Sharkany v. Toper et al

Filing 9

ORDER DISMISSING CASE; granting 5 and 6 Motions to Amend/Correct; denying 2 Motion for Leave to Proceed in forma pauperis; denying as moot 7 Motion to Stay and 8 Motion for Order. Signed by Judge Victor A. Bolden on 6/8/2017. (Williams, C)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
GLEN ALAN SHARKANY,
Plaintiff,
v.
BRIAN J. TOPER and PATRICK
NORTON,
Defendants.

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CASE NO. 3:17-cv-00005 (VAB)

RULING ON MOTIONS TO AMEND COMPLAINT AND
MOTION TO PROCEED IN FORMA PAUPERIS; ORDER DISMISSING CASE
Mr. Sharkany seeks to amend his Complaint as well as leave to proceed in forma
pauperis in this action under 28 U.S.C. § 1915. For the reasons set forth below, Mr. Sharkany’s
motions to amend his Complaint and add exhibits are GRANTED; his motion for leave to
proceed in forma pauperis is DENIED, and his Complaint is DISMISSED without prejudice.
In Mr. Sharkany’s two motions to amend the Complaint, ECF Nos. 5 and 6, he seeks to
add several exhibits to the Complaint as well as correct one typographical error. Courts are
instructed to “freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Accordingly,
both motions are granted. Mr. Sharkany’s additional exhibits and edits are incorporated into his
Complaint, and all documents submitted to the Court have been considered in connection with
this ruling.
Mr. Sharkany also moved for leave to proceed in forma pauperis. It is well-settled that
the decision to proceed in forma pauperis in civil cases is committed to the sound discretion of
the district court. Bounds v. Smith, 430 U.S. 817, 826 (1977); Patterson v. Rodgers, 708 F. Supp.
2d 225, 230 (D. Conn. 2010). Applications to proceed in forma pauperis require a two-step
process of review by the district court. Bey v. Syracuse Univ., 155 F.R.D. 413, 413 (N.D.N.Y.
1994). First, the Court must determine whether the litigant qualifies to proceed in forma
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pauperis based on economic status. 28 U.S.C. § 1915(a)(1). According to the Court’s review of
the financial affidavits that Mr. Sharkany submitted, Mr. Sharkany has satisfied this requirement.
The second step of the review process requires the Court to determine whether the cause
of action is frivolous, malicious, or without merit. 28 U.S.C. §1915(e)(2)(B). This Court “shall
dismiss the case at any time if the court determines that…the action (i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a
defendant who is immune from such relief.” Id. (emphasis added).1 The Court concludes that
Mr. Sharkany’s claims cannot succeed on the merits. Therefore, this case is appropriately
dismissed for failure to state a claim.
Mr. Sharkany’s Complaint brings claims against two United States Probation Officers,
Brian Toper and Patrick Norton. Compl., ECF No. 1. Specifically, he alleges that Mr. Toper
and Mr. Norton illegally arranged for his confinement at Whiting Forensic Institute (“Whiting”),2
a mental health institution, following the completion of his federal criminal sentence on March
26, 2016. Compl. at 3, ECF No. 1. He alleges that, at the commencement of his term of
supervised release, Mr. Toper and Mr. Norton communicated confidential health information to
Whiting and improperly arranged a psychological examination without a prior court order,
resulting in his eventual commitment by order of a Probate Judge. Id. In a two-count
Complaint, he seeks to bring claims of unlawful confinement and cruel and unusual punishment
against Mr. Toper and Mr. Norton. Id. at 3-4.

