Plaintiffs, for themselves and all other members of the class hereinafter described, allege: COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1. This is a CLASS ACTION Civil Rights claim by Plaintiffs, on their own behalf and on behalf of all others similarly situated, under the provisions of Rule 23(a) and Rule 23(b)(1), 23(b)(2) and 23(b)(3) of the Federal Rules of Civil Procedure and 42 USC § 1983. Plaintiffs allege violation of their rights under the First, Eighth and Fourteenth Amendments of the United States Constitution and seek a declaratory judgment and injunctive relief, including a Temporary Restraining Order, Preliminary and Permanent Injunctions against the defendants, to prevent the imminent violation of constitutionally protected rights to which the state has and will subject the plaintiffs. I. JURISDICTION 2. This is a civil action authorized by 42 U .S.C. § 1983 to redress the deprivation, under color of State law, of rights, privileges and immunities secured by the Constitution of the United States. 3. The Court has jurisdiction under 28 U.S.C. §§ 1331(a) and 1343; the Constitution of the United States; and supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a), for pendent state law claims. 4. The Court also has jurisdiction on Plaintiffs' right to seek redress of grievances against the government under the First Amendment to the United States Constitution. 5. The Court has jurisdiction to review the constitutionality of State Statutes under the Fourteenth Amendment of the United States Constitution. 6. Plaintiff(s) seek declaratory relief pursuant to 28 U.S.C.§ 2201 and 2202. II. PARTIES 7. Plaintiffs P. T., and W. W., and all others in the past, presently or in the future, similarly situated, including 'special needs' mental health inmates, are, and were at all times mentioned herein, prisoners of the State of New Jersey, in the custody of the New Jersey Department of Corrections. They are currently confined to the Adult Diagnostic and Treatment Center (hereinafter A.D.T.C.), in Avenel, Middlesex County, State of New Jersey. 8. Defendant DEVON BROWN is the Commissioner of the New Jersey Department of Corrections (hereinafter "DOC"). Pursuant to the Administrative Procedure Act (hereinafter "APA"), N.J.S.A. 52:14B-1 to -12; N.J.S.A.30:1B- 1 et seq., he is responsible for promulgation of all laws, regulations and practices for the overall operation of the DOC, including medical/psychological policies and practices throughout the DOC, of which the A.D.T.C. is a part, and is also responsible for implementing "agency" obligations as delineated in N.J.S.A. 30:4-27 et seq. As such, during the dates and times mentioned herein, he was responsible for and participated in the deprivations visited upon Plaintiffs by any actor, agent of the state, contractor or sub-contractor of services to DOC. 9. Defendant RICHARD CEBASCO is the Health Service Unit Director of Psychological Services for the DOC, and is responsible for providing professional review, evaluation and guidance for all DOC psychological programs and activities, pursuant to N.J.A.C. 10A: 16-4.1, and monitors the performance and mental health services of the DOC and Correctional Medical Services, Inc. with whom the DOC has a contract as detailed herein below. As such, during the dates and times mentioned herein, he was responsible for and participated in, the deprivations visited upon Plaintiffs by any actor, agent of the state, contractor or sub-contractor of services to DOC. 10. Defendant THOMAS FARRELL is the Director of Medical Services for the DOC, and is responsible for formulating, implementing and administering the polices and customs of Correctional Medical Services, Inc., as well as overseeing the performance of Correctional Medical Services, Inc. in fulfillment of its contractual obligations to DOC, pursuant to N.J.A.C. 10A:162.2. As such, during the dates and times mentioned herein. he was responsible for and participated in the deprivations visited upon Plaintiffs by any actor, agent of the state, contractor or sub-contractor of services to DOC. 11. Defendant GRACE ROGERS is the Administrator of A.D.T.C. She is responsible for the operation of A.D.T.C., for supervision of staff, and for the welfare of all the inmates at A.D.T.C. As Administrator, she is not licensed or certified as a medical or mental health professional. She is also the guardian of all inmate records retained at A.D.T.C. As such, during the dates and times mentioned herein, she was responsible for and participated in the deprivations visited upon Plaintiffs by any actor, agent of the state, contractor or sub-contractor of services to DOC. 12. Defendant NANCY GRAFFIN is the Director of Treatment Services for A.D.T.C. and a program administrator for Public Safety Concepts. She is responsible for insuring that all mental/psychological conditions of prisoners at A.D.T.C. are properly treated, as required by N.J.A.C. 10:16-4.2B. 1-2, insuring adequate equitable and consistent mental health services; and, providing a written policy and procedural mechanism approved by DOC for mental health services, staff practices and functions within the correctional facility. As a licensed psychologist, she also assumed a duty of care responsibility to those Plaintiffs and class members to whom she provided direct treatment services, and to those to whom services were provided by professional staff under her direct supervision and control. As such, during the dates and times mentioned herein. she was responsible for and participated in the deprivations visited upon Plaintiffs by any actor, agent of the state, contractor or sub-contractor of psychological and psychiatric treatment services to A.D.T.C. 13. Defendant ROGER HARRIS is a licensed psychiatrist providing services to Public Safety Concepts, Inc. as an independent contractor, and serves as a member of the Plaintiffs' Treatment Team at the A.D.T.C., and participates in the Treatment Program. As a licensed physician and psychiatrist, he also assumed a duty of care responsibility to those Plaintiffs and class members to whom he provided direct treatment services. Dr. Harris also performed a screening evaluation for civil commitment upon Plaintiff P.T.. As such, during the dates and times mentioned herein, he was responsible for and participated in the deprivations visited upon Plaintiffs. 14. Defendant VIVIAN SHNAIDMAN is a licensed psychiatrist providing services to Public Safety Concepts, Inc. as an independent contractor, and serves as a member of the Plaintiffs' Treatment Team at the A.D.T.C., and participates in the Treatment Program. As a licensed physician and psychiatrist, she also assumed a duty of care responsibility to those Plaintiffs and class members to whom she provided direct treatment services. Dr. Shnaidman also performed a screening evaluation for civil commitment upon Plaintiff P.T.. As such, during the dates and times mentioned herein, she was responsible for and participated in the deprivations visited upon Plaintiffs. 15. Defendant LAWRENCE SIEGEL is a licensed psychiatrist providing services to Public Safety Concepts, Inc. as an independent contractor, and serves as a member of the Plaintiffs' Treatment Team at the A.D.T.C., and participates in the Treatment Program. As a licensed physician and psychiatrist, he also assumed a duty of care responsibility to those Plaintiffs and class members to whom he provided direct treatment services. Dr. SIEGEL also performed a screening evaluation for civil commitment upon Plaintiff P.T.. As such, during the dates and times mentioned herein, he was responsible for and participated in the deprivations visited upon Plaintiffs.
