entered: 5/30/03 (rjb) (Entered: 05/30/2003)

Case: 9:01-cv-1535 As of: 09/22/2012 11:26 AM EDT 8 of 21

06/12/2003 06/19/2003 06/19/2003 06/19/2003 06/20/2003
06/25/2003
06/25/2003 06/30/2003 06/30/2003 07/08/2003 07/10/2003 07/10/2003 07/28/2003 07/28/2003 08/01/2003

53 DOCUMENT REJECTION ORDER as to Donhauser; papers not served upon opposition. (signed by Magistrate Judge Gary L. Sharpe) Date Entered: 6/12/03 (fce) Additional attachment(s) added on 7/22/2005 (see, ). (Entered: 06/12/2003)
Motion(s) no longer referred: [25−1] motion to Dismiss the complaint (fce) (Entered: 06/19/2003)
55 Scheduling Notice:, Motion Hearing set for 7/21/03 re: [54−1] motion for Permanent Injunction , Response to Motion reset to 7/7/03 for [54−1] motion for Permanent Injunction (fce) Additional attachment(s) added on 7/22/2005 (see, ). (Entered: 06/19/2003)
54 MOTION w/attached affidavit and memorandum of law by David Donhauser for Permanent Injunction , Hearing set for 6/30/03 , Response Deadline 6/16/03 Motion returnable before Judge/Mag. Judge: Hurd (fce) Additional attachment(s) added on 7/22/2005 (see, ). (Entered: 06/20/2003)
56 AMENDED Scheduling Notice: Motion Hearing set for 6/30/03 re: [54−1] motion for Permanent Injunction , Response to reset to 6/16/03 for [54−1] motion for Permanent Injunction before Judge Hurd in Utica, NY; This motion will be on submit; no oral argument or appearances are necessary. (fce) Additional attachment(s) added on 7/22/2005 (see, ). (Entered: 06/20/2003)
57 REQUEST by Donhauser for permission to file the attached letter as an exhibit to plaintiff's motion for injunctive relief and ORDER; the letter to be filed as an exhibit to plaintiff's motion for injunctive relief. (signed by Magistrate Judge Gary L. Sharpe) (fce) Additional attachment(s) added on 7/22/2005 (see, ). (Entered: 06/25/2003)
58 Letter dd. June 13, 2003 filed as exhibit (E) by plaintiff Donhauser in support of his motion for injunctive relief. filed as per [57−1] request and order. (fce) Additional attachment(s) added on 7/22/2005 (see, ). (Entered: 06/25/2003)
59 RESPONSE by Glenn S. Goord, Martha E. Yourth, Dominic Martinelli, S. Carter to [54−1] motion for Permanent Injunction (fce) Additional attachment(s) added on 7/22/2005 (see, ). (Entered: 06/30/2003)
60 AFFIDAVIT by Nelson R. Sheingold, AAG in support of Re: [59−1] motion response (fce) Additional attachment(s) added on 7/22/2005 (see, ). (Entered: 06/30/2003)
61 ORDER rejecting Mr. Donhauser's recent submission because if he is attempting to amend his complaint, he must file a motion to do so that complies with the Local Rules. ( signed by Magistrate Judge Gary L. Sharpe ) Date Entered: 7/8/03 (nas) (Entered: 07/08/2003)
62 REQUEST by Donhauser and ORDER granting, for Leave to File reply to defenddants' opposition to plaintiff's motion for injunctive relief. ( signed by C.D.B. as directed by Judge David N. Hurd ) (nas) Additional attachment(s) added on 7/22/2005 (see, ). (Entered: 07/10/2003)
63 REPLY by David Donhauser to response to [54−1] motion for Permanent Injunction (nas) Additional attachment(s) added on 7/22/2005 (see, ). (Entered: 07/10/2003)
64 MOTION w/ supporting affidavit and proposed amended complaint by David Donhauser to Amend [13−1] amended complaint , Hearing set for 8/26/03 , Response Deadline 8/12/03 Motion returnable before Judge/Mag. Judge: Sharpe (tlp) Additional attachment(s) added on 7/22/2005 (see, ). (Entered: 07/28/2003)
65 Scheduling Notice:, Motion Hearing set for 8/26/03 re: [64−1] motion to Amend [13−1] amended complaint , Response to Motion reset to 8/12/03 for [64−1] motion to Amend [13−1] amended complaint (tlp) Additional attachment(s) added on 7/29/2005 (see, ). (Entered: 07/28/2003)
66 RESPONSE by defendants to [64−1] motion to Amend [13−1] amended complaint (fce) Additional attachment(s) added on 7/29/2005 (see, ). (Entered: 08/01/2003)

Case: 9:01-cv-1535 As of: 09/22/2012 11:26 AM EDT 9 of 21

08/14/2003
09/10/2003 09/10/2003 10/14/2003 10/22/2003 02/12/2004 04/08/2004 04/08/2004 04/08/2004 04/08/2004 04/12/2004 04/13/2004 04/15/2004
04/15/2004
04/15/2004

67 REQUEST by Donhauser and ORDER since plaintiff has now served a copy of his motion to amend on dft's, dft. have until 9/16/03 to file a response. Response to Motion reset to 9/19/03 for [64−1] motion to Amend [13−1] amended complaint (signed by Magistrate Judge Gary L. Sharpe) (fce) Additional attachment(s) added on 7/29/2005 (see, ). (Entered: 08/14/2003)
68 RESPONSE by Dominic Martinelli, Martha E. Yourth, Glenn S. Goord to [64−1] motion to Amend [13−1] amended complaint (rjb) Additional attachment(s) added on 7/29/2005 (see, ). (Entered: 09/10/2003)
69 MEMORANDUM by Dominic Martinelli, Martha E. Yourth, Glenn S. Goord in opposition to [64−1] motion to Amend [13−1] amended complaint (rjb) Additional attachment(s) added on 7/29/2005 (see, ). (Entered: 09/10/2003)
70 ORDER denying pltf's [64−1] motion to Amend [13−1] amended complaint. (signed by Judge David N. Hurd) (see) (Entered: 10/16/2003)
71 REQUEST by Donhauser and ORDER; plaintiff's motion to amend was denied as futile, therefore his request to attach exhibits to the proposed amended complaint must also be denied. (signed by Magistrate Judge Gary L. Sharpe) (fce) Additional attachment(s) added on 7/29/2005 (see, ). (Entered: 10/22/2003)
72 ORDER REASSIGNING CASE. Case reassigned to Judge George H. Lowe for all further proceedings. Judge Gary Sharpe no longer assigned to case. Signed by Judge Frederick J. Scullin Jr. on 2/12/04. (ljr, ) (Entered: 02/13/2004)
73 Pltf's MOTION to Vacate Judge Hurd's 70 order.(tlp) Modified on 4/15/2004 to correctly indicate the order pltf's wants to vacate (cbm, ). (Entered: 04/12/2004)
74 Pltf's AFFIDAVIT in support of 73 MOTION to Vacate . (tlp) Modified on 4/15/2004 to delete reference to 71 order (cbm, ). (Entered: 04/12/2004)
75 MEMORANDUM OF LAW re 73 Motion to Vacate filed by David Donhauser. (tlp) (Entered: 04/12/2004)
76 NOTICE of Hearing on Motion 73 MOTION to Vacate 71 Set Deadlines/Hearings: Response to Motion due by 4/26/2004 Reply to Response to Motion due by 5/3/2004. Motion Hearing set for 5/13/2004 on submit before Magistrate Judge George H. Lowe. (tlp) (Entered: 04/12/2004)
77 AFFIDAVIT in Opposition re 73 MOTION to Vacate 71 Set Deadlines/Hearings filed by S. Carter, Glenn S. Goord, Dominic Martinelli, Martha E. Yourth. (Attachments: # 1 Memorandum of Law in Opposition to Plaintiff's Motion to Vacate)(Sheingold, Nelson) (Entered: 04/12/2004)
78 AFFIDAVIT of Service for declaration and memorandum of law in opposition to plaintiff's motion to vacate the Court's Order denying his motion to amend served on plaintiff, pro se on April 13, 2004, filed by S. Carter, Glenn S. Goord, Dominic Martinelli, Martha E. Yourth. (Sheingold, Nelson) (Entered: 04/13/2004)
79 MEMORANDUM−DECISION AND ORDER adopting in part 48 Report and Recommendations; defts' 25 Motion to Dismiss the 2nd amended complaint is GRANTED as to pltf's privacy claim, equal protection claim, due process claim and 5th Amendment claim insofar as it relates to the denial of parole. Defts' motion to dismiss the 2nd amended complaint is DENIED as to pltf's 5th Amendment claim insofar as it relates to the loss of good time credits, etc. Defts are directed to serve and file answer to the surviving portions of the 2nd amended complaint by 5/7/04. Signed by Judge David N. Hurd on 4/15/04. (cbm, ) (Entered: 04/15/2004)
80 MEMORANDUM−DECISION AND ORDER granting in part PLTF'S 54 Motion for Preliminary Injunction: defts and persons acting under their discretion and/or control are enjoined from requiring a prisoner to divulge his/her history of sexual conduct in order to be eligible to participate in the Sexual Offender Counseling Program . Signed by Judge David N. Hurd on 4/15/04. (cbm, ) (Entered: 04/15/2004)
Docket entries 73 motion to vacate and 74 supporting affidavit have been edited to reflect that pltf's motion related to Judge Hurd's 70 order. Per Judge Hurd's chambers, that motion is moot in light of 79 and 80 Memorandum−Decision and

