10-2563

Bailey v. Pataki

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 August Term, 2011

4 (Argued: October 31, 2011 Decided: February 14, 2013)

5 Docket No. 10-2563

6 -------------------------------------

7 Kenneth Bailey,

8 Plaintiff - Appellee,

9 Robert Trocchio, Jorge Burgos, Jr., Louis Massei, Robert Warren,

10 Charles Brooks,

11 Consolidated Plaintiffs - Appellees,

12 v.

13 George Pataki, former Governor of New York State, Eileen

14 Consilvio, former Executive Director, Manhattan Psychiatric

15 Center and Kirby Forensic Psychiatric Center, John Doe, # 1,

16 Commissioner of the New York State Department of Corrections,

17 John Doe, # 2, Commissioner of the New York State Office of

18 Mental Health, John Doe, # 3, Superintendent of Wyoming

19 Correctional Facility, John Doe, # 4, Superintendent of Attica

20 Correctional Facility, John Doe, # 5, Superintendent of the

21 Downstate Correctional Facility, John Doe, # 6 through 20,

22 medical personnel who examined and evaluated plaintiff pursuant

23 to New York State Mental Hygiene Law Article 9, Glenn S. Goord,

24 Sharon Carpinello, Michael Giambruno, James Conway, Paul Annetts,

25 Emilia Rutigliano, Prabhakar Gumbula, Allan Wells,

26 Defendants - Appellants,

27 Jonathan Kaplan, Olusegun Bello, Mary Ann Ross, Ayodeji Somefun,

28 Michal Kunz, William Powers, Lee E. Payant, Lawrence Farago, Luis

29 Hernandez, Samuel Langer, Robert Dennison, Former Chairman of the

30 New York State Board of Parole and Chief Executive Officer of the

31 New York State Division of Parole, Jeffrey Tedford, Former Deputy

32 Superintendent of Security at Clinton Correctional Facility,

33 William J. Sackett, Facility Senior Parole Officer, Clinton

34 Correctional Facility, Jean Liu, psychiatrist who evaluated

35 plaintiff for possible civil commitment, Abadul Qayyum, Charles
1 Chung, Dale Artus, Former Superintendent of Clinton Correctional

2 Facility,

3 Consolidated Defendants - Appellants.

4 -------------------------------------

5 Before: McLAUGHLIN, SACK, and HALL, Circuit Judges.

6 This is an appeal from an order of the United States

7 District Court for the Southern District of New York (Jed S.

8 Rakoff, Judge) denying the defendants' motion for summary

9 judgment. The defendants argue that they are entitled to

10 qualified immunity on the plaintiffs' 42 U.S.C. § 1983 procedural

11 due process claims because the procedures employed in the course

12 of civil commitment proceedings against the plaintiffs complied

13 with due process requirements, and because, even if they did not,

14 a reasonable person in the defendants' position would not have

15 known that he was violating the plaintiffs' constitutional

16 rights. We conclude that the district court properly denied the

17 defendants' motion for summary judgment. There is sufficient

18 evidence which, when viewed in the light most favorable to the

19 plaintiffs, supports their claim that they were denied their

20 right to procedural due process before being civilly committed. 

21 We also agree with the district court that a reasonable official

22 in the defendants' position would have known that the process by

23 which the plaintiffs were committed did not satisfy basic

24 constitutional requirements and that the defendants are therefore

25 not entitled to qualified immunity.

26 Affirmed.

27

2
1 AMEER BENNO, Benno & Associates, New

2 York, NY, (Richard Sullivan, Jeffrey

3 Rothman, on the brief), for Plaintiffs4 Appellees.

5

6 CECELIA C. CHANG, Assistant Solicitor

7 General, (Barbara D. Underwood,

8 Solicitor General, Benjamin N. Gutman,

9 Deputy Solicitor General, on the brief),

10 for Andrew M. Cuomo, Attorney General of

11 the State of New York, New York, NY, for

12 Defendants-Appellants.

13 SACK, Circuit Judge: 

14 This appeal requires us to decide whether the civil

15 commitment of the plaintiffs following the expiration of their

16 sentences for sexually based criminal offenses constituted

17 violations of their procedural due process rights redressable

18 under 42 U.S.C. § 1983, and, if so, whether the defendants are

19 nonetheless entitled on the record before the district court to

20 summary judgment dismissing the procedural due process claims on

21 the grounds of qualified immunity. 

22 The plaintiffs' commitments were effected not through

23 the state's normal civil commitment procedures, but by means of

24 an executive-branch effort aimed at preventing the release of

25 some "sexually violent predators" ("SVPs"). The Governor of New

26 York State at the time, Governor George E. Pataki, directed the

27 State's Office of Mental Health ("OMH") and Department of

28 Correctional Services ("DOCS") to develop a plan whereby he could

29 take executive action to implement an initiative (the "SVP

3
1 Initiative" or the "Initiative") that would result in the

2 involuntary commitment of selected SVPs to state psychiatric

3 facilities after the expiration of their criminal sentences. The

4 plaintiffs, who were committed pursuant to this initiative,

5 assert a variety of claims against Governor Pataki and officials

6 of OMH and DOCS.

7 In this appeal, the defendants assert that the district

8 court erred when it denied their motion for summary judgment on

9 the plaintiffs' procedural due process claims, concluding that

10 the defendants are not entitled to qualified immunity. The

11 plaintiffs' claims for denial of procedural due process are

12 premised on the allegation that they were committed pursuant to

13 the SVP Initiative without the benefit of notice or an

14 opportunity for a hearing prior to their commitment. 

15 We agree with the district court that there is

16 sufficient evidence in the record to support the plaintiffs'

17 procedural due process claims and therefore defeat the motion for

18 summary judgment. We also conclude that at the time of the

19 Initiative, the constitutional principle that, absent some

20 emergency or other exigent circumstance, an individual cannot be

21 involuntarily committed to a psychiatric institution without

22 notice and a predeprivation hearing was firmly established. 

23 Because the law pertaining to the involuntary civil commitment of

24 prisoners was firmly established, the district court properly

25 determined that the defendants should not enjoy qualified

26 immunity.

4
1 BACKGROUND

2 The SVP Initiative

3 In June 2005, a recently-paroled sex offender murdered

4 a woman in the parking lot of the Galleria Mall in White Plains,

5 New York. Governor Pataki had previously attempted to enact

6 legislation providing additional avenues for the commitment of

dangerous sex offenders,1 7 but after the murder, "momentum to do

8 something around [sic.] dangerous sex offenders increased,"

9 according to associate director of OMH's Forensic Services

10 Division, Richard Miraglia, who participated in the creation and

11 implementation of the SVP Initiative. Dep. of Richard Miraglia,

12 Nov. 24, 2009 ("Miraglia Dep."), at 62; Joint App'x at 147. In

13 an October 2005 press release, Governor Pataki's office explained

14 that during this time period he "directed that every sexually

15 violent predator (SVP) in State custody be evaluated for

16 involuntary civil commitment before being released from prison. 

17 He directed [OMH] and [DOCS] to push the envelope of the State's

18 existing involuntary commitment law because he couldn't wait any

19 longer for the Assembly Leadership to bring his legislation to

1 Beginning in 1998, shortly before the end of his first

term in office, Governor Pataki tried to convince the New York

State legislature to pass sex offender civil commitment

legislation, but, he said in a televised interview, the state

Assembly leadership would not permit a floor vote. Tr. of

Interview of George E. Pataki by Bill O'Reilly, FOXNews.com, Nov.