16. Defendant DIANE SCHAUPP is a licensed psychologist providing services to
Public Safety Concepts, Inc. as an independent contractor, and serves as a
member of the Treatment Team at the A.D.T.C. for named Plaintiffs P. T. and W.
W., as well as numerous class members, and participates in the Treatment
Program. As a licensed psychologist, she also assumed a duty of care
responsibility to those Plaintiffs and class members to whom she provided direct
treatment services. Dr. Schaupp participates in pre-screening evaluations of
Plaintiffs utilizing scientifically validated scales in support of
recommendations for civil commitment screening, including such an evaluation
that has been performed 17. Defendant CORRECTIONAL MEDICAL SERVICES, Inc. (hereinafter "CMS") is authorized to do business in New Jersey with corporate offices in Mt. Laurel, and as such is responsible for the policies, practices and customs of CMS. CMS has been contracted by DOC to provide all medical and mental health diagnostic and treatment services throughout all New Jersey State prisons. Said contract establishes CMS's ultimate responsibility for fulfillment of all requirements of the contract, including those assigned to any subcontractors, such as Public Safety Concepts, with whom CMS may establish a contractual relationship. As such, during the dates and times mentioned herein, CMS was responsible for and participated in the deprivations visited upon Plaintiffs by any actor of CMS, agent of CMS or subcontractor of services to CMS. 18. Defendant PUBLIC SAFETY CONCEPTS (hereinafter "PSC") is authorized to do business in New Jersey, and is serviceable here at A.D.T.C. through Defendant NANCY GRAFFIN, who is personally responsible for formulating, implementing and administering the policies, practices and customs of PSC. PSC administers all aspects of the therapeutic treatment program at the A.D.T.C. and oversees the provision of psychiatric services and all policies and procedures governing treatment and psychiatric services to the Plaintiffs. PSC is responsible for supervising Defendant GRAFFIN and ensuring that all services are carried out, consistent with its agreement with CMS, and consistent with professional standards of practice in the fields of psychiatry and psychology. As such, during the dates and times mentioned herein, PSC was responsible for and participated in the deprivations visited upon Plaintiffs by any actor of PSC, agent of PSC, or any independent contractor of services to PSC. 19. John and Jane Does include members of the A.D.T.C. Inmate Release Committee, in their role of reviewing and evaluating psychological treatment reports and other medical and mental health documents whereby they make decisions as to potential present and future dangerousness of soon-to-be-released inmates, and who are acting without authority of law, and thus engaging in an arbitrary and capricious abuse of power as vigilante citizen's group hiding behind the cloak of color of state law. 20. John and Jane Does include any other staff members, currently unidentifiable, who contribute to or participate in actions that, during the dates and times mentioned herein, resulted in the deprivations visited upon Plaintiffs by their commission and omissions with respect to the process of referral for screening for civil commitment, screening for civil commitment, or presentment of clinical certificates in support of an order for temporary civil commitment. 21. Defendants Brown, Cebasco, Farrell, and Rogers are being sued in their individual and official capacities. 22. Defendants Graffin, Harris, Siegel, Shnaidman, Schaupp, CMS and PSC are being sued in their individual capacities. 23. Defendants John and Jane Does who are employees of the State of New Jersey Department of Corrections, are being sued in their individual and official capacities. 24. Defendants John and Jane Does who are contactors, sub-contractors, or independent contractors to DOC, CMS or PSC are being sued in their individual capacities. 25. At all times material to this complaint Defendants Brown, Farrell, Cebasco, Rogers and John and Jane Does who were or are employed by the DOC. were acting, and continue to act, under color of state law. III. CLASS ACTION ALLEGATIONS 26. The class so represented by plaintiffs in this action, and of which plaintiffs are themselves members consists of the class of persons who have been convicted of sexual offenses as delineated in N.J.S.A. 30:4-27.26 and who are currently confined at the Adult Diagnostic and Treatment Center administered by the New Jersey Department of Corrections, and who are thus subject to screening for temporary commitment under N.J.S.A. 30:4-27 et seq., as well as those former inmates of the New Jersey Department of Corrections who have been committed under N.J.S.A. 30:4-27 to the Special Treatment Unit at Kearny based on practices alleged in this complaint in violation of medical/psychiatric/psychological standards of care and ethics. 27. The exact number of members of the class, as hereinabove identified and described, is not known, but it is estimated that there are not less than 500 members. The class is so numerous that joinder of individual members herein is impracticable.