Case: 9:01-cv-1535 As of: 09/22/2012 11:26 AM EDT 10 of 21

04/20/2004
04/21/2004
04/21/2004 04/21/2004 04/22/2004
04/22/2004 04/23/2004
04/27/2004 04/29/2004 04/29/2004 04/29/2004 05/04/2004 05/05/2004 05/07/2004 05/07/2004 05/10/2004

Orders filed 4/15/04. (cbm, ) (Entered: 04/15/2004)
81 ORDERED that the stay on plaintiff's motion for class certification (Dkt. No. 23) is lifted. ORDERED that defendants have 30 days from the filing of this Order to file and serve papers opposing plaintiff's motion for class certification; ORDERED that plaintiff shall have 60 days from the filing date of this Order to file and serve papers replying to defendants opposition papers. Signed by Judge George H. Lowe on 4/20/04. (tlp) (Entered: 04/21/2004)
82 NOTICE OF APPEAL as to 80 Order on Motion for Permanent Injunction,, 79 Order on Motion to Dismiss,,, Order on Report and Recommendations,, by S. Carter, Glenn S. Goord, Dominic Martinelli, Martha E. Yourth. (Attachments: # 1 Affidavit of Service of the Notice of Appeal and Forms C and D upon plaintiff)(Sheingold, Nelson) (Entered: 04/21/2004)
Appeal Filing fee: $ 255.00, receipt number 72930 (wbl, ) (Entered: 04/21/2004)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 82 Notice of Appeal, (dmf) (Entered: 04/27/2004)
83 LETTER BRIEF in support of Defendant's Motion for a Stay of the injunction and the District Court proceedings pending appeal to the Second Circuit Court of Appeals by S. Carter, Glenn S. Goord, Dominic Martinelli, Martha E. Yourth. (Attachments: # 1 Affidavit of James Granger in support of Defendants' Motion for a Stay)(Sheingold, Nelson) (Entered: 04/22/2004)
84 AFFIDAVIT of Service for letter brief and Declaration of James Granger in support of defendants' motion for a stay pending appeal served on plaintiff, pro se on April 22, 2004, filed by S. Carter, Glenn S. Goord, Dominic Martinelli, Martha E. Yourth. (Sheingold, Nelson) (Entered: 04/22/2004)
85 ORDER that defts' motion for a stay is DENIED; that the 80 Preliminary Injunction is VACATED and AMENDED to read as follows: defts and persons acting under their direction and/or control are enjoined from depriving a prisoner of good time credits because of the prisoner's refusal to divulge a history of sexual conduct, including illegal acts for wich no criminal charges have been filed, in order to be eligible for the Sexual Offender Counseling Program. Signed by Judge David N. Hurd on 4/23/2004. (see, ) (Entered: 04/27/2004)
Certified and Transmitted Record on Appeal to US Court of Appeals re 82 Notice of Appeal (dmf) (Entered: 04/27/2004)
86 NOTICE OF APPEAL as to 80 Order on Motion for Permanent Injunction,, 85 Order,,, 79 Order on Motion to Dismiss,,, Order on Report and Recommendations,, by S. Carter, Glenn S. Goord, Dominic Martinelli, Martha E. Yourth. (Sheingold, Nelson) (Entered: 04/29/2004)
87 AFFIDAVIT of Service for Notice of Appeal served on plaintiff, pro se on April 29, 2004, filed by S. Carter, Glenn S. Goord, Dominic Martinelli, Martha E. Yourth. (Sheingold, Nelson) (Entered: 04/29/2004)
Filing fee: $ 255.00, receipt number 72859 (wbl, ) (Entered: 04/29/2004)
88 MOTION to Appoint Counsel by David Donhauser. DATES TO BE SET.(nas) (Entered: 05/06/2004)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 86 Notice of Appeal (dmf) (Entered: 05/05/2004)
89 ANSWER to Amended Complaint by Glenn S. Goord, Dominic Martinelli, Martha E. Yourth.(Sheingold, Nelson) (Entered: 05/07/2004)
90 NOTICE of Hearing on Motion 88 MOTION to Appoint Counsel: MOTION ON SUBMISSION ONLY scheduled for 6/15/04. Response papers, if any, are due by 6/4/04.(nas) (Entered: 05/10/2004)
91 AFFIDAVIT of Service for Answer to Amended Complaint served on Plaintiff, pro se on May 7, 2004, filed by Glenn S. Goord, Dominic Martinelli, Martha E. Yourth. (Sheingold, Nelson) (Entered: 05/10/2004)

Case: 9:01-cv-1535 As of: 09/22/2012 11:26 AM EDT 11 of 21

05/11/2004 05/14/2004 05/17/2004 05/17/2004
05/18/2004
05/18/2004
05/19/2004 05/19/2004 05/20/2004 05/24/2004 05/24/2004 05/25/2004 05/26/2004 05/27/2004
06/01/2004 06/03/2004
06/08/2004