18, 2005; Joint App'x at 274. Those opposing the measure, the

Governor said, were making "the same old argument. There are

those who would rather have 50 sexual predators out on the street

than one who they believe might have been wrongfully confined." 

Tr. of Interview of George E. Pataki by Glenn Beck, July 16,

2007; Joint App'x at 590. 

5
1 the floor for a vote." Press Release, N.Y. State Executive

2 Chamber, Governor: U.S. Dep’t of Justice Adds N.Y. to Nat’l Sex

3 Offender Public Registry Web Site (Oct. 24, 2005); Joint App'x at

4 215. 

5 In order to put the governor's policy into effect, OMH

6 officials began engaging in daily discussions about how to

7 implement a civil commitment initiative. Miraglia testified that

8 the "general tenor" of these meetings reflected "concern about

9 dangerous repeat sex offenders being released to the community"

10 and "some frustration about legislative inaction." Miraglia Dep.

11 at 48; Joint App'x at 136. Discussions eventually centered on

12 using either Correction Law § 402 or Mental Hygiene Law § 9.27

13 for this purpose. The two statutes are substantially different. 

14 Section 9.27 of the Mental Hygiene Law ("MHL"),

15 codified in Article 9 of the MHL and entitled "Involuntary

16 admission on medical certification," allows the director of a

17 hospital to accept any patient "alleged to be mentally ill and in

18 need of involuntary care and treatment upon the certificates of

19 two examining physicians." MHL § 9.27(a). The director must

20 also receive a sworn application explaining why the patient needs

21 mental health treatment. Id. After the patient arrives at the

22 hospital, a member of the hospital's psychiatric staff is

23 required to examine him and confirm that he should be admitted. 

24 MHL § 9.27(e). The law requires that the nearest relative of the

25 patient, or any other person the patient has designated, be given

26 notice of the involuntary admission within five days of

6
1 admission. MHL § 9.29(b). Within sixty days of admission, the

2 patient or a friend or relative can request a hearing on the

3 involuntary admission, which is required to be held within five

4 days of receipt by the hospital director of notice of the

5 request. MHL § 9.31(a). If no hearing has been held or court

6 order issued, or if the patient does not consent to the

7 admission, the hospital director is required to seek a court

8 order within sixty days of the patient's involuntary admission if

9 the director wishes to pursue the matter. MHL § 9.33(a).

10 Correction Law § 402 is entitled "Commitment of

11 mentally ill inmates." Under that law, if a staff physician at a

12 prison informs the prison superintendent that an inmate is

13 mentally ill, the superintendent asks a "judge of the county

14 court or justice of the supreme court in the county" to appoint

15 two physicians to examine the inmate. Correction Law § 402(1). 

16 If both physicians conclude that hospitalization is appropriate,

17 they must produce certificates to that effect. Id. The

18 superintendent is then required to apply to the court for a

19 commitment order, and personally serve notice on the inmate and

20 his or her closest relative or, if relatives are unknown or not

21 within the state, "any known friend," five days prior to the

22 commitment. Correction Law § 402(3). The Mental Hygiene Legal

23 Services must then inform the inmate (or, in appropriate cases,

24 others concerned with the inmate's welfare) of "the procedures

25 for placement in a hospital and of the inmate's right to have a

26 hearing, to have judicial review with a right to a jury trial, to

7
1 be represented by counsel and to seek an independent medical

2 opinion." Id. The inmate is entitled to request a hearing

3 before a judge prior to any transfer to a psychiatric hospital. 

4 Correction Law § 402(5). The procedural protections in section

5 402 may only be bypassed where admission to a hospital is sought

6 on an emergency basis. Correction Law § 402(9).

7 The state officials dealing with the matter ultimately

8 decided that MHL § 9.27 would be the appropriate law through

9 which to implement the SVP Initiative. The parties disagree as

10 to whether MHL § 9.27 had previously been utilized for the civil

11 commitment of inmates. Scott Clair, who worked for OMH at Attica

12 Correctional Facility between 1976 and 2005, testified that use

13 of Correction Law § 402 was standard procedure for the civil

14 commitment of prisoners, and that he was unfamiliar with MHL §

15 9.27. Dep. of Scott Clair, January 14, 2010 ("Clair Dep."), at

16 43-44; Joint App'x at 1200-01. Hal Smith, who served as

17 executive director of the Central New York Psychiatric Center, an

18 OMH facility, similarly testified that prior to the SVP

19 Initiative, inmates were transferred from DOCS to OMH facilities

20 pursuant to the Correction Law, not the Mental Hygiene Law. Dep.

21 of Hal E. Smith, November 11, 2009 ("Smith Dep."), at 162-63,

22 166, 169; Joint App'x at 1256-59. In a related state court

23 proceeding, the state Attorney General represented that MHL

24 § 9.27 had been used five times between 2003 and 2005 to civilly

25 commit prisoners. State ex rel. Harkavy v. Consilvio, 10 Misc.

26 3d. 851, 856, 809 N.Y.S.2d 836, 839-40 (Sup. Ct. 2005), rev'd, 29

8
1 A.D.3d 221, 812 N.Y.S.2d 496 (1st Dep't), rev'd, 7 N.Y.3d 607,

2 859 N.E.2d 508, 825 N.Y.S.2d 702 (2006). 

3 Sharon Carpinello, Commissioner of the OMH, presented

4 the proposed SVP Initiative, utilizing MHL § 9.27, to Governor

5 Pataki. The proposal called for a pool of SVPs to be identified

6 based on upcoming release dates. The pool of inmates was drawn

7 from those who had committed a violent offense as defined by New

8 York Penal Law § 70.02, and a sex offense as defined by Penal Law

9 § 130, as well as from another list of inmates who had committed

10 felonies involving some sexual motivation. According to Dawne

11 Amsler, Associate Director of OMH's Bureau of Forensic Research,

12 this constituted a departure from prior practice. Previously,

13 MHL § 9.27 applied to "individuals who have a mental illness that

14 makes them dangerous to themselves or others," and inmates who

15 did not fit that criteria were evaluated prior to their release

16 pursuant only to Correction Law § 402. Dep. of Dawne Amsler,

17 Nov. 10, 2009 ("Amsler Dep."), at 21, 27; Joint App'x at 502-03. 

18 Amsler testified that "individuals who were already on the mental

19 health caseload at OMH and receiving fairly intensive services

20 were evaluated at the end of their [sentences] regardless of the

21 crime they committed and perhaps committed if deemed necessary. 

22 This changed [after implementation of the Initiative] in that all

23 sex offenders regardless of whether or not they were on caseloads

24 were evaluated." Id. at 36; Joint App'x at 506. 

25 Under the Initiative, the identified inmates would be

26 subject to a review of their criminal histories, and then to an

9
1 examination by two physicians, who would determine whether they

2 posed a risk to the public, or suffered from a mental illness,

3 and therefore needed inpatient care and treatment. If the

4 physicians recommended civil commitment, the inmate would be

5 transferred to a psychiatric center and examined by a

6 psychiatrist to confirm the diagnosis. Once admitted to the

7 facility, the inmate would begin undergoing a specialized course

8 of treatment.