28. There are common questions of law and fact in the action that relate to and
affect the rights of each member of the class and the relief sought is common
to the entire class, namely:
29. The claims of plaintiffs, who are representatives of the class herein are typical of the claims of the class, in that the claims of all members of the class, including plaintiffs, depend on a showing of the commissions and omissions of defendants giving rise to the right of plaintiffs to the relief sought herein. There is no conflict as between any individual named plaintiff and other members of the class with respect to this action, or with respect to the claims for relief herein set forth. 30. The named plaintiffs are the representative parties for the class, and are able to, and will, fairly and adequately protect the interests of the class. Plaintiffs seek appointment of counsel who is competent and experienced in the prosecution of class action litigation. Accompanying this Complaint are petitions for in forma pauperis with supporting declaration. 31. This action is properly maintained as a class action in that the prosecution of separate actions by individual members of the class would create a risk of varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the defendants herein, all of whom oppose the class, as has occurred in the past wherein defendants dodged a claim by engaging in conduct that disenfranchised individual plaintiffs to the action, as Plaintiffs allege in paragraphs 45 through 47 hereinafter has happened in response to previous attempts by class members to seek injunctive relief and damages. 32. Moreover, this action is properly maintained as a class action inasmuch as the defendants herein, all of whom oppose the class, have acted or refused to act, as hereinafter more specifically stated, on grounds which are applicable to the class, and have by reason of such conduct, made appropriate final injunctive relief or corresponding declaratory relief with respect to the entire class, as sought in this action. 33. Finally, this action is properly maintained as a class action inasmuch as the questions of law and fact common to the members of the class predominate over any questions affecting only individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. In support of the foregoing allegations, plaintiff shows the following facts. IV. FACTS 34. The plaintiffs make the following statements of fact. The statement of facts are based on information and belief, except for those allegations pertaining to named plaintiffs which are based on knowledge. 35. Plaintiffs were sentenced to the Adult Diagnostic & Treatment Center for specialized treatment for their compulsive and repetitive sexual disorders. 36. The named Plaintiffs and on information and belief, many if not most of the class, suffer from a mental disorder that is recognized and defined as a mental disorder in the Diagnostic and Statistical Manual of Mental Disorders-Fourth Edition (hereinafter, "DSM-IV") of the American Psychiatric Association. 37. Shortly after named Plaintiffs arrived at A.D.T.C, they began a program of specialized treatment by entering and participating in various psychotherapy and educational process groups, which are typical of ADTC inmates. 38. Plaintiffs P.T., and W.W. have satisfactorily completed Psychoeducational Level I and Level II groups as well as participated in Level III Process Groups, and Level IV Process Groups in Therapeutic Communities. 39. Most members of the class, except for those who have been housed at A.D.T.C. for less than 18 months, have completed Psycho educational Level I and Level II groups and are currently receiving treatment in Level III or Level IV process groups. 40. Level III Process Groups are psychotherapy groups of approximately 10-15 men in which the dynamics of sex offending behavior are explored and group participants identify the components of the sexual offending cycle and how to interrupt those cycles so as to prevent future offending behavior. 41. The Level IV Therapeutic Community groups (hereinafter T.C.) are designed for inmates who have mastered the basic concepts and dynamics of sex offending stressed in Level III Process Groups and who are believed to be ready for an extensive, 24-7 treatment program, with movement into a T.C. based on recommendation of the inmate's treatment team. 42. The named Plaintiffs have also successfully completed various treatment modules designed to reduce the risk of sex offender relapse. 43. The named Plaintiffs state that the level and degree of participation in the treatment program detailed herein is typical of class members who are nearing the end of their sentence at A.D.T.C, and for whom screening for commitment is an imminent risk. 44. A substantial number of class members committed their offenses after 1994, thus subjecting them to the Community Supervision for Life Provisions of N.J.S.A. 2C:43-6.4, by which terms, they will be bound by a written parole-like plan governing their employment, housing arrangements, social activities, and freedom of movement around the state, as well as notification of individuals with whom they come into regular contact as to their status as a convicted sex offender (their terms of Community Supervision are ultimately decided upon by the assigned parole officer and may vary depending on the nature of the offense and the offender.) 45. On information and belief, similarly named defendants in a compliant filed by former inmate Peter Lesando in February of 2002 in Federal District Court, asserting causes of action substantially similar to those contained herein, reversed a prior determination to seek civil commitment of inmate Lesando, and released him, unrestricted, into the community, thus mooting the complaint just prior to Lesando moving to amend the complaint to a class action complaint. 46. On information and belief, similar defendants were about to be named in a class action complaint to be filed by inmate Michael Newman in June of 2002, who sought to enjoin the state from seeking to civilly commitment him and others similarly situated on the basis of unconstitutional practices similar in kind to the allegations contained herein, however, was transferred to the Special Treatment Unit (hereinafter "STU") at Kearny pursuant to a temporary order of commitment, in advance of his release date, and on the day before he planned to file his complaint. 