92 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing (cbm, ) (Entered: 05/11/2004)
93 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing (forwarded to Judge Lowe for review) (cbm, ) (Entered: 05/14/2004)
94 Letter from Nelson R. Sheingold for Glenn S. Goord, Dominic Martinelli, Martha E. Yourth requesting an extension of time in which to respond to plaintiff's motion for class certification. (Sheingold, Nelson) (Entered: 05/17/2004)
95 DOCUMENT REJECTION ORDER as to returning plaintiff's submission. Pltf. is referred to Local Rule 7.1, as he must comply with this rule when filing a motion. If pltf. is trying to file a motion for an injunction, he must also comply with Federal Rule 65. Signed by Judge George H. Lowe on 5/17/04. (tlp) (Entered: 05/18/2004)
96 AFFIDAVIT of Service for letter request for an extension of time to respond to plaintiff's motion for class certification served on plaintiff, pro se on May 18, 2004, filed by Glenn S. Goord, Dominic Martinelli, Martha E. Yourth. (Sheingold, Nelson) (Entered: 05/18/2004)
97 ORDER granting Nelson Sheingold AAG's request for an extension of time to file a response to 23 Motion for Miscellaneous/Other Relief: Response to Motion due by 6/30/2004. Signed by S. Sutter as directed by Judge George H. Lowe on 5/18/04. (nas) (Entered: 05/19/2004)
98 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing. (Inmate Memo, re: 4/15/2004 Order) (see) (Entered: 05/21/2004)
99 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing. (Inmate Letter, re: 4/15/2004 Order) (see) (Entered: 05/21/2004)
100 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing. Inmate letter, re: 4/15/2004 Order. (see) (Entered: 05/24/2004)
101 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing. Inmate letter, re: 4/15/2004 Order. (see) (Entered: 05/24/2004)
102 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing. Inmate letter, re: 4/15/2004 Order. (see) (Entered: 05/24/2004)
103 SEALED DOCUMENT − letters to Judge Hurd from inmates re: 4/15/04 MDO; sealed by oral order of Judge Hurd; not available for electronic viewing. (cbm, ) (Entered: 05/25/2004)
104 SEALED DOCUMENT − letters to Judge Hurd from inmates re: 4/15/04 MDO; not available for electronic viewing (forwarded to Judge Lowe for review). (cbm, ) (Entered: 05/26/2004)
105 DOCUMENT REJECTION ORDER as to returning plaintiff's recent submission because a reply to an answer is not authorized. Furthermore, pursuant to Rule 11(a) of the Federal Rules of Civil Procedure, all pleadings must be signed. Any unsigned papers will be rejected without processing. Signed by Judge George H. Lowe on 5/26/04. (nas) (Entered: 05/31/2004)
106 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing. (Inmate letter, re: 4/15/2004 Order) (see) (Entered: 06/03/2004)
CLERK'S CORRECTION OF DOCKET ENTRY as to 106 Sealed Document: document was previously entered, but entered w/no document number. Deleted entry w/no document #, and re−docketed to produce document #106. (see) (Entered: 06/03/2004)
107 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing. (see) (Entered: 06/09/2004)

Case: 9:01-cv-1535 As of: 09/22/2012 11:26 AM EDT 12 of 21

06/08/2004 06/08/2004
06/16/2004 06/24/2004
06/24/2004 06/29/2004
06/30/2004
07/13/2004 07/16/2004
07/20/2004
07/30/2004 07/30/2004 08/13/2004 09/09/2004 09/28/2004 10/20/2004 11/15/2004

108 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing. Inmate letter, re: 4/15/2004 Order. (see) (Entered: 06/09/2004)
109 ORDER stating that the Clerk shall enter the appearance of counsel of Robert Isseks for plaintiff and terminate the pending motion for appointment of counsel. 88 MOTION to Appoint Counsel filed by David Donhauser, Motions terminated. Signed by S. Sutter as directed by Judge George H. Lowe on 6/8/04. (nas) (Entered: 06/11/2004)
110 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing. Inmate letter, re: 4/15/2004 Order. (see) (Entered: 06/17/2004)
111 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing. Letter on behalf of an Inmate, re: 4/15/2004 Order. (see) Modified on 6/24/2004, texted in that letter is on behalf of an inmate. (see, ). (Entered: 06/24/2004)
112 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing. Inmate Letter, re: 4/15/2004 Order. (see) (Entered: 06/24/2004)
113 Letter from Nelson R. Sheingold for Glenn S. Goord, Dominic Martinelli, Martha E. Yourth requesting on behalf of both parties that plaintiff's motion for class certification be held in abeyance pending appeal. (Attachments: # 1 Exhibit A, Order of the Second Circuit Granting Stay)(Sheingold, Nelson) (Entered: 06/29/2004)
114 ORDER granting defendants' request. Plaintiff's motion for class certification (dkt no. 23) is held in abeyance pending a determination on the appeal presently before the Second Circuit Court of Appeals. Signed by S. Sutter as directed by Judge George H. Lowe on 6/30/04. (nas) (Entered: 07/05/2004)
115 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing; letter from inmate re: Judge Hurd's 4/15/04 order (forwarded to Judge Lowe for review). (cbm, ) (Entered: 07/16/2004)
NOTICE of Hearing: Scheduling Conference set for 7/20/2004 08:45 AM before Magistrate Judge George H. Lowe. Plaintiff's counsel will be responsible for initiating the conference call using ATTor any teleconference service and should call Magistrate Judge Lowe's chambers at (315) 234−8618, a dedicated conference line, which may not be used for other purposes. (tjm) (Entered: 07/16/2004)
Minute Entry for proceedings held before Judge George H. Lowe : Pretrial Telephone Conference held. Appearances: Robert Issek, Esq., for Plaintiff; AAG Nelson Sheingold, Esq., for Defendants. Further proceedings stayed pending outcome of appeal. (Tape #11) (tjm, ) (Entered: 07/23/2004)
USCA Case Number is 04−2222−pr (LEAD) for defts' 82 Notice of Appeal.(cbm, ) (Entered: 07/30/2004)
USCA Case Number is 04−2490−pr (CON) for defts' 86 appeal. (cbm, ) (Entered: 07/30/2004)
116 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing. Two Letters from inmates, re: DNH's 4/15/2004 MDO. (see) (Entered: 08/16/2004)
117 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing: 3 letters from inmates in regard to Judge Hurd's 4/15/04 MDO (forwarded to Judge Lowe for review). (cbm, ) (Entered: 09/09/2004)
118 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing. (Inmate letter, re: 4/15/2004 Order) (see) (Entered: 09/28/2004)
119 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing. Letter from inmate, re: DNH's 4/15/2004 MDO. (see) (Entered: 10/20/2004)
120 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing. (Inmate letter, re: 4/15/2004 Order) (see) (Entered: 11/15/2004)

Case: 9:01-cv-1535 As of: 09/22/2012 11:26 AM EDT 13 of 21

11/22/2004 02/01/2005
02/01/2005 02/01/2005
02/14/2005
02/14/2005 02/15/2005 02/15/2005 02/16/2005
02/22/2005 03/11/2005 03/11/2005 03/22/2005 03/29/2005 04/05/2005 04/22/2005 06/07/2005 07/06/2005