9 Implementation of the Initiative began almost

10 immediately. Under Defendant Glenn Goord's direction, DOCS

11 identified SVPs scheduled for release and made the presentence

12 reports for those inmates available to OMH. OMH then compiled

13 relevant information on the inmates, including their "OMH level,"

14 which did not include a specific diagnosis, and a description of

15 the offense of conviction. Between September 2005 and January

16 2006, Amsler personally compiled the information about the

17 identified inmates and provided that information to OMH

18 personnel. She completed two documents for each inmate, a

19 "FPMS/DMHIS" overview and a "Static 99" evaluation. Pls.'

20 Statement of Uncontested Material Facts Pursuant to Local Rule

56.1, at ¶ 85; Joint App'x 87, citing Amsler Dep.2 21

22 Every inmate identified by DOCS as a potential SVP was

23 evaluated for civil commitment by OMH. Any inmate who refused to

24 submit to the evaluation was subject to disciplinary action and

2 Amsler did not know what the initials "FPMS" stood for. 

Amsler Dep. at 122; Joint App'x at 546.

10
1 refusal could have constituted a parole violation. The DOCS

2 Superintendent then applied for the civil commitment of SVP

3 inmates who had been deemed to meet the criteria for civil

4 commitment and had been examined by two physicians who had so

5 certified. The inmates received no advance notice that they

6 would be transferred or subject to a civil commitment evaluation.

7 While the procedures for commitment used in the SVP

8 Initiative tracked MHL § 9.27, the standard for commitment was

9 different from that ordinarily used under the provision, which

10 caused concern among those charged with implementing the

Initiative.3 11 Miraglia testified that officials had only days to

12 develop the techniques for assessing whether SVPs qualified for

13 commitment under the Initiative. "[T]he sex offender assessment

14 is a specialty . . . that heretofore [had] not been within the

15 OMH menu of services. . . . So we needed to develop that

16 capacity to understand what . . . assessment techniques would be

17 required to identify those at highest risk for sexual

18 recidivism." Miraglia Dep. at 69; Joint App'x at 154. 

19 One person involved with the Initiative wrote in an e20 mail under a heading "Operational Concerns and Challenges," that

3 The standard itself is not at issue in this appeal. 

The plaintiffs' substantive due process claim challenging whether

the standard for commitment utilized was appropriate is not

before us. See Bailey v. Pataki, No. 08 Civ. 8563, 2010 WL

4237071, at *4, 2010 U.S. Dist. LEXIS 113766, at *13 (S.D.N.Y.

Oct. 26, 2010)(denying defendants' motion for summary judgment on

the substantive due process claims). The uncertainty regarding

the standard used is nevertheless relevant to the procedural due

process analysis because it compounds the risk of an erroneous

deprivation of a liberty interest. 

11
1 "[e]xpertise in the treatment of sexual offenders is not widely

2 available among current OMH staff, and the majority of clinicians

3 have not had any experience with this population. Training

4 clinicians who are unfamiliar with the sexual offender population

5 to apply civil commitment criteria to these individuals may be

6 difficult." Email from Robyn Katz to Carpinello, Miraglia et al.

7 (July 29, 2005, 6:25 p.m.); Joint App'x at 593. Scott Clair, a

8 Forensic Unit Chief of the mental health unit at Attica,

9 explained that the "criteria" utilized to evaluate the inmates

10 identified as SVPs was "dangerousness to self or others." Clair

11 Dep. at 46; Joint App'x at 1203. Correction Law § 402 used the

12 same criteria, but, Clair testified, "[i]nmates that went on 402

13 were clinically decompensated to the point where they were

14 dangerous to self or others at that exact time," while those

15 under the SVP Initiative were evaluated "based on dangerousness

16 to the community based on the risk assessment and their

17 diagnosis." Id. at 47; Joint App'x 1204. 

18 Another OMH physician explained that she was "asked to

19 make a prediction of the risk of possible recidivism to keep the

20 community safe," whereas the Article 9 standard, by contrast, "is

21 based on if the individual is harmful to himself and others and

22 that if this is deemed the case then the certification is good

23 for a period of 72 hours." Dep. of Mary Ann Ross, Sept. 24,

24 2009, at 437-39; Joint App'x at 1671-73. 

25 The SVP Initiative's evaluation was based in part on

26 the Static 99 form, which estimated an inmate's risk of future

12
1 recidivism in five, ten, and fifteen years, and which had not

2 previously been used in the State's civil commitment process. 

3 When the Initiative began, most of the OMH physicians did not

4 have any experience using the Static 99 form, and some were "not

5 comfortable" using it. Smith Dep. at 157; Joint App'x at 1255. 

6 The Plaintiffs' Commitment

7 Plaintiff Kenneth Bailey was among the first to be

8 evaluated pursuant to the new Initiative. He and the other

9 plaintiffs contend that had it not been for its implementation,

10 they would not have been evaluated for civil commitment at all. 

11 Bailey had been convicted multiple times for sexual abuse of

12 children and has admitted to molesting twenty-three girls. His

13 most recent conviction stemmed from the repeated sexual abuse of

14 his daughter for which, in 1994, he was convicted and sentenced

15 to six to twelve years imprisonment. Some eleven years later, on

16 September 28, 2005 -- less than two weeks before he was scheduled

17 for release -- Bailey was transferred from Wyoming Correctional

18 Facility to Attica Correctional Facility. Three days before his

19 scheduled release, two OMH physicians evaluated Bailey for

20 involuntary civil commitment pursuant to the Initiative. Both

21 physicians produced written certificates stating that Bailey

22 qualified for civil commitment.

23 When Bailey's sentence expired, the Superintendent of

24 Attica applied for Bailey's involuntary commitment and DOCS

25 transported Bailey to the Manhattan Psychiatric Center ("MPC")

26 the same day. Bailey did not request a hearing following his

13
1 commitment because he apparently thought he would be at MPC for

2 only a few weeks or months. He contends that he was not aware

3 that he was a psychiatric patient there. The commitment

4 proceedings for the other plaintiffs in this action followed

5 similar patterns. See Bailey v. Pataki, 722 F. Supp. 2d 443,

6 448-49 (S.D.N.Y. 2010). 

7 The plaintiffs petitioned for habeas corpus relief in

8 state court, arguing that the use of MHL § 9.27, rather than

9 Correction Law § 402, to civilly commit them was illegal. State

10 ex rel. Harkavy v. Consilvio, 7 N.Y.3d 607, 859 N.E.2d 508, 825

11 N.Y.S.2d 702 (2006). In Harkavy, the New York Court of Appeals

12 commented: "[W]e understand how in an attempt to protect the

13 community from violent sexual predators, the State proceeded

14 under the Mental Hygiene Law." The court concluded, however,

15 that "because inmates who are incarcerated do not pose an

16 immediate threat to the community, there should be ample time to

17 proceed under the Correction Law." Id. at 614. The court

18 ordered that each civilly committed individual be provided "an

19 immediate retention hearing pursuant to article 9," and directed

20 that future proceedings against inmates proceed under Correction

21 Law § 402 "with all its attendant procedural requirements

22 including court supervision, pretransfer notice and an

23 opportunity to be heard within a reasonable period of time prior

24 to the inmate's proposed release date." Id. The court did not

25 decide on the constitutionality of applying Article 9 to

26 prisoners. In a concurrence by Judge Robert S. Smith, however,

14
1 he cautioned that it "would raise serious constitutional

2 problems" because "Petitioners had all been in prison for years

3 before the State sought to commit them civilly. No sudden,

4 unforseen emergency required their confinement in a mental

5 hospital." Id. at 615. 

