Dorsey v. Paterson et al

Filing 17

ORDER: ORDERS that 16 Report and Recommendation is adopted in its entirety and 7 Motion to Dismiss is granted. Signed by U.S. District Judge Mae A. D'Agostino on 8/5/11. {order served via regular mail on all non-ecf parties}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
THOMAS DORSEY,
Plaintiff,
vs.

9:10-cv-692
(MAD/DRH)

ANDREW M. CUOMO, Governor; ERIC T.
SCHNEIDERMAN, Attorney General; and
MICHAEL HOGAN, Dr., Commissioner of Mental
Health,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

THOMAS DORSEY
1363 Echo Lake Lane
Rocky Mount, North Carolina 27803
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for defendants

DOUGLAS J. GOGLIA, AAG

Mae A. D'Agostino, U.S. District Judge:
ORDER
Plaintiff pro se, formerly an inmate in the custody of the New York State Department of
Correctional and Community Supervision ("DOCCS") and the New York State Office of Mental
Health ("NYSOMH"), brings this action pursuant to 42 U.S.C. § 1983, alleging that defendants
violated his rights under the Fourteenth Amendment of the United States Constitution. See Dkt.
No. 1. Specifically, plaintiff claims that his due process rights were violated because the

provisions of New York Mental Health Law §§ 10.03(S), 10.06(J), and 10.07(C), and New York
Penal Law § 130.91 are unconstitutionally vague.1
At plaintiff's probable cause hearing, it was determined that the actions that led to
plaintiff's imprisonment were sexually motivated and, therefore, plaintiff was sent to a secure
treatment facility to await his civil commitment trial. See Dkt. No. 1 at ¶ 13. Plaintiff filed the
present action while awaiting his civil commitment trial.

Article 10 of the New York Mental Health Law, commonly referred to as the Sex
Offender Management and Treatment Act ("SOMTA"), became effective on April 13, 2007.
Article 10 created a new procedure for civilly committing sex offenders nearing the end of their
prison terms. Under Article 10, when a sex offender is nearing release, DOCS must, "at least one
hundred twenty days prior to the person's anticipated release," give notice to the state attorney
general and commissioner of mental health. N.Y. Mental Hyg. Law § 10.05(b). The
commissioner of mental health is then authorized to designate multidisciplinary staff to review
the individual's records to determine whether he should be referred to a case review team for
evaluation. See N.Y. Mental Hyg. Law § 10.05(d). If the individual is referred to a case review
team, notice must be provided to him. See N.Y. Mental Hyg. Law § 10.05(e). If the case review
team finds that the individual is a "sex offender requiring civil management," it must notify the
attorney general and the individual in writing. See N.Y. Mental Hyg. Law § 10.05(g). The
attorney general may then file a petition in the supreme court or county court of the county in
which the individual is located, seeking to detain the individual in a psychiatric institution. See
N.Y. Mental Hyg. Law § 10.06(a). Within thirty days of the filing of a petition, a court shall
conduct a probable cause hearing. See N.Y. Mental Hyg. Law § 10.06(g). At the probable cause
hearing, a judge must determine whether there is probable cause to believe that the individual
may have a mental abnormality. No finding of current dangerousness is required. See N.Y.
Mental Hyg. Law § 10.06(k). If the judge finds probable cause, the individual "shall not be
released pending the completion of [the] trial." Id.
1

If the court finds probable cause to detain the individual, a civil commitment trial must be
held within sixty days of the probable cause hearing. See N.Y. Mental Hyg. Law § 10.07(a). At
the trial, the jury shall determine by clear and convincing evidence whether the individual is a
detained sex offender who suffers from a mental abnormality. See N.Y. Mental Hyg. Law §
10.07(d). If the jury determines that the individual is a detained sex offender who suffers from a
mental abnormality, "the court shall consider whether the [individual] is a dangerous sex offender
requiring confinement or a sex offender requiring strict and intensive supervision." N.Y. Mental
Hyg. Law § 10.07(f). The court may then either order the individual committed to a secure
treatment facility or subject him to a regimen of strict and intensive supervision and treatment.
See id.
2