121 NOTICE of Docketing Record on Appeal from USCA re 86 Notice of Appeal filed by Glenn S. Goord, S. Carter, Martha E. Yourth, Dominic Martinelli. USCA Case Number 04−2222 (dmf) (Entered: 11/22/2004)
122 ORDER, that the stay is lifted; pltf's supplemental argument is accepted; defts may submit opposition papers on or before 2/14/2005; and that the motion shall be on submit w/o oral argument. Signed by Judge David N. Hurd on 1/31/2005. (see) (Entered: 02/01/2005)
Set/Reset Deadlines as to 23 Motion for Miscellaneous/Other Relief. Response to Motion due by 2/14/2005. Motion Hearing set for 2/25/2005 on SUBMIT, no appearances required, before Judge David N. Hurd. (see) (Entered: 02/01/2005)
123 JOINT AFFIRMATION by Robert Isseks, Esq &Alex Smith, Esq for David Donhauser, requesting that the Court lift the stay for the motion for class certification and in the event the stay is lifted to briefly supplement pltf's pro se argument in support of the motion. (Request listed in Affirmation is Granted pursuant to the 122 Order) (see) (Entered: 02/01/2005)
124 AFFIDAVIT in Opposition re 23 Motion for Miscellaneous/Other Relief filed by Glenn S. Goord, Martha E. Yourth, Dominic Martinelli. (Attachments: # 1 Memorandum of Law in Opposition to Plaintiff's Motion for Class Certification# 2 Exhibit(s) Odom Unpublished Decision)(Sheingold, Nelson) (Entered: 02/14/2005)
125 CERTIFICATE OF SERVICE by Glenn S. Goord, Martha E. Yourth, Dominic Martinelli re 124 Affidavit in Opposition to Motion, via CM/ECF (Sheingold, Nelson) (Entered: 02/14/2005)
126 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing. Inmate Letter, re: 4/15/2005 Order. (see) (Entered: 02/15/2005)
127 ORDER granting 23 Motion for class certification . Signed by Judge David N. Hurd on 2/15/05. (tlp) (Entered: 02/15/2005)
Certified and Transmitted 1st supplemental Record on Appeal to US Court of Appeals re 82 and 86 Notice of Appeal consisting of the following original SEALED documents, Docket No(s).: 92−93, 98−104, 106−108, 110−112, 115−119 and 126. (cbm, ) (Entered: 02/16/2005)
128 NOTICE from Mid−State Correctional Facility that Donhauser is temporarily absent from the facility. (dd 2/18/05) (nas) (Entered: 02/22/2005)
129 NOTICE of Change of Address by Robert N. Isseks for David Donhauser Effective Date 3/10/05 New Address: Springville, NY (nas) Modified on 3/16/2005 (nas, ). (Entered: 03/14/2005)
Partial Filing fee: $ 135.93, receipt number SYR002096 (nas) (Entered: 03/16/2005)
130 RETURN RECEIPT received from the USCA for the 2nd Circuit, re: service of the 1st Supplemental Appeal Record Sent to USCA. (see) (Entered: 03/23/2005)
131 Copy of the 9:05−CV−0096 Gams v. Goord, et al. Order to be consolidated with 9:01−CV−1535. (tlp) (Entered: 03/31/2005)
132 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing. (see) (Entered: 04/06/2005)
133 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing. (Inmate letter) (see) (Entered: 04/25/2005)
134 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing. (Letter on behalf of Inmate, re: 4/15/2004 Order) (see) (Entered: 06/13/2005)
135 MANDATE of USCA: petition by defendants−appellants for leave to file an interlocutory appeal of district court's order granting class certification is DENIED. The appeal docketed under USCA No. 05−8004−op is therefore dismissed. (cbm, ) (Entered: 07/21/2005)

Case: 9:01-cv-1535 As of: 09/22/2012 11:26 AM EDT 14 of 21

07/19/2005 07/25/2005 09/30/2005 09/30/2005 11/23/2005 12/09/2005
04/07/2006 04/07/2006 04/07/2006 04/24/2006 05/01/2006 05/02/2006 05/03/2006 05/09/2006
05/15/2006

Appeal Record Returned. (see) (Entered: 07/19/2005)
136 ORDER that this action is consolidated with 9:05−CV−543. 9:01−cv−1535 is the lead case. Signed by Judge David N. Hurd on 7/22/05. (nas) (Entered: 07/25/2005)
Sealed documents 92, 93, 98−104, 106−108, 110−112,115−119, 126, 132−134 were returned to U.S. Court of Appeals, to the attention of Connie Mazariego. (cbm, ) (Entered: 09/30/2005)
137 NOTICE from USCA clerk's office recalling the 135 Mandate, as it was issued in error. (cbm, ) (Entered: 09/30/2005)
138 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing. (Inmate Letter) (see) (Entered: 11/23/2005)
139 DECISION AND ORDER, that the Clerk of the Court consolidate civil actions Donhauser v. Goord, 9:01−cv−1535 and Garcia v. Goord, 9:04−cv−1117. The clerk shall reassign Garcia v. Goord, 9:04−cv−1117 to the Hon. David N. Hurd, as presiding District Judge, and refer such case to George H. Lowe, as Magistrate Judge. Civil action number 9:01−cv−1535 shall be referred to and treated as the "lead" case, and all subsequent Orders of the Court, and papers that are submitted by the parties hereto that pertain to any of the foregoing actions shall be filed in civil action number 9:01−cv−1535; that the Clerk file and docket a copy of this Order in case number 9:01−cv−1535; that the motion for a stay of defendants' deadline to respond to the complaint pending a decision on the appeal in Donhauser (Docket No. 12) is granted; that the defendants shall file a response to the complaint in accordance with the Orders of Judge Hurd or Magistrate Judge Lowe, following the Second Circuit's decision on the appeal in Donhauser v. Goord. Signed by Judge Gary L. Sharpe on 12/9/2005. (jel, ) (Entered: 12/09/2005)
140 SEALED DOCUMENT (Inmate Letter, re: 4/15/2006 MDO) − maintained in Clerk's Office and not available for electronic viewing. (see) (Entered: 04/10/2006)
141 SEALED DOCUMENT (Inmate Letter, re: 4/15/2004 MDO)− maintained in Clerk's Office and not available for electronic viewing. (see) (Entered: 04/10/2006)
142 SEALED DOCUMENT (Inmate Letter, re: 4/15/2004 MDO)− maintained in Clerk's Office and not available for electronic viewing. (see) (Entered: 04/10/2006)
143 MANDATE of USCA as to 82 Notice of Appeal, filed by Glenn S. Goord, S. Carter,, Martha E. Yourth, Dominic Martinelli, 86 Notice of Appeal filed by Glenn S. Goord, S. Carter, Martha E. Yourth, Dominic Martinelli, the April 23, 2004 Order is VACATED and this case is REMANDED. (tlp) (Entered: 04/25/2006)
144 SEALED DOCUMENT (letter to Judge Hurd from inmate re: sex offender program at his facility) − maintained in Clerk's Office and not available for electronic viewing (cbm, ) (Entered: 05/02/2006)
145 Letter Motion from Nelson R. Sheingold for Glenn S. Goord, Martha E. Yourth, Dominic Martinelli requesting that the time for defendants to answer the complaint be set for on or before June 6, 2006 submitted to Judge Lowe. (Sheingold, Nelson) (Entered: 05/02/2006)
146 ORDER granting 145 Letter Request, Glenn S. Goord answer due 6/6/2006; Martha E. Yourth answer due 6/6/2006; Dominic Martinelli answer due 6/6/2006 . Signed by Judge George H. Lowe on 5/3/06. (nas ) (Entered: 05/03/2006)
NOTICE of Hearing: Status Conference set for 5/18/2006 10:30 AM in Utica before Judge David N. Hurd. Appearance required. Please file a concise letter outlining the status of this action as it relates to the recent 2nd Circuit Order and any hearing that should be held pursuant thereto by 12:00 Noon on May 16, 2006.(cmr, ) (Entered: 05/09/2006)
147 LETTER BRIEF on behalf of all parties informing the Court of the status of this matter pursuant to the Court's direction preceding the May 18, 2006 status conference by Glenn S. Goord, Martha E. Yourth, Dominic Martinelli, S. Carter. (Sheingold, Nelson) (Entered: 05/15/2006)

