Hirsch v. Desmond et al
MEMORANDUM & ORDER granting in part and denying in part 72 Motion to Amend/Correct/Supplement. For the foregoing reasons, Plaintiff's motion to amend is GRANTED IN PART and DENIED IN PART. To the extent that it seeks to plead due process a nd equal protection claims against the County Defendants in their official capacities, the motion is GRANTED on consent. To the extent that it seeks to replead due process and equal protection claims against Defendant Pernat and a new John Doe Defen dant in their individual capacities, the motion is GRANTED IN PART and DENIED IN PART: Plaintiff may amend the FAC to assert only a substantive due process claim. The Clerk of the Court is directed to (i) docket pages 2 through 13 of Docket Entry 74 as a separate docket entry titled, "Second Amended Complaint"; (ii) reinstate Pernat as a Defendant in this action; and (iii) add a new John Doe Defendant to the caption. So Ordered by Judge Joanna Seybert on 2/7/2013. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JOSEPH S. HIRSCH,
-againstJOHN K. DESMOND, THE SUFFOLK COUNTY
DEPARTMENT OF PROBATION, CHRISTINA J.
GILSON, NANCY J. YOUNG, KAREN BELLAMY,
KATHERINE PERNAT, JOHN (JANE) DOE,
(name being fictitious) an employee of
the New York State Board of Bar
MEMORANDUM & ORDER
Philip M. Smith, Esq.
Darren Richard Luft, Esq.
Patton Boggs LLP
1185 Avenue of the Americas
New York, NY 10036
For the County
Brian C. Mitchell, Esq.
Suffolk County Attorney’s Office
100 Veterans Memorial Highway
P.O. Box 6100
Hauppauge, NY 11788
For the State
Toni Logue, Esq.
New York State Attorney General’s Office
200 Old Country Road, Suite 460
Mineola, NY 11501
Hirsch’s motion to file a second amended complaint.
following reasons, Plaintiff’s motion is GRANTED IN PART and
DENIED IN PART.
Plaintiff commenced this action pro se on June 25,
2008, alleging violations of his federal constitutional rights
pursuant to 42 U.S.C. § 1983.
(Docket Entry 1.)
On October 21,
2009, Plaintiff filed an Amended Complaint (the “First Amended
Bellamy, Katherine Pernat, and Stephen Weber1 (collectively, the
“State Defendants”) as Defendants.
(Docket Entry 33.)
The Allegations in the FAC
Against the County Defendants
In or around January 2002, Plaintiff was convicted by
a jury of two counts of Sexual Abuse in the First Degree, two
Unlawful Imprisonment in the First Degree and sentenced to a
objected to several portions of the Pre-Sentence Investigation
and Report (“PSIR”), which was prepared by Defendant Gilson, a
Stephen Weber identified himself as the First Amended
Complaint’s “John Doe.” (Docket Entry 41.)
Plaintiff was also charged with three additional counts of
Sexual Abuse in the First Degree as well as one count of
Aggravated Sexual Abuse in the Second Degree for allegedly
inserting his finger into his victim’s rectum. He was acquitted
of all of these charges. (FAC Ex. B.)
supervising probation officer in the Department.
(FAC § III.1.)
stricken from the PSIR, this order was never carried out.
Plaintiff penetrated his victim’s rectum, even though the jury
Subsequently, the Department forwarded the un-redacted PSIR to
the New York State Department of Correctional Services (“DOCS”),
The FAC asserts that the County Defendants’ failure to
investigate the veracity of the statements that they included in
the PSIR and their “willful disregard” of the trial judge’s
order to strike the “offending portions” violated his rights to
due process and equal protection.
(FAC § III.6.)
Against the State Defendants
During his incarceration, Plaintiff was required to
(FAC § III.12.)
The SOCP required participants to confess to
all offending behavior listed in their PSIRs.
(FAC § III.13.)
Thus, Defendant Pernat, a counselor at the facility, insisted
that Plaintiff admit to the conduct outlined in his “erroneous”
PSIR, including “horrendous crimes that he had not committed or
had been specifically found Not Guilty of committing.”