47. As a result of the actions of the defendants, Lesando and Newman's attempts at seeking relief in the Federal Courts were thwarted either by mooting the claim, as occurred with Lesando, or by removing the complainant to a facility that restricts pro se litigation and denies publicly financed assistance for 42 U.S.C. § 1983 claims (effectively eliminating access to the federal courts on a § 1983 claim for an indigent resident of STU). 48. On or about 3/26/2003, Dr. Diane Schaupp, psychologist, and Dr. Roger Harris, members of the treatment team for 1 Wing T.C., described the existence of the Inmate Release Committee (hereinafter "IRC") as an institutional body charged with reviewing each inmate prior to his release to determine whether or not the inmate should be screened for possible civil commitment under the Sexually Violent Predators Act, N.J.S.A. 30:4-27.24 et seq. (hereinafter "SVPA"). 49. Drs. Schaupp and Harris, at this same meeting, identified the composition of the Inmate Release Committee as being headed by Administrator Grace Rogers and various department heads and staff members, including, among others, staff from Kitchen Services, Maintenance and Custody, the majority of whom are laypersons and are unlicensed, untrained and unqualified as social workers, psychologists, physicians or psychiatrists. 50. Subsequently, on or about April 1, 2003, Dr. Schaupp corrected her prior statement, noting that the IRC was made up not of department heads, but the identification officer, various administrative staff, social worker and classification officer. 51. Dr. Schaupp and Dr. Harris, at this same meeting, described Dr. Harris's role on the Treatment Team as one which actively involves him in the treatment program of the inmates on the wing. 52. On information and belief, by virtue of his participation on the treatment team in reviewing inmate progress, as well as his participation in the final termination report, Dr. Harris operates with inmates on the wing, including Plaintiffs P.T. and W.W., within a Physician/Patient relationship, with the concomitant expectation that communications involving Plaintiffs diagnosis, care and treatment are privileged under N.J.S.A. 2A:84A-22.2 and 22.3. 53. Plaintiffs' expectation of confidentiality extends to communications with psychologists and social workers given the privilege extended to such communications under N.J.S.A. 45:14B-28 and N.J.A.C. 10A:16-4.4 governing inmate/therapist confidentiality. 54. Plaintiffs' confidence in the confidential nature of communications with therapy staff is encouraged by the defendants who require inmates to sign Form 520 I, under the mandate of N.J.A.C. 10A: I 6-4.4(h), by which inmates are informed as to the limits of confidentiality, none of which Plaintiffs had reason to believe would apply within the context of the screening process for civil commitment. 55. At the same meeting on or about March 26, 2003 Dr. Schaupp and Dr. Harris stated that as a member of the treatment team, Dr. Harris participates in writing the final termination report, and makes the initial determination if a soon-to-be-released inmate is to be screened for civil commitment. 56. At the same meeting, Dr. Harris explained that the final termination report, along with his professional psychiatric recommendation is forwarded to the IRC which then subjects his professional medical opinion to the lay review of a committee of citizens and who may concur with or overrule his professional medical recommendation regarding screening. 57. On information and belief, upon a referral for screening by the IRC, Dr. Harris may, subsequent to making the initial professional psychiatric recommendation for or against screening, actually conduct the screening himself, as occurred with Plaintiff P.T.. 58. On information and belief, the IRC operates in the absence of policies, procedures, rules, regulations or standards promulgated under the Administrative Procedures Act, N.J.S.A. 52:14B-1 through 12 by which its composition, purpose, scope of authority, practices, decision-making processes, due process protections, appeal and grievances procedures, among other functional capacities, are governed. 59. On information and belief, the IRC operates as an extra-legal, civilian review board, with ultimate, unreviewable, unappealable authority over plaintiffs' lives, absent statutory or regulatory construction. 60. The "Civil Commitment Screening Process" as referenced throughout this complaint, includes all policies, procedures, practices, and standards employed by defendants, by which Plaintiffs are considered for referral to the IRC for civil commitment screening, and/or are referred for psychiatric screening by the IRC, and/or are subjected to psychiatric screening for determination of whether or not they are a sexually violent predator under the meaning of the SVPA, and the subsequent signing and presentment of clinical certificates to a court of competent jurisdiction in support of an order of temporary commitment. 61. On information and belief, the Civil Commitment Screening Process has not been promulgated consistent with the requirements of APA as noted above. 62. Plaintiffs and class members are not permitted access to their treatment records for the purpose of verifying the information contained therein (including records that have been previously disclosed to them), or for any purpose, prior to their use in the Civil Commitment Screening Process. 63. On information and belief, the SVPA, at N.J.S.A. 30:4-27.27(b) provides that all records of a person who a state agency has in its care, and who the agency believes MAY meet the criteria of a sexually violent predator, must provide to the Attorney General all information that may be "relevant to a determination of whether the person maybe a sexually violent predator, including, without regard to classification as confidential pursuant to regulations of the agency with jurisdiction, any pre-parole report, psychological and medical records..." 64. On information and belief, communication between a psychologist or a psychiatrist and a patient, and any records documenting that therapeutic relationship are privileged and confidential as per N.J.S.A. 45:14B-28 and N.J.S.A. 2A:84A-22.2 and 22.3, a privilege expressly acknowledged as extending to inmates in N.J.A.C. 10A:16-4.4 et seq. 65. On information and belief, the New Jersey Superior Court Appellate Division invalidated that part of the New Jersey Administrative Code governing the operations of the Department of Corrections, which the court believed did not sufficiently protect inmate-therapist confidentiality, and in so doing, relied extensively upon the confidentiality requirements embodied in the rules of the Board of Psychological Examiners (N.J.A.C. 13:42-4.1 et seq) and the ethical standards of the American Psychological Association in expressing its rationale for the decision it reached. [IMO Rules Adoption Regarding Inmate-Therapist Confidentiality, 224 N.J. Super. 