Case: 9:01-cv-1535 As of: 09/22/2012 11:26 AM EDT 15 of 21

05/18/2006 05/19/2006 05/19/2006 05/22/2006 05/30/2006 05/30/2006 06/01/2006
06/05/2006 06/05/2006 06/09/2006 06/26/2006 06/29/2006 07/10/2006 07/26/2006 10/03/2006
10/04/2006 10/13/2006 11/02/2006 11/06/2006 12/22/2006

148 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing. (Inmate letter) (see) (Entered: 05/18/2006)
149 Minute Entry for proceedings held before Judge David N. Hurd : Status Conference held on 5/18/2006 in Utica, New York. (Court Reporter None) (cmr, ) (Entered: 05/19/2006)
150 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing. (Letter on behalf of Inmate, re: 4/15/2004 Order) (see) (Entered: 05/22/2006)
151 ORDER consolidating this action with 9:01−CV−0411. This action is to be the lead action. Signed by Judge David N. Hurd on 5/22/06. (rjb, ) (Entered: 05/22/2006)
152 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing. (Inmate letter) (see) (Entered: 05/30/2006)
153 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing. (Inmate Letter to Judge Hurd) (see) (Entered: 05/30/2006)
154 Letter Motion from Nelson R. Sheingold on behalf of all parties for Glenn S. Goord, Martha E. Yourth, Dominic Martinelli requesting that the discovery deadline be set for October 6, 2006, and to clarify the status of the merged Complaints submitted to Judge Hurd. (Sheingold, Nelson) (Entered: 06/01/2006)
155 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing. (Inmate letter) (see) (Entered: 06/05/2006)
156 Endorsement ORDER granting the 154 Letter Request. Discovery due by 10/6/2006.Signed by Judge David N. Hurd on 6/5/2006. (see) (Entered: 06/06/2006)
157 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing. (Inmate letter) (see) (Entered: 06/09/2006)
158 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing. (Inmate letter, re: 4/15/04 MDO) (see) (Entered: 06/26/2006)
159 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing. (Inmate Letter) (see) (Entered: 06/30/2006)
160 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing. (Inmate letter) (see) (Entered: 07/10/2006)
161 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing. (Inmate Letter) (see) (Entered: 07/26/2006)
162 Letter Motion from Nelson R. Sheingold on behalf of all parties for Glenn S. Goord, Michael Maher, Glenn S. Goord, Martha E. Yourth, Dominic Martinelli, S. Carter requesting an extension of the discovery deadline until December 29, 2006 submitted to Judge Hurd. (Sheingold, Nelson) (Entered: 10/03/2006)
163 ORDER granting 162 Letter Request, Discovery due by 12/29/2006. Signed by S. Sutter as directed by Judge David N. Hurd on 10/4/06. (nas) (Entered: 10/04/2006)
164 Mail Returned as Undeliverable (discharged), re: 163 Order. Sent to Ricardo Lamberty, Address sent to Cape Vincent Correctional Facility (rjb, ) (Entered: 10/16/2006)
165 SEALED DOCUMENT (letter to Judge Hurd from Inmate, re: sex offender program at facility) − maintained in Clerk's Office and not available for electronic viewing. (see) (Entered: 11/02/2006)
166 SEALED DOCUMENT − maintained in Clerk's Office and not available for electronic viewing. (letter to Judge Hurd from Inmate, re: sex offender program at facility) (see) (Entered: 11/06/2006)
167 Letter Motion from Nelson R. Sheingold for Glenn S. Goord, Michael Maher, Glenn S. Goord, Martha E. Yourth, Dominic Martinelli, S. Carter requesting an extension of the discovery deadline until January 31, 2007 on behalf of both parties

Case: 9:01-cv-1535 As of: 09/22/2012 11:26 AM EDT 16 of 21

01/03/2007 01/04/2007 01/12/2007
01/25/2007 03/13/2007 03/13/2007 08/31/2007 12/17/2007 01/16/2008
01/16/2008
01/16/2008 01/18/2008
01/18/2008 01/18/2008 01/23/2008 01/23/2008 01/28/2008 01/28/2008

submitted to Judge Hurd. (Sheingold, Nelson) (Entered: 12/22/2006)
168 ORDER granting 167 Letter Requesting an extension of the discovery ddl until 1/31/2007. Signed by Judge David N. Hurd on 1/3/2007. (see) (Entered: 01/03/2007)
Mailed a copy of the 168 Order on Letter Request to all non−CM/ECF participants on 1/4/2007. (see) (Entered: 01/04/2007)
169 Mail Returned as Undeliverable. Re: service of the 168 Order on Letter Request sent to Ricardo Lamberty, 86−A−7921 Address sent to Cape Vincent Correctional Facility; Route 12E; P.O. Box 739; Cape Vincent, NY 13618 (see) (Entered: 01/16/2007)
According to DOCS website, Ricardo Lamberty was released from Midstate CF on 5/22/06; no current address is known. (cbm, ) (Entered: 01/25/2007)
170 SEALED Inmate letter − maintained in Clerk's Office and not available for electronic viewing. (see) (Entered: 03/13/2007)
Oral ORDER to seal document number 170 . Entered by Judge David N. Hurd on 3/13/2007. (see) (Entered: 03/13/2007)
171 STATUS REPORT by Glenn S. Goord, Michael Maher, Glenn S. Goord, Martha E. Yourth, Dominic Martinelli, S. Carter. (Brown, Megan) (Entered: 08/31/2007)
NOTICE of Hearing:Final pretrial conference, jury selection and Trial set for 3/17/2008 09:30 AM in Utica before Judge David N. Hurd. Appearance required. Pretrial papers due by 12:00 Noon on 2/20/08.(cmr, ) (Entered: 12/17/2007)
NOTICE of Hearing:Status Conference set for 1/22/2008 10:30 AM, 1st Floor Video Conference Room in Albany before Judge David N. Hurd. Appearance required. The parties are directed to fax a letter to Judge Hurd at 315−793−8034 by 12:00 Noon on 1/18/08 outlining any outstanding issues that need to be resolved prior to trial scheduled for 3/17/08.(cmr, ) (Entered: 01/16/2008)
NOTICE of Hearing:Status Conference reset for 1/22/2008 11:00 AM in UTICA before Judge David N. Hurd. Appearance required. Please adjust your records to reflect this change. The request for letters remains the same. (cmr, ) (Entered: 01/16/2008)
Mailed both Notice of Hearings filed on 1/16/2008 to the 3 pltfs listed on the docket sheet on 1/16/2008 by regular mail. (see) (Entered: 01/16/2008)
Set/Reset Hearings: Status Conference reset for 2/6/2008 11:00 AM in Utica per verbal request of counsel and verbal order of Judge David N. Hurd. Appearance required. Please adjust your calendars to reflect this change. (cmr, ) (Entered: 01/18/2008)
172 LETTER BRIEF confirming adjournment of conference by Sunny Schriver, Michael Maher, Glenn S. Goord, Dominic Martinelli, S. Carter. (Brown, Megan) (Entered: 01/18/2008)
Copy of notice of status conference (NEF) was sent to non−efilers by regular mail. (cbm, ) (Entered: 01/18/2008)
173 SEALED Inmate Letter − maintained in Clerk's Office and not available for electronic viewing. (see) (Entered: 01/24/2008)
174 Mail Returned as Undeliverable. Sent to Ricardo Lamberty, 86−A−7921 Address sent to Cape Vincent Correctional Facility; Route 12E, PO Box 739; Cape Vincent, NY 13618 (see) (Entered: 01/24/2008)
175 Mail Returned as Undeliverable. Re: Service of the Notice of Hearing dtd 1/18/2008 sent to Joseph Garcia Address sent to 20 Palladina Ave., Apt. 4 B; New York, NY 10035. (see) (Entered: 01/28/2008)
176 Mail Returned as Undeliverable. Re: Service of the Notice of Hearings filed on 1/16/2008 sent to Joseph Garcia Address sent to 20 Palladina Ave.; Apt. 4 B; New