The term “frivolous” is not intended to be insulting or demeaning; it is a term of art that has a precise meaning. A
claim is said to be frivolous if it does not have an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319,
325 (1989). The Court, by using this term as required, does not intend to diminish what Mr. Sharkany has
experienced or its impact upon him.
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Throughout the Complaint Mr. Sharkany refers to this institution as “Whitting Forensic Institute.” He appears to
be referring to the Whiting Forensic Division of Connecticut Valley Hospital, located in Middletown, Connecticut.
See Whiting Forensic Division of Connecticut Valley Hospital (CVH), Dep’t of Mental Health & Addiction Services,
http://www.ct.gov/dmhas/cwp/view.asp?q=412462 (last modified Feb. 21, 2017).
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“Civil commitment for any purpose requires due process protection.” Project Release v.
Prevost, 722 F.2d 960, 971 (2d Cir. 1983). In Connecticut, Conn. Gen. Stat. § 17a-520 governs
the process by which a former inmate may be transferred to a state hospital for persons with
psychiatric disabilities “at the time of the expiration of the term of imprisonment for which he
was committed….” Conn. Gen. Stat. § 17a-520. Under this statute, upon transfer to the state
hospital, “the superintendent of such hospital shall cause proceedings for the commitment of
such person to be instituted in the court of probate having jurisdiction in the town where such
hospital is located, unless such person is already under an order of commitment of a court of
probate.” Id. At that time, two probate court-appointed physicians must “fully investigate the
facts of the case,” after which time the probate court “may order such person detained in such
hospital until he has recovered his sanity.” Id.
The record demonstrates that this procedure was properly followed in Mr. Sharkany’s
case. The Court takes judicial notice of the Memorandum from the United States Probation
Office to Judge Bryant, who presided over Mr. Sharkany’s underlying criminal proceeding. See
United States v. Sharkany, Case No. 3:13-CR-00094 (VLB), Probation Mem., ECF No. 43
(Sealed). The Memorandum outlines the Probation Office’s initial request that Mr. Sharkany’s
mental health information be provided to the State of Connecticut Department of Mental Health
and Addiction Services, Division of Forensic Services, for purposes of a psychological
evaluation. This proposal was approved by Judge Bryant on February 8, 2016, over three
months before Mr. Sharkany’s scheduled release date on May 26, 2016. Id. The record
demonstrates that Mr. Sharkany was transported to Connecticut Valley Hospital for an
evaluation following his release, and that Probate Judge Marino ordered him to be civilly
committed following a probate hearing on June 17, 2016, within one month of Mr. Sharkany’s

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arrival. See United States v. Sharkany, Case No. 3:13-CR-00094 (VLB), Gov’t Reply Br., ECF
No. 50; Compl. at 4, ECF No. 1.
As discussed above, the statutes governing civil commitment following the completion of
a criminal sentence allow for an individual to be transferred to the institution in question and
held there involuntarily before a probate proceeding has taken place, provided that the individual
is properly examined upon arrival and a probate proceeding is promptly scheduled. Conn. Gen.
Stat. § 17a-520. Mr. Sharkany does not allege that the evaluation or probate proceeding never
took place; rather, he complains that Judge Marino’s order of commitment is “moot null and
void” because Mr. Sharkany had been initially “herded into the building [without] any court
order” following the completion of his criminal sentence. Compl. at 4, ECF No. 1.
Mr. Sharkany’s pre-hearing confinement in a psychiatric hospital does not categorically
violate his constitutional rights. See Addington v. Texas, 441 U.S. 418, 431 (1979) (“As the
substantive standards for civil commitment may vary from state to state, procedures must be
allowed to vary so long as they meet the constitutional minimum.”); Project Release, 722 F.2d at
975 (“That some states have chosen to limit pre-hearing confinement to a shorter period does not
mean that such a model ‘is needed or is even adaptable to the needs of all states.’”) (quoting
Addington, 441 U.S. at 431). Mr. Sharkany’s initial transfer to Whiting and his time at Whiting
in advance of his court-ordered commitment did not violate Mr. Sharkany’s rights under
Connecticut law. In addition, the facts alleged in the Complaint, taken as true, do not raise a
valid claim that the Connecticut civil commitment statute, as applied here, is unconstitutional.
Even if Defendants’ actions were found to be improper, Mr. Sharkany’s claims cannot
succeed because the Defendants named in the Complaint are immune from suit. Mr. Sharkany
brings this lawsuit against two United States Probation Officers based on their actions as