Confidentiality” (the “Waiver”), any confession that Plaintiff
made during counseling would be reported to “the appropriate law
enforcement agency,” subjecting him to further prosecution and
punishment for crimes he did not commit.
(FAC §§ III.15-16.)
Plaintiff’s ‘confession’ to the erroneous crimes listed in the
PSI Report, effectively precluded Plaintiff from participating
self-incrimination and his Fifth and Fourteenth Amendment rights
to due process and equal protection.
(FAC § III.18.)
Level Hearing, Defendant Weber, an assessor for the New York
State Board of Sex Offenders, added fifteen points to his score
for “refusal to accept responsibility and his expulsion from
stricken portions of Plaintiff’s PSIR, “as well as charges for
which the jury specifically found the Plaintiff not guilty.”
(FAC § III.27.)
The FAC asserts that such increase in his
threat-level assessment due to his failure to complete SOCP also
violated the Constitution’s double jeopardy clause.
Plaintiff then commenced an action in Suffolk County
Criminal Court, contesting Weber’s determinations.
5, 2007, Plaintiff won a partial victory when Suffolk County
Criminal Court Judge Barbara Kahn found that Weber “improperly
relied” on the stricken portions of the PSIR, and “improperly
awarded” Hirsch fifteen points for “Drug and Alcohol Abuse.”
(FAC §§ III.28-29.)
But Judge Kahn’s decision did not affect
Plaintiff’s loss of good-time credits or the additional fifteen
points that Weber added for refusing to accept responsibility
and being expelled from SOCP.
(FAC § III.31.)
fifteen points resulted in Plaintiff being designated a leveltwo
(FAC §§ III.31-32.)
(FAC § III.37.)
This, in turn, led to the
New York State Sex Offender Registry publishing “some of the
lies in the PSI Report on the Internet.”
(FAC § III.39.)
The State Defendants’ Motions to Dismiss
On December 24, 2009 and March 24, 2010, the State
Defendants filed motions to dismiss the FAC on the grounds of
sovereign immunity, collateral estoppel, and qualified immunity.
Hirsch v. Desmond, No. 08-CV-2660, 2010
WL 3937303, at *2 (E.D.N.Y. Sept. 30, 2010) (hereinafter “Hirsch
The Court also rejected their argument that Plaintiff was
level-two offender because, although Justice Kahn adjudicated
constitutional violations asserted in the FAC were never raised
or addressed by Justice Kahn.
Id. at *4.
The Court did find, however, that Plaintiff’s claims
against the State Defendants were barred by the doctrine of
good-time credits and a lower registry score on his making selfincriminating statements did not violate a clearly established
Id. at *6 (explaining that there is a circuit split on
‘clearly’ established’ Fifth Amendment right not to incriminate
himself as part of SOCP”).
The Court dismissed Plaintiff’s due
process claims because, although New York recognizes a liberty
interest in a prisoner not being assigned a higher level sexoffender
acquitted charges or Plaintiff’s failure to participate in SOCP
in calculating his threat-level assessment score.
Id. at *7.
The Court dismissed Plaintiff’s equal protection claims because
“the law is settled that the State has a legitimate interest in
misconduct as part of a therapeutic process designed to reduce
Plaintiff’s double jeopardy claims because neither sex offender
registration nor the withholding of good-time credit constitutes
punishment for the purposes of double jeopardy.
dismissed in their entirety.
III. The County Defendants’ Motion for Summary Judgment
On August 22, 2011, before conducting any discovery,
the County Defendants moved for summary judgment, arguing that
they are also entitled to dismissal on the grounds of absolute
or qualified immunity.
The Court granted summary judgment on
the claims against the County Defendants in their individual
capacities on the grounds of absolute immunity because probation
preparation and submission of PSIRs to the Courts.
Desmond, No. 08-CV-2660, 2012 WL 537567, at *3-4 (E.D.N.Y. Feb.
absolute and qualified immunity only protect individuals sued in
their individual capacities, the Court denied the motion as to
Id. at *4-5 & n.7.
The County Defendants
Plaintiff’s Proposed Second Amended Complaint
and, on April 20, 2012, filed the pending motion to file a
Proposed Second Amended Complaint (“SAC”) reasserts due process
and equal protection claims against the County Defendants in
their official capacities arising out of their failure to verify
the accuracy of the statements contained in the PSIR.
another unnamed SOCP counselor in their individual capacities
for violations of due process and equal protection.
of the allegations in the SAC mirror those in the FAC, there is
one major difference.
