12-1374-pr
Dorsey v. Hogan

                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated Term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,
in the City of New York, on the 14th day of February, two thousand thirteen.

Present:    SUSAN L. CARNEY,
            CHRISTOPHER F. DRONEY,
                        Circuit Judges,
            PAUL G. GARDEPHE,
                        District Judge.*
______________________________________________________
                                                      |
THOMAS DORSEY,                                        |
                                                      |
                  Plaintiff–Appellant,                |
                                                      |
                    v.                                |                   No. 12-1374-pr
                                                      |
DR. MICHAEL HOGAN, PH.D., COMMISSIONER OF             |
THE OFFICE OF MENTAL HEALTH; DR. TERRI                |
MAXYMILLIAN, DIRECTOR, SEX OFFENDER                   |
TREATMENT PROGRAM, CENTRAL NEW YORK                   |
PSYCHIATRIC CENTER,                                   |
                                                      |
                  Defendants–Appellees.               |
______________________________________________________|




       *
       The Honorable Paul G. Gardephe, United States District Judge for the Southern District of
New York, sitting by designation.
FOR APPELLANT:             Thomas Dorsey, pro se, Rocky Mount, North Carolina.

FOR APPELLEES:             Eric. T. Schneiderman (Barbara D. Underwood, Andrea
                           Oser, and Andrew B. Ayers, on the brief), Attorney
                           General of the State of New York, Albany, New York.

      Thomas Dorsey appeals from the judgment of the United States District

Court for the Northern District of New York (Frederick J. Scullin, Jr., Judge)

dismissing his § 1983 complaint. Although we affirm the district court’s dismissal

of plaintiff’s claims for injunctive relief and so much of plaintiff’s complaint as seeks

damages in relation to defendants’ requirement that plaintiff participate in sex

offender treatment, we reverse the district court’s dismissal of the portion of the

complaint that seeks damages for denial of access to the courts, and we remand to

the district court with instructions to grant plaintiff leave to file a second amended

complaint alleging a violation of the preliminary injunction governing the

enforcement of N.Y. Mental Hygiene Law § 10.06(k), and for further proceedings on

plaintiff’s access-to-courts claim. UPON DUE CONSIDERATION, THEREFORE,

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment

dismissing plaintiff’s complaint is AFFIRMED in part and REVERSED in part, and

the case is REMANDED for further proceedings consistent with this opinion.

      Thomas Dorsey, proceeding pro se, appeals from the district court’s dismissal

of his 42 U.S.C. § 1983 complaint for damages and injunctive relief. In his amended

complaint, Dorsey – who had been civilly confined from May 2009 through some

time in February 2011, under New York law, as a possible sex offender – made

primarily two allegations. First, he alleged that his due process rights were

                                            2
violated when he was required to participate in sex offender treatment at the

Central New York Psychiatric Center (“CNYPC”). Second, he claimed that while

confined, he was unlawfully denied access to a law library and, by extension, to the

courts. Adopting the Magistrate Judge’s Report and Recommendation, the district

court dismissed Dorsey’s claims for monetary damages for failure to state a claim,

and abstained, pursuant to Younger v. Harris, 401 U.S. 37 (1971), from exercising

jurisdiction over Dorsey’s claims for injunctive relief. We assume the parties’

familiarity with the underlying facts, the procedural history of the case, and the

issues on appeal.

      1.     As enacted in 2007, New York’s Sex Offender Management and

Treatment Act, codified at N.Y. Mental Hygiene Law §§ 10.01, et seq. (the “Act”),

authorizes the indefinite civil confinement or “strict and intensive” outpatient

supervision and treatment of “sex offender[s] requiring civil management,” defined

as “detained sex offender[s] who suffer[ ] from a mental abnormality.” N.Y. Mental

Hygiene Law §§ 10.03(q), 10.07(f). The category of “detained sex offenders” includes

persons who have been convicted of sex offenses, as well as persons who have been

convicted of other “designated felonies” – committed before the Act’s effective date –

that were “sexually motivated.” Id. § 10.03(g).

      Under the Act, shortly before a “detained sex offender” is scheduled to

complete the sentence of incarceration imposed for his or her underlying offense, a

“case review team” informs the state Attorney General as to whether it finds the

person is a “sex offender requiring civil management.” If the case review team

                                          3
makes this finding, the Attorney General may then file a “sex offender civil

management petition.” Id. § 10.06(a). Within thirty days of the petition’s filing, a

state court holds a hearing to determine whether there is probable cause to believe

that the person is a “detained sex offender who suffers from a mental abnormality.”

Id. §§ 10.03(q), 10.06(k). If the court finds such probable cause, the Act provides

that, after the sentence of incarceration is completed, the person “shall” be

committed to a “secure treatment facility” while awaiting a trial to determine

whether the person is a “detained sex offender who suffers from a mental

abnormality.” Id. §§ 10.03(q), 10.06(k).