Case: 9:01-cv-1535 As of: 09/22/2012 11:26 AM EDT 17 of 21

01/28/2008 01/31/2008 02/04/2008 02/04/2008 02/14/2008 02/19/2008 02/28/2008 03/03/2008 03/11/2008 03/13/2008 03/20/2008 03/26/2008 04/03/2008 04/24/2008 04/30/2008 05/01/2008

York, NY 10035. (see) (Entered: 01/28/2008)
Re−mailed the 1/16/2008 &1/18/2008 Scheduling Notices to pltf Joseph Garcia on 1/28/2008. (see) (Entered: 01/28/2008)
Set/Reset Hearings: Status Telephone Conference set for 2/1/2008 12:30 PM before Judge David N. Hurd. The parties are hereby directed to contact Judge Hurd's chambers at 315−793−9571. (cmr, ) (Entered: 01/31/2008)
177 Minute Entry for proceedings held before Judge David N. Hurd: Telephone Conference held on 2/1/2008. Action settled in principle. Proposed settlement agreement to be submitted to Ct. by 2/15/08. (Court Reporter None) (cmr, ) (Entered: 02/04/2008)
178 Mail Returned as Undeliverable. Re: service of the 1/18/2008 Notice of Hearing sent to Ricardo Lamberty, 86−A−7921 Address sent to Cape Vincent Correctional Facility; Route 12E, P.O. Box 739; Cape Vincent, NY 13618. (see) (Entered: 02/04/2008)
179 Letter Motion from Megan M. Brown, AAG for Sunny Schriver, Michael Maher, Glenn S. Goord, Martha E. Yourth, Dominic Martinelli, S. Carter requesting an extension to submit proposed settlment papers submitted to Judge Hurd. (Brown, Megan) (Entered: 02/14/2008)
180 NOTICE of Change of Address by Robert N. Isseks as to Donald Donhauser Old Address: 12200 Transit Line Rd., PO Box 2500, Springville, NY 14141 New Address: Greene Correctional Facility, PO Box 975, Coxsackie, NY 12051. (ban) (Entered: 02/21/2008)
181 Letter Motion from Megan M. Brown for Michael Maher, Glenn S. Goord, Martha E. Yourth, Dominic Martinelli, S. Carter requesting an extension of time within which to submit the proposed private settlement agreement submitted to Judge Hurd. (Brown, Megan) (Entered: 02/28/2008)
182 ORDER granting 181 Letter Request. Signed by Judge David N. Hurd on 2/29/08. (nas) (Entered: 03/03/2008)
183 Mail Returned as Undeliverable. re: 182 Order on Letter Request sent to Ricardo Lamberty Address sent to Cape Vincent Correctional Facility (nas ) (Entered: 03/12/2008)
184 SETTLEMENT AGREEMENT by Joseph Garcia, Michael Maher, Glenn S. Goord, Martha E. Yourth, Dominic Martinelli, S. Carter. (Attachments: # 1 Exhibit(s) private settlement agreement)(Brown, Megan) (Entered: 03/13/2008)
185 Minute Entry for proceedings held before Judge David N. Hurd: Telephone Conference held on 3/18/2008 (Court Reporter None) (cmr, ) (Entered: 03/20/2008)
186 OBJECTION to the 184 Settlement Agreement by David Donhauser. (Isseks, Robert) (Entered: 03/26/2008)
187 NOTICE of Change of Address by Robert N. Isseks Effective Date 4/1/08 Old Address: Green Correctional Facility, PO Box 975, Coxsackie, NY 12051. New Address: Great Meadow Correctional Facility, PO Box 51, Comstock, NY 12821−0051 (ban) (Entered: 04/04/2008)
188 NOTICE of Appearance by Douglas J. Goglia on behalf of Sunny Schriver, Michael Maher, Glenn S. Goord, Martha E. Yourth, Dominic Martinelli (Attachments: # 1 Declaration of Service via CM/ECF)(Goglia, Douglas) (Entered: 04/24/2008)
189 Minute Entry for proceedings held before Judge David N. Hurd: Telephone Conference held on 4/28/2008 (Court Reporter None) (cmr, ) (Entered: 04/30/2008)
190 LETTER BRIEF by David Donhauser. (Isseks, Robert) (Entered: 05/01/2008)

Case: 9:01-cv-1535 As of: 09/22/2012 11:26 AM EDT 18 of 21

05/01/2008
05/01/2008
05/02/2008 05/13/2008
05/19/2008 06/05/2008 06/06/2008 06/09/2008 06/10/2008 06/11/2008 06/16/2008 06/18/2008 06/19/2008 06/20/2008 06/23/2008 06/27/2008 07/02/2008 07/07/2008