6 The District Court Opinion

7 In October 2008, the plaintiffs filed this action

8 alleging claims under 42 U.S.C. § 1983 for violations of their

9 Fourteenth Amendment rights to procedural and substantive due

10 process and to equal protection, and their Fourth Amendment right

11 against unreasonable seizure, under 42 U.S.C. § 1985(3) for

12 conspiracy, and under various provisions of New York State law. 

13 On March 31, 2010, both sides moved for summary judgment. The

14 district court (Jed S. Rakoff, Judge) denied the plaintiffs'

15 motion for summary judgment in full, and granted in part and

denied in part the defendants' motion for summary judgment.4 16

17 Relevant to this appeal, the district court rejected the

18 defendants' argument that they are entitled to qualified immunity

19 on the plaintiffs' procedural due process claim. 

20 In its opinion, the district court first addressed

21 whether the plaintiffs had made out a procedural due process

22 claim for their "involuntar[y] commit[ment] to civil confinement

23 without advance written notice, an evaluation by court-appointed

4 The district court entered a separate opinion detailing

its decision on all issues other than qualified immunity. See

Bailey, 2010 WL 4237071, at *1, 2010 U.S. Dist. LEXIS 113766, at

*3-*4 (explaining the different opinions and orders issued). 

15
1 physicians, and . . . a predeprivation judicial hearing." 

2 Bailey, 722 F. Supp. 2d at 447. The court explained that a

3 confined prisoner "presents no immediate danger to the community,

4 [therefore] full due process must be accorded before he can be

5 transferred, upon completion of his sentence, to involuntary

6 civil commitment." Id. at 447-48. Relying on Vitek v. Jones,

7 445 U.S. 480 (1980), the court determined that such process must

8 include notice and "a predeprivation adversary hearing . . . at

9 which the prisoner can see the evidence for the commitment and be

10 given an opportunity to be heard in person, as well as present

11 testimony and engage in cross-examination of the state's

12 witnesses." Bailey, 722 F. Supp. 2d at 448.

13 The district court then examined whether the process it

14 had determined was constitutionally required had been afforded to

15 the plaintiffs in this case. It concluded that the "plaintiffs'

16 civil confinement did not remotely comport with constitutional

17 requirements." Id. at 449. 

18 Having thus decided that, viewed in the light most

19 favorable to the plaintiffs, the evidence supported the due

20 process claims, the district court then considered whether the

21 defendants were entitled to qualified immunity because the right

22 at issue was not "clearly established" when the Initiative was

23 implemented. The court determined that it was clearly

24 established at the relevant time that in the absence of any

25 "immediate danger to society," a predeprivation hearing was

26 required before civilly committing an individual and that this

16
1 requirement was "so obvious that no reasonable defendant official

2 could have failed to miss it." Id. at 450-51. 

3 The district court emphasized that Correction Law

4 § 402, which specifically dealt with commitment of inmates,

5 required a predeprivation hearing. Id. at 451. The court noted,

6 finally, that:

7 [I]t is not irrelevant that the plaintiffs

8 here have advanced competent evidence from

9 which a jury could conclude that the decision

10 to deprive SVP detainees of a predeprivation

11 hearing by replacing the procedures of

12 directly applicable Correction Law § 402 with

13 those of seemingly inapplicable MHL § 9.27

14 was a deliberate decision taken for political

15 reasons. To deprive plaintiffs of their

16 constitutional rights for political gain can

17 never be reasonable.

18 Id. at 451-52.

19 The defendants appeal.

20 DISCUSSION

21 We review de novo a district court's denial of summary

22 judgment on qualified immunity grounds, and construe all evidence

23 and draw all reasonable inferences in the non-moving party's

24 favor. Amore v. Novarro, 624 F.3d 522, 529 (2d Cir. 2010). 

25 Summary judgment is appropriate where "there is no genuine

26 dispute as to any material fact and the movant is entitled to

27 judgment as a matter of law." FED. R. CIV. P. 56(a). 

28 I. Procedural Due Process Claim

29 The plaintiffs allege that they were denied their

30 Fourteenth Amendment right to procedural due process when they

31 were committed to a psychiatric institution without the benefit

17
1 of notice, psychiatric examination by court-appointed physicians,

2 or a judicial hearing prior to their commitment. In order to

3 state a claim under 42 U.S.C. § 1983 for denial of procedural due

4 process in the context of this litigation, the plaintiffs are

5 required to demonstrate that they have a protected liberty

6 interest in not being involuntarily committed to a psychiatric

7 institution and that they were deprived of that interest without

8 due process of law. See Tellier v. Fields, 280 F.3d 69, 79-80

9 (2d Cir. 2000). 

10 On appeal, the defendants urge that the district court

11 erred in reading Vitek v. Jones, 445 U.S. 480 (1980), as

12 mandating especially stringent due process procedures for

13 prisoners, arguing that while notice and a hearing are generally

14 required, nothing in Vitek prohibits brief periods of prehearing

15 commitment if a timely hearing is later offered. The defendants

16 insist that courts have upheld identical prehearing commitments

17 of prisoners that the district court concluded did not satisfy

18 due process here, and that in any event the procedures employed

19 did indeed comply with due process requirements. The district

20 court looked to the Supreme Court's decision in Vitek in

21 determining what procedural protections are required before an

22 inmate can be civilly committed without his consent consistent

23 with due process standards. Bailey, 722 F. Supp. 2d at 447-48. 

24 The court read Vitek to require notice, a predeprivation

25 adversarial hearing, and a written statement by the decision

18
1 maker disclosing the reasons for the inmate's commitment. Id. at

2 448. 

3 Vitek addressed an as-applied challenge to the

4 constitutionality of a Nebraska statute that provided for the

5 transfer of an inmate to a psychiatric facility at the direction

6 of the State's Director of Correctional Services if a

7 psychologist or psychiatrist concluded that the prisoner

8 "'suffers from a mental disease or defect'" that the prisoner's

9 current facility could not properly treat. Vitek, 445 U.S. at

10 483. Such a transfer remained valid until the expiration of the

11 prisoner's sentence, at which point civil commitment proceedings

12 were required prior to continued confinement. Id. at 483-84. 

13 The plaintiff in Vitek was an inmate who had been

14 transferred to a psychiatric facility after setting his mattress

15 on fire while in solitary confinement. Id. at 484. The Vitek

16 Court considered whether the transfer of a prisoner to a state

17 mental hospital implicated a liberty interest triggering due

18 process protection, and concluded that the plaintiff's "objective

19 expectation" based on state law and practice that he would not be

20 transferred to a mental hospital if his condition could be

21 treated in prison did create a liberty interest requiring

22 "appropriate procedures" prior to its deprivation. Id. at 489-

23 90. The Court emphasized the "stigmatizing consequences of a

24 transfer to a mental hospital" and the "mandatory behavior

25 modification" treatment the prisoner would undergo once at that

26 hospital. Id. at 494. 

19
1 The district court in Vitek identified seven safeguards

2 it concluded were required to protect the plaintiff's liberty

3 interest. Among them were pretransfer notice to the prisoner, a

4 pretransfer hearing at which the prisoner could present and

5 cross-examine witnesses, and the right to counsel. See id. at

6 494-95. 