      At trial, the Attorney General must prove by clear and convincing evidence

that the person is a “detained sex offender who suffers from a mental abnormality.”

Id. § 10.07(d). If the Attorney General is unable to meet this burden, the person

must be released unless another provision of law authorizes continued detention.

Id. § 10.07(e). If, however, the Attorney General carries his burden of proof, the

court must determine “whether the [person] is a dangerous sex offender requiring

confinement or a sex offender requiring strict and intensive supervision.” Id.

§ 10.07(f). If the person is found to have a mental abnormality involving “such a

strong predisposition to commit sex offenses, and such an inability to control

behavior, that the respondent is likely to be a danger to others and to commit sex

offenses if not confined to a secure treatment facility,” then the person must be

civilly committed “until such time as he or she no longer requires confinement.” Id.

Otherwise, the person is “subject to a regimen of strict and intensive supervision

and treatment.” Id.; see also id. § 10.11.

                                             4
      2.       In 2006, Dorsey was convicted of attempted assault and sentenced to

three years’ imprisonment. His claims in the appeal before us arise from the terms

of his detention at CNYPC, pursuant to the Act, beginning upon his release from

prison on May 11, 2009, and continuing through February 2011. His civil detention

appears to have begun after the State conducted a probable cause hearing as

contemplated by the Act, but before a jury trial. Plaintiff states in his brief that, at

the jury trial, “his [attempted assault] conviction was found not to be a sexually

motivated crime,” and he was therefore released. Appellant’s Br. at 14. The record

is otherwise devoid of evidence regarding the bases for his post-sentence detention

and release.

      Because he was released in February 2011, Dorsey’s claims for injunctive

relief relating to the conditions of his confinement at CNYPC are moot. See, e.g.,

Prins v. Coughlin, 76 F.3d 504, 506 (2d Cir. 1996) (per curiam). Dorsey’s claims for

damages, however, are properly before us for review on appeal.

      3.       This Court “review[s] de novo a district court’s dismissal of a complaint

pursuant to [Federal Rule of Civil Procedure] 12(b)(6), construing the complaint

liberally, accepting all factual allegations in the complaint as true, and drawing all

reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc., 282

F.3d 147, 152 (2d Cir. 2002). A claim has “facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct.

1937, 1949 (2009). We construe the submissions of a pro se litigant liberally and

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“interpret[ ] [them] to raise the strongest arguments that they suggest.” Triestman

v. Federal Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation

marks omitted).

       Plaintiff’s amended complaint alleges that defendants deprived him of

procedural and substantive due process by requiring him, while at CPNYC, to

participate in sex offender treatment based solely on a finding of probable cause to

believe that he was a sex offender with a “mental abnormality.” Defendants argue

that plaintiff has failed to state a claim on which relief may be granted, or, in the

alternative, that they are entitled to qualified immunity from suit on these claims.

           To determine whether an official is entitled to qualified immunity, the court

must assess (a) whether the plaintiff has alleged a violation of a statutory or

constitutional right, and (b) whether that right was “clearly established” at the time

of the alleged violation. Pearson v. Callahan, 555 U.S. 223, 232 (2009).

       4.       Defendants are entitled to qualified immunity on plaintiff’s claim that

his due process rights were violated when the State required him, an individual

detained under the Act after a probable cause hearing, to participate in a sex

offender treatment program.1 This Court is not aware of any controlling authority

holding that, as a condition of an otherwise valid confinement, a person must be

found to be a sex offender by a standard stricter than probable cause before the

person may be required to participate in a sex offender treatment program. Thus,

       1
          Dorsey appears to concede in his complaint that he exercised his right to opt-out of
participation in sex offender treatment. He alleges, however, that he suffered negative consequences
for his refusal to participate.

                                                 6
plaintiff has not alleged facts sufficient to sustain his claim that defendants violated

a “clearly established” constitutional or statutory right in relation to the sex

offender treatment itself, and we therefore affirm the dismissal of plaintiff’s

damages claim in this regard.

      5.     We note, however, that the record suggests that Dorsey’s objection to

the treatment program may have a more compelling basis than is explicit in his pro

se complaint: he may have been confined at CPNYC in violation of a preliminary

injunction entered by then-District Judge Lynch. In December 2007, two years

before Dorsey was first confined under the Act, Judge Lynch issued an order

barring New York from enforcing N.Y. Mental Hygiene Law § 10.06(k), the

provision under which Dorsey was detained. As discussed above, § 10.06(k) permits

detention of certain sex offenders after a court’s finding of probable cause and

before the State’s presentation at a jury trial. Granting a motion for preliminary

injunction, Judge Lynch found that the statute was likely unconstitutional in

permitting such interim confinement absent a “specific, individualized finding of

probable cause to believe that [the] person is sufficiently dangerous to require

confinement, and that lesser conditions of supervision will not suffice to protect the

public during [the] pendency of the proceedings.” Mental Hygiene Legal Serv. v.