191 LETTER BRIEF on Response to David Donhauser's Objections to Private Settlement Agreement by Sunny Schriver, Glenn S. Goord, Martha E. Yourth, Dominic Martinelli, S. Carter. (Attachments: # 1 Appendix Davis v. Dennison (2d Cir Affirmance), # 2 Appendix Davis v. Dennison (Order adopting Rep−Rec), # 3 Appendix Davis v. Dennison (Rep−Rec), # 4 Declaration of Service)(Goglia, Douglas) (Entered: 05/01/2008)
192 LETTER BRIEF re: Notice to Class by Sunny Schriver, Michael Maher, Glenn S. Goord, Martha E. Yourth, Dominic Martinelli, S. Carter. (Attachments: # 1 Appendix Proposed Notice to Class re: Settlement, # 2 Declaration of Service via CM/ECF)(Goglia, Douglas) (Entered: 05/01/2008)
193 AFFIDAVIT re 191 LETTER BRIEF, re: Service upon Plaintiff Donhauser at Great Meadow CF by Sunny Schriver, Michael Maher, Glenn S. Goord, Martha E. Yourth, Dominic Martinelli, S. Carter. (Goglia, Douglas) (Entered: 05/02/2008)
194 ORDER that the attached Notice with the proposed Settlement Agreement is approved. DOCS will post the Notice in all facility law libraries, general libraries, inmate housing areas and all Sex Offender Counseling and Treatment Program areas. Signed by Judge David N. Hurd on 5/13/08. (Attachments: # 1 Notice)(nas) (Entered: 05/13/2008)
195 Mail Returned as Undeliverable. re: 194 Order, sent to Lamberty Address sent to Cape Vincent Correctional Facility (nas ) (Entered: 05/21/2008)
202 ***SEALED DOCUMENT/Inmate letter, re: settlement. (see) (see, ). (Entered: 06/06/2008)
203 ***SEALED DOCUMENT/Letter to Court from inmate objecting to settlement agreement. (see) (see, ). (Entered: 06/06/2008)
204 ***SEALED DOCUMENT/Letter to Court from Inmate Objecting to Settlement. (see) (see, ). (Entered: 06/09/2008)
206 ***SEALED DOCUMENT/Letter from Inmate objecting to settlement. (see) (see, ). (Entered: 06/10/2008)
207 ***SEALED DOCUMENT/Inmate letter, re: settlement. (see) (see, ). (Entered: 06/12/2008)
208 ***SEALED DOCUMENT/Inmate letter objecting to settlement . (see) (Additional attachment(s) added on 7/15/2008: # 1 Document #208, part 2) (see, ). (Entered: 06/16/2008)
209 ***SEALED DOCUMENT/Letters to Court form 3 inmates objecting to settlement. (see) (Additional attachment(s) added on 7/9/2008: # 1 Inmate Letter #2, # 2 Inmate Letter #3) (see, ). (Entered: 06/18/2008)
210 ***SEALED DOCUMENT/letters to Court from 3 inmates, re: settlement. (see) (Additional attachment(s) added on 7/14/2008: # 1 Document #210, part 2, # 2 Document #210, part 3) (see, ). (Entered: 06/20/2008)
211 ***SEALED DOCUMENT/Letter from inmate objecting to settlment. (see) (see, ). (Entered: 06/20/2008)
212 ***SEALED DOCUMENT/Letters from 3 inmates, re: settlement. (see) (Additional attachment(s) added on 7/14/2008: # 1 Document #212, part 2, # 2 Document #212, part 3) (see, ). (Entered: 06/24/2008)
213 ***SEALED DOCUMENT/Inmate letter dtd 6/20/2008. (see) (Additional attachment(s) added on 7/9/2008: # 1 Inmate letter #2) (see, ). (Entered: 06/27/2008)
214 ***SEALED DOCUMENT/Inmate letters Objecting to Settlement. (see) (Additional attachment(s) added on 7/9/2008: # 1 Inmate letter #2, # 2 Inmate letter #3) (see, ). (Entered: 07/07/2008)
215 ***SEALED DOCUMENT/Letters from 2 inmates objecting to settlement. (see) (Additional attachment(s) added on 7/9/2008: # 1 Inmate letter #2) (see, ). (Entered: 07/07/2008)

Case: 9:01-cv-1535 As of: 09/22/2012 11:26 AM EDT 19 of 21

07/08/2008 07/09/2008 07/10/2008 07/11/2008 07/14/2008
07/16/2008 07/30/2008
07/30/2008 07/31/2008 08/11/2008 08/15/2008 08/20/2008 08/25/2008 08/28/2008
09/02/2008 09/05/2008 09/11/2008
09/11/2008 09/19/2008

216 ***SEALED DOCUMENT/Inmate letter w/enclosures objecting to settlement. (see) (Additional attachment(s) added on 7/9/2008: # 1 Attachment #2, # 2 Attachment #3) (see, ). (Entered: 07/08/2008)
217 ***SEALED DOCUMENT/Inmate letter objecting to settlement. (see) (see, ). (Entered: 07/10/2008)
218 ***SEALED DOCUMENT/Inmate letters objecting to settlement. (see) (Additional attachment(s) added on 7/15/2008: # 1 Document #218, part 2) (see, ). (Entered: 07/10/2008)
219 ***SEALED DOCUMENT/Inmate Objections to Settlement. (see) (Additional attachment(s) added on 7/15/2008: # 1 Document #219, part 2) (see, ). (Entered: 07/14/2008)
220 ***SEALED DOCUMENT/Inmate Objections to Settlement. (see) (Additional attachment(s) added on 7/15/2008: # 1 Document #220, part 2, # 2 Document #220, part 3, # 3 Document #220, part 4, # 4 Document #220, part 5) (see, ). (Entered: 07/14/2008)
222 ***SEALED DOCUMENT/Copy of inmate letter to DOCS &an inmate letter objecting to settlement. (see) (Additional attachment(s) added on 7/22/2008: # 1 Document #222, part 2) (see, ). (Entered: 07/17/2008)
223 Minute Entry for proceedings held before Judge David N. Hurd: Video Evidentiary Hearing held on 7/29/2008. Adjourned to 9/5/08 @ 10:30 a.m. via video from Albany, NY. Proposed orders and comments due by 8/29/08. (Court Reporter Nancy Freddoso) (cmr, ) (Entered: 07/30/2008)
Letters filed at docs. 196−222 were emailed to Attorneys Isseks and Goglia. (cbm ) (Entered: 07/30/2008)
NOTICE of Hearing:Video Settlement Conference set for 9/5/2008 10:30 AM in Albany, 1st Floor Video Conference Room before Judge David N. Hurd. Appearance required.(cmr, ) (Entered: 07/31/2008)
224 ***SEALED DOCUMENT/Inmate letters. (see) (Additional attachment(s) added on 8/11/2008: # 1 Letter from inmate Groins) (see, ). (Entered: 08/11/2008)
225 ***SEALED DOCUMENT/Inmate letter. (see) (see, ). (Entered: 08/18/2008)
226 ***SEALED DOCUMENT/Two Inmate Letters. (see) (Additional attachment(s) added on 8/21/2008: # 1 Inmate letter #2) (see, ). (Entered: 08/21/2008)
227 ***SEALED DOCUMENT/Inmate letter. (see) (see, ). (Entered: 08/25/2008)
228 Letter Motion from Douglas J. Goglia, AAG for Sunny Schriver, Michael Maher, Glenn S. Goord, Martha E. Yourth, Dominic Martinelli requesting Enlargment of Time in which to respond to inmate objections submitted to Judge Hurd. (Attachments: # 1 Declaration of Service)(Goglia, Douglas) (Entered: 08/28/2008)
229 ORDER granting 228 Letter Request. Signed by Judge David N. Hurd on 9/2/08. (nas) (Entered: 09/02/2008)
230 Mail Returned as Undeliverable. re: 229 Order on Letter Request sent to Lamberty Address sent to Cape Vincent Correctional Facility (nas ) (Entered: 09/05/2008)
231 LETTER BRIEF in Response to Inmate Objections to Proposed Settlement Agreement by Sunny Schriver, Michael Maher, Glenn S. Goord, Martha E. Yourth, Dominic Martinelli, S. Carter. (Attachments: # 1 Supplement Edwards v. Ladlair (Unpublished Decision), # 2 Declaration of Service)(Goglia, Douglas) (Entered: 09/11/2008)
232 LETTER BRIEF by David Donhauser. (Isseks, Robert) (Entered: 09/11/2008)
233 Letter from Douglas J. Goglia, AAG for Sunny Schriver, Michael Maher, Glenn S. Goord, Martha E. Yourth, Dominic Martinelli, S. Carter requesting that video−conference be canceled as unnecessary submitted to Judge Hurd. (Attachments: # 1 Declaration of Service)(Goglia, Douglas) (Entered: 09/19/2008)