7 In considering these requirements, the Supreme Court

8 explained that while the State has a substantial interest in

9 "segregating and treating mentally ill patients," "[t]he interest

10 of the prisoner in not being arbitrarily classified as mentally

11 ill and subjected to unwelcome treatment is also powerful," and

12 the "risk of error . . . is substantial enough to warrant

13 appropriate procedural safeguards against error." Id. at 495. 

14 The Court acknowledged that the inquiry into whether a prisoner

15 should be placed in a psychiatric facility is "essentially

16 medical," but concluded that "[t]he medical nature of the

17 inquiry . . . does not justify dispensing with due process

18 requirements. It is precisely the subtleties and nuances of

19 psychiatric diagnoses that justify the requirement of adversary

20 hearings." Id. (quotation marks and citation omitted). The

21 Court concluded that the procedures prescribed by the district

22 court were "appropriate in the circumstances present . . . ." 

Id. at 496.5 23

5 The requirement of legal counsel was endorsed by only a

plurality of the court. Justice Powell wrote in a concurrence

that although "qualified and independent assistance" must be

provided, it need not take the form of a "licensed attorney." 

Vitek, 445 U.S. at 497 (Powell, J., concurring). 

20
1 Vitek is plainly relevant to this case. It confirms

2 the plaintiffs' contention that a prisoner has a liberty interest

3 in the essential nature of his confinement, and that this

4 interest must be safeguarded with appropriate procedures. But it

5 does not automatically follow from the Vitek Court's endorsement

6 of the procedures mandated by the district court in that case

7 that the same process is required in every case. See id.

8 (concluding that the procedures set forth by the district court

9 were "appropriate in the circumstances present here." (emphasis

10 added)). The Court's acknowledgment that it is "precisely the

11 subtleties and nuances of psychiatric diagnoses that justify the

12 requirement of adversary hearings," id. at 495, similarly stops

13 short of identifying the circumstances in which an adversary

14 hearing must be held or what that hearing should entail. 

15 Indeed, the facts and legal posture of Vitek differ

16 significantly from those before us. The plaintiff in Vitek faced

17 confinement in a psychiatric institution for the duration of his

18 prison sentence based on the opinion of a single doctor, with no

19 opportunity for an additional hearing. The procedures at issue

20 in Vitek, therefore, provided fewer safeguards than were offered

21 to the plaintiffs here. And because the Vitek Court never

22 discussed whether the availability of a postdeprivation hearing

23 negates the need for a predeprivation hearing, its applicability

24 to this case is limited.

25 The Supreme Court's decision in Zinermon v. Burch, 494

26 U.S. 113 (1990), however, does offer guidance as to when a

21
1 postdeprivation hearing would survive constitutional scrutiny. 

2 There, the Court considered the case of a patient admitted to a

3 state mental health hospital after completing voluntary admission

4 forms. The patient later alleged that he was a paranoid

5 schizophrenic and had been unable to give informed consent to his

6 admission. The defendants, he asserted, should have afforded him

7 the procedural safeguards required for involuntary commitment,

8 including a hearing. Id. at 123-24. 

9 Quoting Mathews v. Eldrige, 424 U.S. 319, 335 (1976),

10 the Court described the factors to be considered in determining

11 what procedural protections are necessary in a particular case: 

12 "First, the private interest that will be

13 affected by the official action; second, the

14 risk of an erroneous deprivation of such

15 interest through the procedures used, and the

16 probable value, if any, of additional or

17 substitute procedural safeguards; and

18 finally, the Government's interest, including

19 the function involved and the fiscal and

20 administrative burdens that the additional or

21 substitute procedural requirement would

22 entail." 

23 Zinermon, 494 U.S. at 127.

24 The Zinermon Court observed that, applying the Mathews

25 test, it "usually has held that the Constitution requires some

26 kind of hearing before the State deprives a person of liberty or

27 property." Id. (emphasis in original). But, the Court

28 continued, a postdeprivation hearing might satisfy due process

29 where a predeprivation hearing is "unduly burdensome in

30 proportion to the liberty interest at stake" or "where the State

31 is truly unable to anticipate and prevent a random deprivation of

22
1 a liberty interest." Id. at 132. "[W]here the State feasibly

2 can provide a predeprivation hearing," however, "it generally

3 must do so regardless of the adequacy of a postdeprivation . . .

4 remedy." Id. 

5 The Court concluded that the defendants could be liable

6 to the plaintiff under his section 1983 claim for deprivation of

7 his procedural due process rights because it was foreseeable that

8 a mentally ill patient incompetent to give informed consent would

9 nonetheless sign a voluntary admission form and because the Court

10 could not "say that predeprivation process was impossible" under

11 the circumstances. Id. at 136-37. 

12 The deprivation here seems to us to have been as

13 foreseeable as it was in Zinermon. As in that case, the

14 deprivation here occurred at a "predictable point," see id. at

15 136 -- the expiration of the inmate's sentence. Nothing that

16 occurred here was random or unanticipated so as to prevent the

17 State from planning for and then providing predeprivation

18 process. Nor, as we discuss below, can it reasonably be argued

19 that predeprivation procedural protections were "unduly

20 burdensome" in comparison with the substantial liberty interest

21 at stake. 

22 Application of the Mathews balancing test supports the

23 conclusion that predeprivation process was required here and that

24 postdeprivation remedies were constitutionally insufficient. See

25 Mathews, 424 U.S. at 334-35. With respect to the "private

26 interest" aspect of the standard, the defendants acknowledge that

23
1 "involuntary commitment is a significant curtailment of liberty,"

2 but argue that because of the "extremely brief" period of

3 potential prehearing commitment, the safeguards required are not

4 as significant as they would otherwise be. Appellants' Br. 30. 

5 We think there can be no serious doubt that the liberty interests

6 implicated here are of a high order. Not only were the

7 plaintiffs' physical freedoms curtailed, but they were also

8 subject to specialized mental health treatment. This treatment

9 included the use of a "penile plethysmograph," which the First

10 Circuit has explained is a "strain gauge strapped to an

11 individual's genitals while sexually explicit pictures are

12 displayed in an effort to determine his sexual arousal patterns." 

13 Harrington v. Almy, 977 F.2d 37, 44 (1st Cir. 1992). One can

14 imagine that to be something less than a dignity inspiring

15 experience.

16 Classification as an SVP also constitutes a fundamental

17 change in an inmate's status and privileges. An SVP committed to

18 a psychiatric hospital cannot gain release until he has secured

19 either employment or vocational training, despite the fact that

20 any potential employer must be notified of his SVP status. An

21 SVP also suffers the stigma of the label itself, which connotes a

22 likelihood of recidivist sexually violent behavior, and of a

23 diagnosis of mental illness. And although it may be true that

24 SVPs have already been convicted of sex offenses carrying

25 significant stigma, that the additional stigma is only

26 incremental does not render it illusory.

24
1 As Vitek confirmed, a prisoner –- even one convicted of

2 an atrocious crime -- maintains a liberty interest in the

3 conditions relating to the essential nature of his confinement. 

4 Here, not only did those committed pursuant to the SVP Initiative

5 face a material change in the nature of their confinement, but

6 their confinement was also prolonged. 

7 With regard to the second factor in the Mathews test --

8 "risk of an erroneous deprivation of such interest through the

9 procedures used," Zinermon, 494 U.S. at 127 -- the defendants

10 insist that the risk of such an erroneous deprivation during the

11 five-day period before a committed SVP is entitled to a hearing

12 is "slight" because of the safeguards provided in Article 9. 