252 (App. Div. 1988)] 66. In accessing the extent and nature of privilege of inmate-therapist relationships, Plaintiffs and class members have relied upon the interpretation of the courts in IMO Rules Adoption Regarding Inmate-Therapist Confidentiality, ibid. 67. As previously alleged, N.J.A.C. 10A: 16-4.4(h) mandates that inmates sign a form expressly informing them that statements made to therapists are privileged (with a few exceptions not relevant to this complaint), prior to the initiation of therapy. 68. Plaintiffs, and on information and belief, other class members as well, relied upon the representations of defendants, that statements made in therapy, notwithstanding the few exceptions noted, are privileged and could not be disclosed to anyone not directly involved in their treatment, without their consent. 69. Plaintiffs, relying upon said representations by defendants as to inmate-therapist confidentiality, participated freely and openly regarding their thoughts and feelings, particularly with respect to their sexual deviancy, confident in the assurances given that such statements were confidential and would not be used against them. 70. Plaintiffs' subsequent awareness that the SVPA dissolves that confidential relationship has created an acute sense of anxiety, distress and stress, about the impact of disclosures in therapy, and has compromised the degree of trust they are willing to place in therapists and the therapeutic process. 71. On information and belief, Plaintiffs state that confidentiality within therapist/psychiatrist-patient relationships is an essential component of psychiatric/ psychological/ medical care policy and is embodied in the ethical standard codes of various professional groups as enumerated in the above referenced appellate court decision (IMO Rules Adoption Regarding Inmate-Therapist Confidentiality, ibid.) and significantly advances public policy interests in ensuring that sex offenders receive high quality and effective therapy. 72. On information and belief, Plaintiffs allege that a dual relationship in the context of psychiatrist/patient relationships, exists whenever the psychiatrist, either simultaneously or sequentially, establishes relationships with another person or entity which conflicts with his allegiance or professional responsibilities to the client. 73. On information and belief, dual relationships are prohibited by the professional standards of care governing the professional practice of medicine, psychiatry and psychology. 74. On information and belief, except for Plaintiff P.T. whose statement is based on knowledge, Dr. Harris engages in a dual relationship by serving as a member of an inmate's treatment team, and then subsequently, acting as an agent of the state under the SVPA, conducts a psychiatric screening to determine if the Plaintiff is a sexually violent predator subject to civil commitment. 75. On information and belief, Dr. Shnaidman engages in a dual relationship by serving as a member of an inmate's treatment team, and then subsequently, acting as an agent of the state under the SVPA, conducts a psychiatric screening to determine if the inmate is a sexually violent predator subject to civil commitment. 76. On information and belief, Dr. Siegel engages in a dual relationship by serving as a member of an inmate's treatment team, and then subsequently, acting as an agent of the state under the SVP A, conducts a psychiatric screening to determine if the inmate is a sexually violent predator subject to civil commitment. 77. Defendant Harris serves on Plaintiff W.W.'s treatment team, which, given Defendant's prior practice of engaging in a dual relationship, creates the therapeutically harmful expectation on the part of Plaintiff W.W., that Defendant Harris will shortly change roles from a member of his therapeutic treatment team to an adversary in a civil action with dire consequences for his liberty, a realization that engenders great psychological distress and harm. 78. On information and belief, the rate of civil commitment of sex offenders from A.D.T.C. was 35% in 2001, the last year for which Plaintiffs were able to obtain data. 79. As reported by Dr. Schaupp in her presentation to the 1 Wing T.C. on or about March 26, 2003, the civil commitment rate for 1 Wing was 26% over an unspecified period of time. 80. On information and belief, the recidivism rate of treated sex offenders released from A.D.T.C. since 1968, whereby recidivism is defined as a return to A.D.T.C. for any reason (new conviction, technical parole violation, etc.), is approximately 9%. 81. On information and belief, researchers Hanson and Bussiere found an overall recidivism rate for all types of sex offenders of 13.4% over a 5-6 year period, based on a review of over 61 research studies encompassing 23,000+ offenders in the United States and Canada, as well as abroad. 82. On information and belief, A.D.T.C. is required under N.J.S.A. 2C:47-9 et seq. to conduct a 5 year study of recidivism of inmates released from A.D.T.C. 83. On information and belief, recidivism data collected by A.D.T.C. demonstrates that recidivism of inmates released from A.D.T.C. is far below the current rate of commitment of inmates from A.D.T.C. 84. On information and belief, defendants knew or should have known of the recidivism rate for A.D.T.C., the national recidivism rate data as reported by Hanson and Bussiere, and the rate of commitment of inmates from A.D.T.C. 85. On information and belief, defendants knew or should have known that they were civilly committing inmates at a rate 3-4 times greater than the anticipated rate of reoffending, and should have recognized the harm inherent in a practice that results in the unnecessary commitment of 2 to 3 individuals for every individual who is truly high risk and in need of civil commitment. 86. On information and belief, defendants knew or should have known of the immediate and irreparable harm to which it threatens to expose Plaintiffs, harm that is attendant to the inappropriate civil commitment of an individual whom is not or was not a high risk for sexual reoffending, as demonstrated by the loss of freedom experienced, the stigmatization associated with being labeled a sexually violent predator and the psychological harm caused by being housed in a high security setting and being subject to a treatment program designed to treat him as something he is or was not. 87. On information and belief, defendants know or should know of the risk to which they are exposing Plaintiffs and other class members as described in paragraph 86, by virtue of a Civil Commitment Screening Process that incorrectly recommends for commitment, 2 to 3 individuals for everyone it correctly identifies. 