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09/24/2008
10/03/2008
10/16/2008
10/17/2008
10/17/2008 10/17/2008 10/17/2008 11/03/2008 11/13/2008 11/24/2008 12/03/2008 01/05/2009 05/11/2009 05/27/2009 06/01/2009 06/03/2009 09/14/2009 09/16/2009
09/17/2009
09/18/2009
09/23/2009
09/28/2009

234 Minute Entry for proceedings held before Judge David N. Hurd: Telephone Conference held on 9/23/2008. (Court Reporter None) (cmr, ) (Entered: 09/24/2008)
235 SETTLEMENT AGREEMENT by Sunny Schriver, Michael Maher, Glenn S. Goord, Martha E. Yourth, Dominic Martinelli, S. Carter. (Attachments: # 1 Supplement Proposed Order, # 2 Declaration of Service)(Goglia, Douglas) (Entered: 10/03/2008)
236 Copies of correspondence between clerk's office and Joseph Garcia, 88−T−1469 (member case 9:04−cv−1117) from February 2008, in which Mr. Garcia advises that he is the wrong Joseph Garcia and knows nothing about this case. (cbm ) (Entered: 10/16/2008)
237 ORDER that the private 235 Settlement Agreement dtd 10/3/2008, is APPROVED; Jurisdiction is retained over any issues that may arise regarding compliance w/the Private Settlement Agreement; &otherwise this Class Action is DISMISSED. The Clerk is directed to enter judgment accordingly. Signed by Judge David N. Hurd on 10/17/2008. (see) (Entered: 10/17/2008)
238 JUDGMENT approving the Private Settlement Agreement, pursuant to the 237 Order of the Honorable David N. Hurd. (see) (Entered: 10/17/2008)
Clerk mailed copies of the 237 Order and 238 Judgment to David Donhauser on 10/17/2008 by regular mail. (see) (Entered: 10/17/2008)
239 Settlement Agreement &ORDER approving private settlement agreement.Signed by Judge David N. Hurd on 10/17/2008. (see) (Entered: 10/17/2008)
240 ***SEALED DOCUMENT/Inmate letter. (see) (Entered: 11/03/2008)
241 ***SEALED DOCUMENT/Inmate letter. (see) (Entered: 11/14/2008)
242 ***SEALED DOCUMENT/Inmate Letter. (see) (Entered: 11/25/2008)
243 ***SEALED DOCUMENTInmate letter dtd 11/12/2008. (see) (Entered: 12/04/2008)
244 ***SEALED DOCUMENT/Inmate letter. (see) (Entered: 01/05/2009)
245 ***SEALED Inmate letter dated 5/6/2009. (see) (Entered: 05/12/2009)
246 ***SEALED Inmate letter. (see) (see, ). (Entered: 05/27/2009)
247 ***SEALED Response to the 245 letter from Department of Correctional Services. (see) (see, ). (Entered: 06/01/2009)
248 ***SEALED reply to AAG Goglia's 247 response to 246 letter from inmate. (cbm ) (cbm, ). (Entered: 06/04/2009)
249 ***SEALED DOCUMENT/Inmate letter. (see) (see, ). (Entered: 09/15/2009)
250 MOTION to Reopen Case filed by Anibal Ortiz Jr. (Attachments: # 1 motion, # 2 Affidavit, # 3 affidavit of service, # 4 cover letter and enveloope) (nas) (Entered: 09/17/2009)
TEXT NOTICE of Hearing on 250 MOTION to Reopen Case : ON SUBMISSION ONLY before Judge David N. Hurd opn 10/23/09. Response to Motion due by 10/6/2009 Reply to Response to Motion due by 10/13/2009. {notice served via regular mail on all non−ecf parties} (Entered: 09/17/2009)
251 RESPONSE to Motion re 250 MOTION to Reopen Case filed by Sunny Schriver, Michael Maher, Glenn S. Goord, Martha E. Yourth, Dominic Martinelli, S. Carter. (Attachments: # 1 Declaration of Service)(Goglia, Douglas) (Entered: 09/18/2009)
252 Mail Returned as Undeliverable. re: Notice of Hearing on Motion, sent to Lamberty Address sent to Cape Vincent Correctional Facility (nas ) (Entered: 09/23/2009)
253 REPLY to Response to Motion re 250 MOTION to Reopen Case by Ortiz. (nas, ) (Entered: 09/28/2009)

Case: 9:01-cv-1535 As of: 09/22/2012 11:26 AM EDT 21 of 21

09/30/2009 10/02/2009
10/27/2009 10/27/2009
11/04/2009 11/04/2009
01/06/2010 01/11/2010 01/19/2010 09/27/2010 09/28/2010 10/12/2010

254 Letter from Steven Lashway. (nas) (Entered: 09/30/2009)
255 NOTICE by pltf's atty Robert N. Isseks of Change of Address for pltf Donhauser, Effective Date 9/30/09. Old Address: Great Meadow Correctional Facility New Address: Franklin Correctional Facility, P.O. Box 10, Malone, NY 12953 (tab) (Entered: 10/02/2009)
257 ORDER denying 250 Motion to Reopen Case without prejudice.Signed by Judge David N. Hurd on 10/26/2009. (see) (Entered: 10/27/2009)
Copies of the 257 Order were mailed to Anibal Ortiz, Jr., and David Donhauser at Franklin Correctional Facility on 10/27/2009 by regular mail. According to the DOCS website, Mr. Donhauser is located at Franklin Correctional Facility. (see) (Entered: 10/27/2009)
258 MOTION for Reconsideration by Ortiz of 257 Order on Motion to Reopen Case. (nas) (Entered: 11/04/2009)
259 RESPONSE in Opposition re 258 MOTION for Reconsideration re 257 Order on Motion to Reopen Case filed by Sunny Schriver, Michael Maher, Glenn S. Goord, Martha E. Yourth, Dominic Martinelli, S. Carter. (Attachments: # 1 Declaration of Service)(Goglia, Douglas) (Entered: 11/04/2009)
260 Letter from Steven Lashway requesting counsel. (Attachments: # 1 envelope)(nas) (Entered: 01/06/2010)
261 Letter from Rojas. (Attachments: # 1 envelope)(nas, ) (Entered: 01/12/2010)
262 ***SEALED Inmate Letter. (see) (see, ). (Entered: 01/19/2010)
263 Clerk's response to Steven Lashway's 260 letter to the court. (cbm ) (Entered: 09/27/2010)
264 ORDER denying Anibal Ortiz's 258 Motion for Reconsideration. Signed by Judge David N. Hurd on 9/27/10. (cbm ) (Entered: 09/28/2010)
265 Mail Returned as Undeliverable (Inmate Released − No Forwarding Address). Re: Service of the 264 Order on Motion for Reconsideration sent to Anibal Ortiz Address sent to Mohawk Correctional Facility, 6100 School Road, P.O. Box 8451, Rome, NY 13442. (see) (Entered: 10/20/2010)