13 Appellants' Br. 30. The defendants' argument is not without

14 force. There were, on paper, procedures intended to mitigate the

15 risk of an erroneous deprivation. For example, three separate

16 medical professionals were required to sign off on every

17 commitment. And, as the defendants point out, fewer than 20

18 percent of those evaluated under the SVP Initiative were

19 ultimately committed. 

20 Despite these safeguards, several factors increased the

21 risk that an inmate would be erroneously committed under the

22 Initiative. The OMH physicians charged with examining the

23 prisoners were unfamiliar with the standards for assessing sex

24 offenders and the likelihood of recidivism, and were evaluating

25 them using a novel standard and new tools, such as the Static 99

26 form, with which they had no experience. 

25
1 Although it may be dangerous to overstate the

2 importance of the fact that the Initiative was quickly put into

3 place in a politically charged environment, it is difficult to

4 ignore (as the district court did not). Because of the infancy

5 of the Initiative and the lack of training or formal procedures,

6 coupled with significant political pressure, the risk of error

7 seems to us to have been enhanced. See Rodriguez v. City of New

8 York, 72 F.3d 1051, 1062 (2d Cir. 1995) ("Though we agree with

9 the district court that due process does not require a guarantee

10 that a physician's assessment of the likelihood of serious harm

11 be correct, . . . due process does demand that the decision to

12 order an involuntary emergency commitment be made in accordance

13 with a standard that promises some reasonable degree of

14 accuracy."). Additional safeguards would unquestionably have

15 lessened this risk. If the plaintiffs were afforded notice and a

16 hearing prior to their commitments, the decision as to whether to

17 commit would have been undertaken by a neutral decisionmaker with

18 the benefit of an adversarial hearing.

19 The defendants argue that the availability of a

20 postdeprivation hearing mitigated the risk of erroneous

21 deprivation. They point out that none of the plaintiffs

22 requested a hearing following his commitment. Although this is

23 true, the plaintiffs' filing of a habeas corpus petition in New

24 York State court and Bailey's allegation that he did not know

25 that he could request such a hearing, suggest that the

26
1 availability and contours of the process likely were not clear to

the plaintiffs.6 2

3 With respect to the third part of the Mathews test --

4 the Government's interest, including the function involved and

5 the fiscal and administrative burdens that the additional or

6 substitute procedural requirement would entail, Zinermon, 494

7 U.S. at 127 -- the defendants urge that predeprivation hearings

8 would have imposed a substantial burden on the State. They note

9 that during the first month of the Initiative, eighty prisoners

10 were examined, twenty-one of whom were eventually committed, and

11 that many of these prisoners were on the verge of being released. 

12 Because the SVP Initiative had begun only weeks before some of

13 the plaintiffs were scheduled for release, the defendants

14 contend, predeprivation hearings, in addition to conducting

15 psychiatric evaluations, would have diverted scarce resources

16 from the treatment of mentally ill inmates.

17 We disagree. Under the provisions of Article 9, the

18 defendants should have been prepared to present their case for

19 civil commitment at a hearing on five-days notice at any point

20 after a civil commitment was effected. It does not follow that

21 they could not have prepared for such a hearing in advance of

22 commitment without incurring substantial additional expense or

23 effort. The sole reason that holding predeprivation hearings

6 The record otherwise contains little detail about what

the plaintiffs understood regarding the availability of

postdeprivation hearings. 

27
1 would have unduly burdened the State is that a decision was made

2 to create and implement the Initiative on a compressed timeline;

3 any exceptional burden that the State faced was of its own

4 making. We do not think this fact should work in the defendants'

5 favor –- if it did, due process requirements could be curtailed

6 by delaying the establishment of proper procedures until they

7 became "too burdensome." 

8 Construing the evidence in the light most favorable to

9 the plaintiffs, the facts alleged, if proven, would establish

10 that the defendants violated the plaintiffs' rights to procedural

11 due process. Even if it may be said that the district court

12 mischaracterized Vitek's dicta as holding, we find no support for

13 the defendants' contention that a predeprivation hearing was not

14 required in the absence of emergent circumstances. The Mathews

15 test brings the defendants' violation into sharp relief: the

16 private interest at stake was significant; the risk of erroneous

17 deprivation was pronounced due to the lack of notice or an

18 adversary proceeding, the politically charged environment, and

19 the novel aspects of this initiative, and that risk would have

20 been reduced by additional procedures; and the burden to the

21 State would have been no greater predeprivation than

22 postdeprivation were it not for the State's own actions in

23 scrambling to implement the Initiative.

28
1 II. Qualified Immunity

2 The defendants are entitled to qualified immunity if

3 they can establish either that (1) "a constitutional right was

4 [not] violated" or (2) "the right was [not] clearly established." 

5 Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part on

other grounds by Pearson v. Callahan, 555 U.S. 223 (2009).7 6 As a

7 part of this inquiry, the Court considers whether "it would be

8 clear to a reasonable officer that his conduct was unlawful in

the situation he confronted."8 9 Id. at 202.

7 This was the test applied by the district court: The

"defendants are entitled to qualified immunity if they show

either that plaintiffs have failed to make out a violation of

constitutional right or if the right at issue was not clearly

established at the time of the alleged violation." Bailey, 722

F. Supp. 2d at 449.

8 There is some tension in our Circuit's cases as to

whether the qualified immunity standard is of two or three parts,

and whether the "reasonable officer" inquiry is part of step two

-- the "clearly established" prong -- or whether it is a

separate, third step in the analysis. Compare, e.g., Okin v.

Vill. of Cornwall-On-Hudson Police Dep't, 577 F.3d 415, 433 (2d

Cir. 2009)(reciting two-part test and stating that "'[t]he

relevant, dispositive inquiry in determining whether a right is

clearly established is whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he

confronted'" (quoting Saucier, 533 U.S. at 202)), with X-Men

Sec., Inc. v. Pataki, 196 F.3d 56, 65-66 (2d Cir. 1999)(a

governmental official is entitled to qualified immunity "in any

of three circumstances": (1) if the charged conduct does not

violate a constitutional right; (2) if the constitutional right

"was not clearly established at the time of the conduct"; or (3)

"if the defendant's action was objectively legally reasonable in

light of the legal rules that were clearly established at the

time it was taken" (quotation marks, brackets, and ellipses

omitted)); Taravella v. Town of Wolcott, 599 F.3d 129, 133-34 (2d

Cir. 2010)(describing qualified immunity analysis as "a two-part

inquiry" but adding that "the qualified immunity defense also

protects an official if it was 'objectively reasonable' for him

at the time of the challenged action to believe his acts were

lawful").

29
1 Qualified immunity is an affirmative defense and the

2 burden is on the defendant-official to establish it on a motion

3 for summary judgment. See In re State Police Litig., 88 F.3d

4 111, 123 (2d Cir. 1996). We have already determined that there

5 is sufficient evidence in the record to support, as a matter of

6 law, the plaintiffs' procedural due process claims. We therefore

7 turn to the question of whether the right at issue was clearly

8 established. In answering that question, we look to whether (1)

9 the right was defined with reasonable clarity, (2) the Supreme

10 Court or the Second Circuit has confirmed the existence of the

11 right, and (3) a reasonable defendant would have understood from

12 the existing law that his conduct was unlawful. Luna v. Pico,

13 356 F.3d 481, 490 (2d Cir. 2004). We have further held that

14 where the law was established in three other circuits and the

15 decisions of our own Court foreshadowed the right, the law was

16 sufficiently "well established" that its violation stripped the

17 defendant of his immunity. Varrone v. Bilotti, 123 F.3d 75, 78-

18 79 (2d Cir. 1997).