88. On information and belief, public perception about the intractability of sex offender recidivism, while false, engenders enormous political pressure to keep sex offenders locked up, pressure to which Defendants are not insensitive. 89. On information and belief, the political pressures so noted, compound the risk of bias in sex offender screenings for civil commitment, wherein the individuals or entities responsible for making such determinations are private contractors, (such as Defendants CMS and PSC, or individually employed by or independently contracted with those entities, including defendants Graffin, Schaupp, Harris, Siegel, and Shnaidman) who lack qualified immunity for their acts and omissions, leaving them individually open to liability should an offender they released commit another violent crime. 90. On information and belief, defendants rely heavily on the Minnesota Sex Offender Screening Tool- Revised (hereinafter) MnSOST-R (as well as other actuarial scales) in making determinations as to who should be subjected to the civil commitment screening process. 91. On information and belief, the MnSOST-R is an actuarial device used to predict risk of reoffense of sex offenders based on the presence or absence of numerous factors and scores or weights associated with those factors. 92. On information and belief, the use of the MnSOST-R in a manner consistent with standards and guidelines established by the scale's publishers, has been judicially noticed by the New Jersey Supreme Court as admissible in support of an expert opinion under New Jersey Court Rule 702 [see IMO Commitment of R.S., 173 N.J. 134 (2002)]. 93. On information and belief, defendants, by virtue of an undefined and undocumented process, arbitrarily reduced the cutoff score used for making a decision to screen for civil commitment from that recommended by the scale developers (13) to 8, without providing empirical support and without demonstration of the reliability and validity of employing a lower cutoff score for A.D.T.C. inmates. 94. On information and belief, the lower cutoff score was selected without due consideration given to, and, in fact, in opposition to, the recidivism data collected at A.D.T.C. pursuant to N.J.S.A. 2C:47-9 et seq. 95. On information and belief, and in the case of Plaintiff P.T., based on knowledge, Dr. Harris has violated the scoring protocols of the MnSOST-R so as to obtain inflated scores, thus creating the perception of increased risk for reoffense in support of a recommendation for civil commitment. 96. On information and belief, and in the case of Plaintiffs P.T. and W.W., based on knowledge, Dr. Schaupp has violated the scoring protocols of the MnSOST-R so as to obtain inflated scores, thus creating the perception of increased risk for reoffense in support of a recommendation for civil commitment. 97. On information and belief, and in the case of Plaintiff P.T., based on knowledge, Dr. Siegel has violated the scoring protocols of the MnSOST-R so as to obtain inflated scores, thus creating the perception of increased risk for reoffense in support of a recommendation for civil commitment. 98. On information and belief, Dr. Shnaidman has violated the scoring protocols of the MnSOST-R so as to obtain inflated scores, thus creating the perception of increased risk for reoffense in support of a recommendation for civil commitment. 99. On or about February 4, 2003, Defendant Harris denied Plaintiff P.T.'s request that the psychiatric screening for the purpose of civil commitment he was then undergoing, be electronically recorded. 100. On March 28, 2003, Plaintiff W.W.'s written request for permission to electronically record any psychiatric screening evaluations pursuant to SVPA, was denied by Defendant Graffin under the authority of Defendant Rogers. 101. On information and belief, other written and verbal requests by inmates that their psychiatric screenings for civil commitment be electronically recorded have been denied, sometimes verbally by the evaluating psychiatrist, other times in writing by Administrator Rogers, or her subordinate. 102. On information and belief, the New Jersey Superior Court Appellate Division has already held that a party in a civil action who is compelled to participate in a psychological evaluation by an opposing party, has a right to an electronic recording of that evaluation [See B.D. v. Carley, 307 N.J. Super 259 (App. Div. 1998)]. 103. Including Plaintiff P.T., who despite already being screened by Defendants Harris, Siegel and Shnaidman was informed by his case manager Mr. Gellert that he will likely be screened again by the same three defendants, all Plaintiffs and many Class Members will be subjected to the Civil Commitment Screening Process described above, placing each of them at substantial risk to suffer immediate and irreparable harm as enumerated in paragraph 86 above. V. CAUSES OF ACTION FIRST COUNT (Absence of Due Process Protections for Challenging Referral for Screening and Temporary Commitment Proceeding Violates Due Process Protections of the First and Fourteenth Amendments) 104. Plaintiffs repeat and reallege each and every allegation as set forth in the above paragraphs as if set forth at length herein. 105. The actions of Defendants Brown, Cebasco, Farrell, and Rogers, acting under the color of law, in the absence of explicit legal authority, permitting the IRC to decide which Plaintiffs to release and which to refer for screening under SVPA, with the concomitant threat to the Plaintiffs' liberty interest, absent any procedures by which Plaintiffs may challenge that determination, and absent any right to seek a redress of grievance or judicial review, violates Plaintiffs' rights to seek redress of grievances against the government and constitutionally granted rights to access to the courts under the First Amendment of the United States Constitution. 106. The actions of Defendants Brown, Cebasco, Farrell, and Rogers, described in paragraph 105 above, denied Plaintiffs the due process of law in violation of the Fourteenth Amendment to the United State Constitution. 107. The commissions and omissions of Defendants Brown, Cebasco, Farrell, and Rogers, in failing to promulgate rules and procedures by which Plaintiffs could challenge the decisions rendered through the civil commitment screening process, denied Plaintiff the due process of law in violation of the Fourteenth Amendment to the United States Constitution, and the right to redress of grievances and access to the courts under the First Amendment to the United States Constitution. 108. By the actions of defendants complained of herein, Plaintiffs have and will continue to be subjected to immediate and irreparable harm attendant to the inappropriate civil commitment of an individual who is not high risk for sexual reoffending, as demonstrated by:
109. By the actions of defendants complained of herein, Plaintiffs have and will continue to be subjected to immediate and irreparable harm attendant to the violations of professional practice standards and ethics of medicine/ psychiatry/ psychology, most especially exposure to dual relationships and violations of privileged communications in which Plaintiffs previously engaged in, as demonstrated by:
SECOND COUNT (Arbitrary and Capricious Decision Making, Arising from the Absence of Policies, Procedures, and Standards, Promulgated under State's Administrative Procedures Act, Governing the Screening Process, Violated Due Process Protections Under the 14th Amendment) 110. Plaintiffs repeat and reallege each and every allegation as set forth in the above paragraphs as if set forth at length herein. 111. Defendants Brown, Cebasco, Farrell, and Rogers failed to promulgate policies, procedures, and standards under APA with regard to the operation of the IRC, and the Civil Commitment Screening Process, so as to avoid the arbitrary and capricious decision-making by which civil commitment is currently implemented, in violation of Plaintiffs' rights to due process under the Fourteenth Amendment of the United States Constitution. 112. Defendants Brown, Cebasco, Farrell, and Rogers failed to adhere to the requirements of APA as stated in paragraph 111 above, so as to protect Plaintiffs' rights to privilege and confidentiality in inmate-therapist/psychiatrist communications consistent with existing statute and administrative code regulations, and ethical standards of professional conduct, in violation of Plaintiffs' rights to due process under the Fourteenth Amendment of the United States Constitution. 113. Defendants Brown, Cebasco, Farrell, and Rogers failed to adhere to the requirements of APA as stated in paragraph 111 above, so as to ensure that professional standards of care, as recognized by the professions of medicine, psychiatry and psychology, are employed in the Civil Commitment Screening Process as applied to the Plaintiffs, in violation of Plaintiffs' rights to due process under the Fourteenth Amendment of the United States Constitution. 114. By the actions of Defendants complained of herein, Plaintiff will suffer immediate and irreparable harm as detailed in paragraph 108 and 109. THIRD COUNT (Failure to Adhere to Professional Standards of Medical/Psychiatric/Psychological Practice, and Deviation from Accepted Practice in the Use of Scientifically Validated Instruments, Violates Due Process and Fundamental Fairness) 115. Plaintiffs repeat and reallege each and every allegation as set forth in the above paragraphs as if set forth at length herein. 116. The actions of Defendants Harris, Siegel, and Schaupp, whereby they violated professional standards of medical/ psychiatric/ psychological care and deviated from accepted practice in the manner in which they employed otherwise scientifically validated instruments (namely the MnSOST-R) to the harm and detriment of Plaintiff, denied Plaintiffs due process of law with disregard for Fundamental Fairness and in violation of the Fourteenth Amendment of the United States Constitution. 117. Defendants Cebasco, Farrell, Graffin, CMS, and PSC, failed to ensure that adequate professional standards of medical/ psychiatric/ psychological care were provided to the Plaintiffs' subjected to the Civil Commitment Screening Process and thus failed to prevent the unethical behavior alleged in paragraph 116, thereby denying plaintiff's due process of law with wanton disregard for Fundamental Fairness an in violation of the Fourteenth Amendment of the United States Constitution. 118. Defendants Cebasco, Farrell, Graffin, CMS, and PSC, failed to supervise their agents, subordinates, employees, and subcontractors and exercise due diligence in that supervision, and failed to enforce the contractual obligations assumed by CMS, so as to ensure that said agents, subordinates, employees, and subcontractors, were adhering to adequate professional standards of medical/ psychiatric/ psychological care in services provided to Plaintiffs who were subject to the Civil Commitment Screening Process, and failed to prevent the unethical behavior alleged in paragraph 116, thereby denying Plaintiffs due process of law with wanton disregard for Fundamental Fairness and in violation of the Fourteenth Amendment of the United States Constitution. 119. By the actions of Defendants complained of herein, Plaintiffs will suffer immediate and irreparable harm as detailed in paragraph 108 and 109. FOURTH COUNT (Defendants Conspired to Sustain a High Rate of Civil Commitment in Violation of the Fourteenth Amendment) 120. Plaintiffs repeat and reallege each and every allegation as set forth in the above paragraphs as if set forth at length herein. 121. All the Defendants acted in combination, understanding or agreement to conspire for the purpose of inflating civil commitment rates well in excess of expected recidivism rates, to avoid the risk of liability attendant to their lack of qualified immunity, thus imposing great harm upon Plaintiffs and class members and thereby denying Plaintiffs due process of law in violation of the Fourteenth Amendment of the United States Constitution. 122. Defendants Harris, Siegel, Shnaidman, and Schaupp, acted in combination, understanding or agreement to conspire to inflate the MnSOST-R scores to ensure the civil commitment under SVPA, of Plaintiffs who otherwise would not be committable, because of their lack of qualified immunity, as well as because of their callous and malicious disregard for Plaintiffs' rights and interests, thereby denying Plaintiff due process of law in violation of the Fourteenth Amendment of the United States Constitution. 