The SAC alleges that Pernat not only
required Plaintiff to confess to the crimes of which he was
convicted and the other crimes erroneously included in the PSIR,
but she also required him to confess to a fabricated rape claim:
Upon information and belief, after
sentencing and prior to his meeting with
Defendant Pernat . . . , Pernat prepared a
document stating that Hirsch was responsible
for raping, stalking, and menacing his
victim, in addition to the sex abuse by
forcible touching he was charged with and
Plaintiff was never charged
or convicted of rape, stalking or menacing.
stalking and menacing were included in
Pernat’s document because of the three
unverified and unsupported sections of the
PSIR that were not stricken by the Probation
Officers in a timely manner pursuant to [the
trial judge’s] order.
Pernat also fabricated an allegation of rape
whatsoever, despite the fact that Hirsch was
never charged or convicted of rape and the
PSIR did not include any such allegation.
(SAC ¶¶ 14-16.)3
The SAC asserts that Pernat’s “attempt to
force Hirsch to confess to the crimes of rape, menacing, and
(SAC ¶¶ 39-41.)
The County Defendants have consented to the filing of
the SAC (Docket Entry 77); thus, to the extent that the SAC
Plaintiff pleads in the alternative that such document was
prepared by the new John Doe defendant “with Pernat’s knowledge
that such allegations had no basis whatsoever.” (SAC ¶ 17.)
Defendant Pernat, on the other hand, opposes in a one-
and-a-half page letter, stating that the motion should be denied
because “the Amended Complaint and the proposed Second Amended
Complaint basically set forth the same allegations against Ms.
previously led to her dismissal from this action.”
review before addressing the merits of Plaintiff’s motion.
Standard of Review
Courts should grant leave to amend “when justice so
FED. R. CIV P. 15(a)(2).
Leave to amend should be
granted unless there is evidence of undue delay, bad faith,
undue prejudice to the non-movant, or futility.
See Milanese v.
determine whether an amended claim is futile, courts analyze
dismiss under Federal Rule of Civil Procedure 12(b)(6).
Dougherty v. Town of N. Hempstead Bd. of Zoning Appeal, 282 F.3d
83, 88 (2d Cir. 2002).
To survive a Rule 12(b)(6) motion, a plaintiff must
plead sufficient factual allegations in the complaint to “state
a claim to relief that is plausible on its face.”
Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed.
2d 929 (2007).
The complaint does not need “detailed factual
allegations,” but it demands “more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action
will not do.”
Id. at 555.
In addition, the facts pled in the
complaint “must be enough to raise a right to relief above the
Determining whether a plaintiff has
met her burden is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common
Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937,
173 L. Ed. 2d 868 (2009); accord Harris v. Mills, 572 F.3d 66,
elements of a cause of action, supported by mere conclusory
statements, do not suffice.”
Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555).
Plaintiff’s Motion to Amend
Defendant Pernat argues that the equal protection and
due process claims asserted against her in the SAC are futile
because they are barred by the doctrine of qualified immunity
for the reasons articulated in Hirsch I.
The Court disagrees.
The allegations in the SAC are different than the allegations in
In the FAC, Plaintiff alleged that Defendant Pernat
insisted that he confess to all of the allegations in the PSIR,
whether he was charged with and/or convicted of those crimes or
(FAC §§ III.13-14.)
In the SAC, Plaintiff now alleges
that Defendant Pernat also required him to confess to a crime
that she fabricated--i.e., a crime that was not included or
previously rule on this claim, and it is not barred by Hirsch I.
doctrine of qualified immunity at this stage of the litigation4
warrants further consideration.
A government official sued in
(1) if the conduct attributed to him is not
prohibited by federal law; or (2) where that
conduct is so prohibited, if the plaintiff’s
right not to be subjected to such conduct by
the defendant was not clearly established at
the time of the conduct; or (3) if the
legal[ly] reasonable . . . in light of the
legal rules that were clearly established at
the time it was taken.