19 For a right to be clearly established, it is not

20 necessary that courts have agreed "upon the precise formulation

21 of the standard." Saucier, 533 U.S. at 202. "Assuming, for

22 instance, that various courts have agreed that certain conduct is

23 a constitutional violation under facts not distinguishable in a

This is not a debate we need enter inasmuch as we conclude

that qualified immunity is not available to the defendants

irrespective of which way the test is articulated. 

30
1 fair way from the facts presented in the case at hand, the

2 [defendants] would not be entitled to qualified immunity based

3 simply on the argument that courts had not agreed on one verbal

4 formulation of the controlling standard." Id. at 202-03. 

5 The Supreme Court stated more than twenty years ago in

6 Zinermon that "where the State feasibly can provide a

7 predeprivation hearing . . . it generally must do so regardless

8 of the adequacy of a postdeprivation . . . remedy . . . ." 

9 Zinermon, 494 U.S. at 132. Unless a predeprivation hearing is

10 "unduly burdensome in proportion to the liberty interest at

11 stake" or "the State is truly unable to anticipate and prevent a

12 random deprivation of a liberty interest," predeprivation notice

13 and a hearing are required before an individual may be deprived

14 of a significant liberty interest. Id. 

15 The defendants raise several arguments in support of

16 their position that the right at issue here -- notice and an

17 adversarial hearing prior to civil commitment -- was not so

18 clearly established that a reasonable person in the defendants'

19 position would know that his conduct was unlawful. The

20 defendants contend that the Second Circuit upheld the procedures

21 laid out in Article 9 in Project Release v. Prevost, 722 F.2d 960

22 (2d Cir. 1983), which examined the constitutionality of Article

23 9's provision allowing hospitalization for up to sixty days

24 without a hearing unless one is requested. Project Release

25 dealt, however, with the facial validity of Article 9, and

26 explicitly left open the possibility of an as-applied challenge. 

31
1 Id. at 971. The plaintiffs do not contend that Article 9 is

2 unconstitutional when utilized to take an acutely dangerous and

3 mentally ill person off the streets –- the basis upon which we

4 upheld the statute in Project Release. 

5 In that decision, we concluded that involuntary

6 commitment without an automatic hearing within 48 hours was

7 constitutional when dealing with "persons with a mental illness

8 'for which care and treatment in a hospital is essential to such

9 persons' welfare and whose judgment is so impaired that [they

10 are] unable to understand the need for such treatment.'" Id. at

11 972 (quoting MHL §§ 9.27, 9.01). That is not the population at

12 issue here, nor the standard that was applied. 

13 The defendants also point out that the New York

14 Appellate Division "found no constitutional violation in

15 plaintiffs' own cases when plaintiffs raised the identical due

16 process claim on state habeas review." Appellants' Br. 37. 

17 (emphasis omitted). The defendants refer to State ex rel.

18 Harkavy v. Consilvio, 29 A.D.3d 221, 812 N.Y.S.2d 496 (1st Dep't

19 2006), but that decision was reversed by the New York Court of

20 Appeals, see State ex rel. Harkavy v. Consilvio, 7 N.Y.3d 607,

21 859 N.E.2d 508, 825 N.Y.S.2d 702 (2006). And although the Court

22 of Appeals in Harkavy did not decide the constitutionality of

23 applying Article 9 to prisoners, in a concurrence, as we have

24 seen, Judge Smith noted that it "would raise serious

25 constitutional problems," because the plaintiffs had all been in

26 prison for several years before civil commitment procedures were

32
1 initiated and there was no "sudden, unforseen emergency" that

2 would require their immediate commitment without prior notice or

3 a hearing. Id. at 615 (Smith, J., concurring).

4 The defendants cite several cases in which they contend

5 that prehearing transfer and commitment of prisoners and sex

6 offenders has been held to be constitutional. In Gay v. Turner,

7 994 F.2d 425 (8th Cir. 1993) (per curiam), for example, the

8 Eighth Circuit affirmed a grant of summary judgment for a

9 defendant on the plaintiff's due process claim where the

10 plaintiff, an inmate, had been transferred to a state mental

11 hospital without a hearing. Id. at 426. That decision, however,

12 was based on the plaintiff having signed transfer forms, and her

13 failure to adduce any evidence that her consent was not

14 voluntary. Id. at 427. 

15 The defendants also rely on Aruanno v. Hayman, 384 F.

16 App'x 144 (3d Cir.), cert. denied, 131 S.Ct. 835 (2010), in which

17 the Third Circuit -- in a non-precedential opinion -- upheld a

18 state-law provision allowing a court to order temporary

19 commitment based on an ex parte submission from the State

20 Attorney General. Id. at 150. Any individual committed under

21 the statute was entitled to a hearing within twenty days of the

22 commitment order. Id. 

23 The factual circumstances in Aruanno differ

24 significantly from those here. New Jersey had initiated civil

25 commitment proceedings nearly a year before the plaintiff's

26 release date, but was unable to hold a hearing due in part to the

33
1 plaintiff's "repeated insistence that he be appointed new

2 counsel." Id. at 145. In addition, Aruanno was temporarily

3 committed pursuant to a judicial order, albeit one based on an ex

4 parte submission. Id. at 148 n.8. Aruanno suffered from

5 schizophrenia and refused to take his medication, which a doctor

6 later testified presented a "very high" risk of future violence. 

7 Id. at 146. The non-precedential opinion was issued, moreover,

8 over Judge McKee's dissent, which argued that "absent exigent

9 circumstances, no justification exists for denying [the

10 plaintiff] his due process right to notice prior to his

11 involuntary commitment under the [act]." Id. at 152-53. He

12 continued, "[i]t is clear that post-deprivation hearings are

13 appropriate and constitutionally permissible in emergency

14 situations where there is no realistic opportunity to afford

15 prior notice to one whom the state wants to involuntarily commit. 

16 That is simply not the situation here . . . ." Id. at 153. We

17 agree. 

18 The defendants also point to the procedures in the

19 federal sex-offender commitment statute, 18 U.S.C. § 4248. Under

20 that statute, the Department of Justice must certify to a federal

21 district court that a prisoner is "sexually dangerous," at which

22 point the statute "stays the individual's release from

23 prison . . . giving the Government an opportunity to prove its

24 claims at a hearing." United States v. Comstock, 130 S.Ct. 1949,

25 1954 (2010). The prisoner is then afforded counsel and an

26 adversarial hearing prior to his civil commitment. Id. 

34
1 According to the defendants, the procedures set forth

2 in Article 9 are more protective than are those in the federal

3 statute because the latter permits the individual's release to be

4 stayed for up to seventy-five days or more before his commitment

5 hearing. See 18 U.S.C. § 4247(b); see also United States v.