Spitzer, No. 07-Civ-2935, 2007 WL 4115936, at *15 (S.D.N.Y. Nov. 16, 2007).

      Entry of the preliminary injunction was affirmed on appeal by a panel of this

Court in March 2009, Mental Hygiene Legal Serv. v. Paterson, No. 07-5548-cv, 2009



                                           7
WL 579445 (2d Cir. Mar. 4, 2009) (summary order), and the injunction appears to

have remained in effect throughout plaintiff’s confinement at CPNYC.2

       6.      In their briefing on appeal, defendants describe Dorsey’s confinement

as resting on a State Supreme Court judge’s “administrative finding” of probable

cause to believe that plaintiff “suffered from a mental abnormality that predisposed

him to engage in repeated sex offenses, and had serious difficulty controlling his

behavior.” Appellees’ Br. 7. (The record before us does not contain the State

Supreme Court’s language verbatim.) Defendants do not assert, however, that the

record demonstrates that the State court also made a finding – as required by the

preliminary injunction – that plaintiff was so dangerous that lesser conditions of

confinement would not suffice to protect the public.

       Defendants recognize the existence of the preliminary injunction but contend

that the preliminary injunction is irrelevant here because it did not concern the

precise issue raised by Dorsey. Appellees’ Br. at 18 & n.7. To be sure, Dorsey’s

complaint took issue primarily with the requirement that he participate in a sex

offender treatment program while confined, but construing his pro se submission

liberally, as we must, we think the complaint can fairly be read to present a more



       2
         Indeed, a permanent injunction to the same effect as Judge Lynch’s preliminary injunction
was entered by the district court in March 2011, the month after plaintiff’s release. See Mental
Hygiene Legal Serv. v. Cuomo, 785 F. Supp. 2d 205, 229 (S.D.N.Y. 2011) (Batts, J.). In 2012, our
Court vacated the permanent injunction and remanded the proceedings to the district court with
directions to assess Mental Hygiene Legal Service’s standing in light of our recent opinion in
Disability Advocates, Inc. v. N.Y. Coalition for Quality Assisted Living, Inc., 675 F.3d 149 (2d Cir.
2012). Mental Hygiene Legal Serv. v. Schneiderman, 472 Fed. App’x 45 (2d Cir. June 20, 2012).


                                                  8
general challenge to his confinement as a sex offender. See Am. Compl. ¶ 24.

Furthermore, a condition of confinement, such as participation in a treatment

program, cannot be legitimate if the confinement itself contravenes the law. The

State’s potential violation of the injunction thus lies close enough to the heart of

Dorsey’s main complaint to suggest that, with the assistance of counsel, he might

present his confinement claim in such a way as to survive a motion to dismiss.

        We therefore vacate the judgment for defendants and remand to the district

court with instructions to grant plaintiff leave to file a second amended complaint

explicitly alleging a violation of the preliminary injunction.3 The district court is

also directed to appoint pro bono counsel for Dorsey on remand.

        7.      The Magistrate Judge found that plaintiff had failed to allege “actual

injury,” as required to state a claim for a denial of access to the courts. Because we

conclude, as discussed above, that plaintiff may have been confined in violation of

the preliminary injunction, and that he may have been unable to vindicate his claim

while incarcerated by virtue of his lack of access to a law library or counsel, we also

conclude that plaintiff has plausibly alleged that his efforts to pursue relief in state

court were improperly hindered. We therefore reverse the district court’s dismissal

of plaintiff’s access-to-courts claim and remand for further proceedings.


        3
          Although the question is not fully addressed in their brief on appeal, defendants do not
appear to suggest that they would be entitled to qualified immunity had plaintiff presented his claim
as one for a violation of the preliminary injunction. There is at least a plausible argument that
confining a person in violation of a preliminary injunction constitutes a “clearly established” violation
of the detainee’s statutory or constitutional rights such as might overcome a defense of qualified
immunity. Defendants’ individual roles in effecting Dorsey’s detention likely would bear heavily on
any related immunity claim.

                                                   9
      For the foregoing reasons, we hereby AFFIRM so much of the judgment as

dismisses plaintiff’s claims for injunctive relief and plaintiff’s claim seeking

damages for mandatory participation in sex offender treatment, REVERSE the

judgment of dismissal of plaintiff’s access-to-courts-claim, and REMAND to the

district court for further proceedings consistent with this opinion.



                                         FOR THE COURT:

                                         Catherine O’Hagan Wolfe, Clerk




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