X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 65-66 (2d Cir. 1999)
(alterations and omission in original) (internal quotation marks
The Court notes, as it did in Hirsch I, that because qualified
immunity “necessarily involves a fact-specific inquiry, [i]t is
generally premature to address the defense . . . in a motion to
dismiss.” Maloney v. Cnty. of Nassau, 623 F. Supp. 2d 277, 292
(E.D.N.Y. 2007) (alteration in original) (internal quotation
marks and citation omitted); accord Hirsch I, 2010 WL 3937303,
claims repled against Defendants Pernat and Doe separately.
Substantive Due Process
U.S. CONST. amend. XIV, § 1.
Thus, to establish a
Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 503 (2d Cir.
2001); Toussie v. Cnty. of Suffolk, 806 F. Supp. 2d 558, 579
constitutionally protected liberty interest in the opportunity
to earn good-time credits.
Hirsch I, 2010 WL 3937303, at *7;
see also Abed v. Armstrong, 209 F.3d 63, 66-67 (2d Cir. 2000);
cf. Fifield v. Eaton, 669 F. Supp. 2d 294, 297 (W.D.N.Y. 2009)
interest in a prisoner not being assigned a higher level sex
offender status than appropriate.”
Hirsch I, 2010 WL 3937303,
at *7; see also People v. David W., 95 N.Y.2d 130, 137, 711
N.Y.S.2d 134, 138-39, 733 N.E.2d 206, 210-11 (2000) (stating
sexually violent predator is substantial”).
establish a violation of substantive due process, Plaintiff
must show that the Defendants infringed that [liberty] interest
Toussie, 806 F. Supp. 2d at 583; see also Natale
v. Town of Ridgefield, 170 F.3d 258, 262 (2d Cir. 1999) (“For
state action to be taken in violation of the requirements of
substantive due process, the denial must have occurred under
beneath the constitutional due process threshold,” any actions
“deliberately intended to injure in some way unjustifiable by
any government interest is the sort of official action most
likely to rise to the conscience-shocking level.”
Sacramento v. Lewis, 523 U.S. 833, 849, 118 S. Ct. 1708, 140 L.
Ed. 2d 1043 (1998) (citations omitted).
Pernat’s insistence that Plaintiff confess to a crime that she
knowingly fabricated, which resulted in his classification as a
“outrageous” to survive a motion to dismiss.
See, e.g., Kearney
v. Goord, No. 09-CV-0679, 2011 WL 1260076, at *7 (W.D.N.Y. Mar.
4, 2011) (denying a motion to dismiss a substantive due process
claim arising out of fabricated charges of misconduct filed by
exercising his constitutional rights); Camac v. Long Beach City
Sch. Dist., No. 09-CV-5309, 2011 WL 3030345, at *4, 14 (E.D.N.Y.
July 22, 2011) (denying a motion to dismiss a substantive due
process claim arising out of a school’s knowingly false report
to the police that a student attempted suicide, which resulted
in the student’s commitment to a hospital against the parents’
“clearly established” at the time in question.
F.3d at 66.
See X-Men, 196
In determining whether conduct giving rise to a
Supreme Court and Second Circuit precedent existing at the time
3937303, at *6 (alteration in original) (quoting Moore v. Vega,
established if its “‘coutours [are] sufficiently clear that a
violates that right.’”
Id. (alteration in original) (quoting
Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L.
Ed. 2d 523 (1987)).
“This is not to say that an official action
is protected by qualified immunity unless the very action in
question has previously been held unlawful, but it is to say
that in the light of pre-existing law the unlawfulness must be
Anderson, 483 U.S. at 640 (citations omitted).
Pernat’s alleged actions was “apparent” in 2006.
is no clearly established law precluding the consideration of
acquitted charges in determining a sex offender’s threat level
(and thus, in forcing a sex offender to discuss those acquitted
charges in treatment), see Hirsch I, 2010 WL 3937303, at *7, the
completion of such treatment on confessing to such fabricated
crime was “apparent,” see Zahrey v. Coffey, 221 F.3d 342, 349
(2d Cir. 2000) (finding that “there is a constitutional right
not to be deprived of liberty as a result of the fabrication of
evidence by a government officer”).