On February 23, 2011, plaintiff's civil commitment trial concluded, with the jury finding
that there was no clear and convincing evidence to support the conclusion that plaintiff's felony
conviction was sexually motivated; and, therefore, plaintiff was released. See Dkt. No. 14-1 at 12. The Attorney General did not appeal the decision. See id. at 2.
Plaintiff filed the present action while awaiting his civil commitment trial. On March 4,
2011, after plaintiff's release, defendants filed an amended letter motion seeking dismissal of this
action as moot. See Dkt. No. 14.
In a Report-Recommendation and Order dated July 14, 2011, Magistrate Judge Homer
held that, "[w]hile [plaintiff] was initially placed at the secure facility after the findings in his
probable cause hearing and throughout the duration of his civil confinement hearing, he was
ultimately found not to have committed a sexually motivated felony. Thus, [plaintiff] did not
require civil confinement or further treatment and was released. Because he was never placed in
civil confinement, his claims relating to the constitutionality of SOMTA are moot and should be
dismissed." See Dkt. No. 16 at 7-8 (footnote omitted).2 Plaintiff failed to object to Magistrate
Judge Homer's Report-Recommendation and Order.
When a party files specific objections to a magistrate judge's report-recommendation, the
district court makes a "de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). When a party
fails to make specific objections, however, the court reviews the magistrate judge's report for
clear error. See Farid v. Bouey, 554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008); see also Gamble v.

Throughout his complaint, plaintiff makes clear that he "is not attempting to appeal his
probable cause hearing." See Dkt. No. 1 at ¶ 17. Rather, plaintiff is asserting that the "statutory
provisions under MHL Article 10 and Penal Law 130.91 . . . [are] void for vagueness[.]" See id. at
¶ 16.
2

3

Barnhart, No. 02CV1126, 2004 WL 2725126, *1 (S.D.N.Y. Nov. 29, 2004) (citations omitted).
After the appropriate review, "the court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).
Having reviewed Magistrate Judge Homer's July 14, 2011 Report-Recommendation and
Order and the applicable law, the Court concludes that Magistrate Judge Homer correctly
determined that the Court should grant defendants' motion to dismiss the complaint as moot. See
Ashford v. Spitzer, No. 9:08-cv-1036, Dkt. No. 136, at 12 (N.D.N.Y. Dec. 8, 2010) (dismissing
the plaintiff's claims as moot because he was not placed in civil confinement).3 Since plaintiff
does not challenge the probable cause hearing that led to his detention pending the civil
commitment trial and because the jury found in plaintiff's favor (finding that clear and convincing
evidence did not support a finding that plaintiff's felony conviction was "sexually motivated"), the
Court finds that plaintiff's case is now moot.
Accordingly, the Court hereby

At the time of plaintiff's probable cause hearing through the conclusion of his civil
commitment trial on February 23, 2011, no court had issued a final order finding the statutes at
issue here unconstitutional. Although the Court in Mental Hygiene Legal Service v. Cuomo, ___
F. Supp. 2d ___, 2011 WL 1344522 (S.D.N.Y. Mar. 29, 2011), did find sections 10.06(k),
10.07(c), and 10.07(d) unconstitutional after plaintiff's civil commitment trial, see id. at *18,
section 10.07(c) is the only provision found unconstitutional that plaintiff challenges here.
Section 10.07(c) of the New York Mental Health Law relates simply to the burden of proof that
the government must meet in order to succeed at a civil commitment trial. In finding the section
unconstitutional, the court simply held that "due process requires that sexual motivation be
proven beyond a reasonable doubt," and that "Section 10.07(c) is facially unconstitutional in
requiring such a determination to be made only by 'clear and convincing evidence.'" Id. at *16*17.
3

In the present matter, however, the jury found that there was no clear and convincing
evidence to support the conclusion that plaintiff's felony conviction was sexually motivated; and,
therefore, plaintiff was released. See Dkt. No. 14-1 at 1-2. Since plaintiff does not challenge his
probable cause hearing, the fact that section 10.07(c) was found unconstitutional has no bearing
on this case.
4

ORDERS that Magistrate Judge Homer's July 14, 2011 Report-Recommendation and
Order is ADOPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that defendants' motion to dismiss the complaint (Dkt. Nos. 7, 14) is
GRANTED; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on all parties in
compliance with the Local Rules; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in defendants' favor and close
this case.

IT IS SO ORDERED.
Dated: August 5, 2011
Albany, New York

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