Shields, 522 F. Supp. 2d 317, 334 (D. Mass. 2007).9 6 What the

7 defendants fail to acknowledge, however, is that the federal

8 statute permits a temporary stay of release prior to a commitment

9 hearing; it does not permit, as was the case here, civil

10 commitment followed by the opportunity for a hearing. Here, the

11 question is whether an individual must be afforded the

12 opportunity for a hearing before he is civilly committed to a

13 psychiatric facility. Vitek's emphasis on the "stigmatizing

14 consequences of transfer to a mental hospital" and the "mandatory

15 behavior modification" treatment that prisoners undergo once at

16 the hospital, Vitek, 445 U.S. at 494, suggests there is an

17 important difference between holding an inmate for a brief period

18 beyond his release date for the purpose of providing process

19 before civil commitment and subjecting him to commitment in a

20 psychiatric facility in advance of any hearing. 

9 In Shields, the district court declined to invalidate

the federal sex-offender statute on a facial due process

challenge. The court did, however, find that the lack of a

probable cause hearing after certification "raises serious

constitutional questions." Shields, 522 F. Supp. 2d at 333. The

court concluded that, in order to avoid interpreting the act

itself as unconstitutional, it would construe it to require a

hearing "within forty-eight hours after a certified individual is

detained beyond his scheduled release date," unless there were

"exigent or extraordinary circumstances." Id. at 337.

35
1 We ultimately agree with the district court that "the

2 basic proposition that due process requires a predeprivation

3 hearing unless there is an immediate danger to society" was well

4 established prior to 2005. Bailey, 722 F. Supp. 2d at 451. 

5 Despite the litany of cases cited by the defendants to suggest

6 that due process tolerates civil commitment of inmates without

7 either notice or a hearing, each of those cases involved critical

8 factors not present here. In none of the cases was a civil

9 commitment effected without notice or a predeprivation hearing

10 where the inmate was safely confined, and, indeed, where the

11 standard the inmate met was not one of immediate and acute

12 dangerousness but rather potential recidivism five, ten, or

13 fifteen years after his release. See, e.g. Glass v. Mayas, 984

14 F.2d 55, 57 (2d Cir. 1993) (upholding involuntary commitment

15 without a predeprivation hearing where the committed individual

16 "was hospitalized following two reports he was threatening an

17 individual with a gun," had displayed behavior described by those

18 who examined him as "hostile, guarded, angry, suspicious,

19 uncooperative, and paranoid," and "had an extensive psychiatric

20 history, which included a history of violent behavior"). The

21 defendants offer no Supreme Court or Second Circuit precedent for

22 the proposition that due process is satisfied if an individual in

23 the plaintiffs' position has the opportunity to request a hearing

24 after he has been labeled an SVP and civilly committed. 

25 Except for emergent or otherwise unusual circumstances,

26 such as where an emergency makes it necessary for the State to

36
1 act immediately to avoid imminent harm to the person being

2 restrained or to the public, or where predeprivation process is

3 highly impracticable, the Supreme Court has long held that "the

4 Constitution requires some kind of a hearing before the State

5 deprives a person of liberty." Zinermon, 494 U.S. at 127

6 (emphasis in original). See also United States v. James Daniel

7 Good Real Prop., 510 U.S. 43, 62 (1993) ("Unless exigent

8 circumstances are present, the Due Process Clause requires the

9 Government to afford notice and a meaningful opportunity to be

10 heard before seizing real property . . . ."); Cleveland Bd. of

11 Educ. v. Loudermill, 470 U.S. 532, 542 (1985) ("An essential

12 principle of due process is that a deprivation of life, liberty,

13 or property be preceded by notice and opportunity for hearing

14 appropriate to the nature of the case." (quotation marks and

15 citation omitted)); Vitek, 445 U.S. at 496 ("[N]otice is

16 essential to afford the prisoner an opportunity to challenge the

17 contemplated action and to understand the nature of what is

18 happening to him."); Burtnieks v. City of New York, 716 F.2d 982,

19 988 (2d Cir. 1983) (observing that "the existence vel non of an

20 emergency . . . is a material fact" in determining whether a

21 predeprivation hearing is constitutionally required). 

22 Furthermore, the decision to apply the procedures of

23 Article 9 to the plaintiffs was made despite the fact that there

24 was a law in place, Correction Law § 402, which outlined civil

25 commitment procedures for those already incarcerated and which

26 clearly provided for a predeprivation hearing. We think

37
1 reasonable persons in the defendants' positions would have

2 understood that, absent exigent circumstances not present here,

3 it was unconstitutional to civilly commit inmates to a

4 psychiatric facility prior to any notice or adversarial hearing. 

5 Using the words of the district court, in the absence of any

6 "immediate danger to society," a predeprivation hearing was

7 required before civilly committing an inmate and this requirement

8 was "so obvious that no reasonable defendant official could have

9 failed to miss it." Bailey, 722 F. Supp. 2d at 450. The

10 defendants are therefore not entitled to the benefit of qualified

11 immunity.

12 III. Plaintiffs' Additional Claims

13 The defendants, citing Sadallah v. City of Utica, 383

14 F.3d 34 (2d Cir. 2004), argue that because they are entitled to

15 qualified immunity on the plaintiffs' procedural due process

16 claims, the defendants are also entitled to summary judgment on

17 the plaintiffs' remaining federal and state claims. The court in

18 Sadallah explained that "[n]ormally, we would not have

19 jurisdiction to consider plaintiffs' [additional] claims . . .

20 because only the issue of . . . entitlement to qualified immunity

21 was immediately appealable. When, however, an appellate court

22 'has taken jurisdiction over one issue in a case, it may, in its

23 discretion, exercise jurisdiction over an independent but related

24 question that is inextricably intertwined with the [appealable

25 issue] or is necessary to ensure meaningful review of that

26 issue.'" Id. at 39 (quoting Ierardi v. Sisco, 119 F.3d 183, 189

38
1 (2d Cir. 1997)). Specifically, the defendants urge that because

2 the gist of the plaintiffs' other claims is the existence of a

3 deliberate conspiracy to violate the plaintiffs' rights, those

4 claims must fail because the right at issue was not clearly

5 established. 

6 We decline to exercise jurisdiction over the

7 plaintiffs' other claims. Reaching these additional claims is

8 not necessary to ensure meaningful review of the qualified

9 immunity question, nor are the claims "inextricably intertwined"

10 with that issue. Furthermore, as a practical matter, because we

11 conclude that qualified immunity does not attach to the

12 procedural due process claims, there would be no basis for

13 dismissing the other claims against the defendants. 

14 IV. Plaintiffs' Summary Judgment Motion

15 Finally, the plaintiffs assert that the district court

16 erred in not granting summary judgment in their favor on their

17 procedural due process claims after determining that the

18 defendants were not entitled to qualified immunity, and, in a

19 later opinion, that each defendant participated in the

20 constitutional deprivation.

21 The plaintiffs mischaracterize the district court's

22 opinion. The court concluded that the plaintiffs had adduced

23 enough evidence of personal involvement to survive summary

24 judgment –- not that "the defendants did not dispute their

25 'participat[ion] in the creation and implementation' of the SVP

26 initiative." Appellees' Br. at 60. The district court noted

39
1 that the defendants "dispute the extent and materiality of such

2 involvement" and determined that the question must go to the

3 jury. Bailey, 2010 WL 4237071, at *4, 2010 U.S. Dist. LEXIS

4 113766, at *12. The factual disputes that the district court

5 identified as precluding summary judgment have not been resolved,

6 and we think it impossible for us to do so on the current record. 

7 Neither is this a question "inextricably intertwined" with the

8 resolution of the qualified immunity issue.

9 CONCLUSION

10 We have considered all of the parties' arguments, and

11 for the reasons set forth above, we affirm the decision of the

12 district court.

40