Any argument that Pernat’s
actions may have been “objectively reasonable” does not appear
grounds is inappropriate at this stage of the litigation.
affirmative defense may be raised by a pre-answer motion to
seeking leave to replead a substantive due process claim against
Pernat and Doe, the motion is GRANTED.
Procedural Due Process
prevail on a ‘stigma plus’ claim, a plaintiff must show (1) the
utterance of a statement sufficiently derogatory to injure his
or her reputation, that is capable of being proven false, and
that he or she claims is false, and (2) a material state-imposed
burden or state-imposed alteration of the plaintiff’s status or
Sadallah v. City of Utica, 383 F.3d 34, 38 (2d Cir.
2004) (internal quotation marks and citation omitted).
Segal v. City of N.Y., 459 F.3d 207, 213 (2d Cir. 2006)
procedural due process claims, however, it is not enough that
the plaintiff . . . demonstrate the deprivation of her liberty
interest; in order to bring a successful stigma-plus claim, the
plaintiff must also demonstrate that her liberty was deprived
without due process of law.”); see also DiBlasio v. Novello, 344
F.3d 292, 302 (2d Cir. 2003); Valmonte v. Bane, 18 F.3d 992,
1002 (2d Cir. 1994).
Assuming, arguendo, that the allegations in the SAC
state a stigma-plus claim, the Court finds, as it did in Hirsch
I, that Plaintiff has been afforded sufficient process.
I, 2010 WL 3937303, at *7.
Plaintiff filed a grievance after
being expelled from SOCP, which was denied, and he was afforded
the opportunity to appeal the denial.
(SAC ¶ 20.)
also had a hearing before the Time Allowance Committee before
his good-time credits were withheld (SAC ¶ 21; FAC Ex. D) and a
Sex Offender Level Hearing to challenge Weber’s initial threatlevel
challenged again in Suffolk County Criminal Court (SAC ¶¶ 2425).
As the SAC contains no allegations regarding the adequacy
of this process, to the extent that Plaintiff seeks to amend the
FAC to assert a procedural due process claim against Pernat and
Doe, the motion must be DENIED.
The SAC also purports to assert an equal protection
claim against Pernat and Doe.
“The Equal Protection Clause of
the Fourteenth Amendment commands that no State shall deny to
any person within its jurisdiction the equal protection of the
similarly situated should be treated alike.”
City of Cleburne
v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440, 105 S. Ct.
3249, 87 L. Ed. 2d 313 (1985) (internal quotation marks and
suspect class, see Lee v. Governor of N.Y., 87 F.3d 55, 60 (2d
Cir. 1996) (“[P]risoners either in the aggregate or specified by
offense are not a suspect class . . . .”), to plead an equal
protection claim, he must assert that he was treated differently
from similarly situated individuals and either (i) that “such
differential treatment was based on impermissible considerations
such . . . as a malicious or bad faith intent to injure a
person” (“selective prosecution” equal protection) or (ii) that
there was “no rational basis for the difference in treatment”
(“class-of-one” equal protection), Cobb v. Pozzi, 363 F.3d 89,
110 (2d Cir. 2004).
As the SAC does not identify any similarly-
situated individuals--let alone any similarly-situated inmates
claim fails as a matter of law.
See, e.g., MacPherson v. Town
pled as a selective enforcement claim or a class-of-one claim”
because the complaint failed to “identify any comparators or
similarly situated entities at all”).
For the foregoing reasons, Plaintiff’s motion to amend
is GRANTED IN PART and DENIED IN PART.
To the extent that it
seeks to plead due process and equal protection claims against
the County Defendants in their official capacities, the motion
is GRANTED on consent.
To the extent that it seeks to replead
due process and equal protection claims against Defendant Pernat
and a new John Doe Defendant in their individual capacities, the
motion is GRANTED IN PART and DENIED IN PART:
amend the FAC to assert only a substantive due process claim.
The Clerk of the Court is directed to (i) docket pages
2 through 13 of Docket Entry 74 as a separate docket entry
titled, “Second Amended Complaint”; (ii) reinstate Pernat as a
Defendant in this action; and (iii) add a new John Doe Defendant
to the caption.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
February 7, 2013
Central Islip, NY
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