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probation officers. The Second Circuit has granted absolute immunity to probation officers who
are acting as an “arm of the court,” protecting them from any liability for actions taken in that
capacity. Peay v. Ajello, 470 F.3d 65, 70 (2d Cir. 2006) (“In light of the role Connecticut law
assigns to presentence reports in aid of a judicial function and the safeguards in place to protect a
defendant's right to be sentenced based on accurate information, we hold that absolute immunity
from claims for damages applies to Connecticut probation officers in the preparation and
submission of presentence reports.”); Dorman v. Higgins, 821 F.2d 133, 137 (2d Cir. 1987)
(granting absolute immunity to federal probation officers for the improper completion of presentence reports because they are acting “as an arm of the court and that that task is an integral
part of one of the most critical phases of the judicial process”); cf. Scotto v. Almenas, 143 F.3d
105, 112 (2d Cir. 1998) (protections of absolute immunity do not extend to actions that are “not
performed under judicial direction”).
The record demonstrates that Defendants arranged Mr. Sharkany’s psychological
evaluation at Connecticut Valley Hospital in accordance with Mr. Sharkany’s judge-ordered
criminal sentence, which required participation in mental health treatment as a condition of
supervised release. See United States v. Sharkany, Case No. 3:13-CR-00094 (VLB), Judgment,
ECF No. 37. Judge Bryant formally ordered Mr. Sharkany’s evaluation on February 8, 2016, see
United States v. Sharkany, Probation Mem., ECF No. 43 (sealed), and all subsequent conduct on
the part of Defendants, including transporting Mr. Sharkany to Whiting, followed directly from
that court-ordered psychological examination. As a result, all of Mr. Sharkany’s complained of
actions were actions taken by Defendants “as an arm of the court” in their handling of Mr.

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Sharkany’s healthcare following his term of incarceration. Accordingly, Defendants are
protected by absolute immunity, and Mr. Sharkany’s claims against them cannot proceed.3
As Mr. Sharkany has failed to state an actionable claim, dismissal is warranted.4 See
Ahmed-Al-Khalifa v. Trayers, No. 3:13-CV-00869 (CSH), 2013 WL 3326212, at *1 (D. Conn.
July 1, 2013) (“[A] court shall dismiss a case in which there has been a motion for proceeding in
forma pauperis… ‘if the court determines that ... the action ... fails to state a claim on which
relief may be granted.’”) (quoting 28 U.S.C. § 1915(e)(2)(B)(ii)). Mr. Sharkany’s pending
motion to stay, ECF No. 7, and his recent motion for an order directing service, ECF No. 8, are
denied as moot.
Absent factual allegations that Defendants did something other than what was approved
under a court order, leave to amend Mr. Sharkany’s Complaint would likely be futile. See
Lucente v. Int'l Bus. Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002) (“Where it appears that
granting leave to amend is unlikely to be productive… it is not an abuse of discretion to deny
leave to amend.”) (citing Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.1993)).
Nevertheless, the Court will dismiss this case without prejudice in the event that Mr. Sharkany
can make such allegations. Any Amended Complaint containing such allegations must be filed
within twenty (20) days of this ruling or this case will be dismissed.

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To the extent that Mr. Sharkany seeks to challenge the order of civil commitment issued by Probate Judge Marino,
Mr. Sharkany could have taken advantage of his statutory right to “appeal to the superior court for the judicial
district having jurisdiction” within thirty (30) days of the probate court order. Conn. Gen. Stat. § 17a-520.
Even apart from the protections of absolute immunity in this case, it is well-established that “[g]overnment
officials who are sued in their individual capacity under Section 1983 are qualifiedly immune from civil damages
‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.’” Katzman v. Khan, 67 F. Supp. 2d 103, 109 (E.D.N.Y. 1999), aff'd, 242 F.3d 365 (2d
Cir. 2000) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). As both Defendants were performing their
duties as United States Probation Officers when transferring Mr. Sharkany to Whiting following his criminal
sentence, and as their actions complied with the typical procedures for civil commitment under Connecticut law,
they are covered by qualified immunity and are protected from civil damages in this case. Id.
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SO ORDERED this 8th day of June, 2017, at Bridgeport, Connecticut.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE

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