123. Defendants Brown, Cebasco, Farrell and Rogers, ignored the exceptionally high rates of civil commitment of inmates from A.D.T.C, of which they knew or should ,have known, in an attempt to fulfill former Governor Christie Whitman's State of the State address call for more civil commitments, as well as to avoid negative publicity that might arise from the discharge of an inmate who subsequently committed another sex offense, and in response to political and/or public pressure engendered by the rape and murder of the child for whom Megan's Law was named and which was perpetrated by the brother of one of the named Plaintiffs, and acted in combination, understanding or agreement to conspire to sustain an unjustifiably high commitment rate by consciously and deliberately abandoning their supervisory role over those individuals and subcontractors under their jurisdiction so as to protect Plaintiffs from arbitrary and capricious decision making in the civil commitment screening process, thereby denying Plaintiffs due process of law with wanton disregard for Fundamental Fairness and in violation of the Fourteenth Amendment of the United States Constitution. 124. By the actions of Defendants complained of herein, Plaintiffs will suffer immediate and irreparable harm as detailed in paragraph 108 and 109. FIFTH COUNT (Denial of Inmate Request to Electronically Record Psychiatric Screenings for Civil Commitment Violates Due Process, Fundamental Fairness and Equal Protection Rights) 125. Plaintiffs repeat and reallege each and every allegation as set forth in the above paragraphs as if set forth at length herein. 126. The actions of Defendants Rogers, Graffin, Harris, Siegel, Shnaidman, CMS, and PSC, have denied or permitted to be denied, Plaintiffs' right to preserve evidence and discovery regarding the psychiatric screening evaluations by means of electronic recording, and, as acts which were willful and deliberate constitute affirmative suppression of evidence against themselves, and thereby denied Plaintiffs due process of law with wanton disregard for Fundamental Fairness and in violation of the Fourteenth Amendment of the United States Constitution. 127. The commissions and omissions of Defendant Rogers, Graffin, CMS, and PSC, in failing to establish policies and procedures to protect Plaintiffs' rights to discovery and preservation of evidence, in light of their custodial status over Plaintiffs, denied Plaintiffs due process of law in violation of the Fourteenth Amendment of the United States Constitution. 128. The actions of Defendant Rogers, Graffin, Harris, Siegel, Shnaidman, CMS, and PSC, as stated in paragraph 126 where said screening evaluation is precipitated by the presence — or the suspicion of the presence — of a mental disorder or abnormality, violated Plaintiffs' rights to Equal Protection as mentally disabled individuals as well as their right to be free of discrimination under the American with Disabilities Act (42 U.S.C. 12010 et seq.) in violation of the Fourteenth Amendment of the United States Constitution. 129. By the actions of Defendants complained of herein, Plaintiffs will suffer immediate and irreparable harm as detailed in paragraphs 108 and 109. SIXTH COUNT (Violation of Accepted Medical Standards of Care Constitutes Deliberate
Indifference to Plaintiffs' Medical 130. Plaintiffs repeat and reallege each and every allegation as set forth in the above paragraphs as if set forth at length herein. 131. The actions of Defendants Harris, Siegel and Shnaidman, by engaging in dual relationships involving Plaintiffs and the State of New Jersey, in violation of psychiatric and medical ethical standards of care, constitute deliberate indifference to the psychological needs of Plaintiffs and inflicted significant psychological harm upon Plaintiffs and class members, and thus violated Plaintiffs' rights to be free from cruel and unusual punishment under the Eighth Amendment. 132. The actions of Defendant Harris, in releasing confidential and privileged medical/ psychiatric/ psychological information to the IRC, in violation of accepted standards of both medical/ psychiatric/ psychological practice and ethics, as well as New Jersey Statute and Administrative Code, constitute deliberate indifference to the psychological needs of Plaintiffs and was the proximate cause of substantial psychological harm to Plaintiffs, in violation of the prohibitions against cruel and unusual punishments embodied in the Eighth Amendment of the United States Constitution. 133. The actions of Defendants Harris, Siegel, Shnaidman, and Schaupp by which they egregiously and maliciously deviated from accepted professional practice in the administration/scoring of scientifically validated instruments upon which they relied in making a determination as to whether Plaintiffs and class members are or were sexually violent predators, constitutes deliberate indifference to the psychological needs and freedom interests of Plaintiffs, in violation of the prohibitions against cruel and unusual punishments embodied in the Eighth Amendment and due process protections embodied in the Fourteenth Amendment of the United States Constitution. 134. The commissions and omissions of Defendants Farrell, Cebasco, Rogers, Graffin, CMS, and PSC, in permitting the violations of medical/ psychiatric/ psychological standards of care and ethics enumerated in paragraphs 131, 132, and 133 constitutes deliberate indifference to the medical and psychological needs of Plaintiffs in violation of the prohibitions against cruel and unusual punishments embodied in the Eighth Amendment of the United States Constitution. 135. By the actions of Defendants complained of herein, Plaintiff will suffer immediate and irreparable harm as detailed in paragraph 108 and 109. SEVENTH COUNT (The Use of the IRC as a Component of the Civil Commitment Screening Process
Represents the Malicious 136. Plaintiffs repeat and reallege each and every allegation as set forth in the above paragraphs as if set forth at length herein. 137. The commissions and omissions of Defendants Brown, Cebasco, Farrell, Rogers, John and Jane Does, whereby the IRC — an extra-legal body of citizens devoid of any professionally recognized role in the evaluation, diagnosis or treatment of sexual offenders — intrudes as a Star Chamber-like entity operating behind a cloak of secrecy and omnipotence under the guise of administering the SVPA, that is subject to neither review nor appeal, into the lives of inmates about to reenter society as individuals who have paid their debt to that society, constitutes malicious abuse of process in violation of the Due Process Rights of the Fourteenth Amendment and Fundamental Fairness. 138. By the actions of Defendants complained of herein, Plaintiff will suffer immediate and irreparable harm as detailed in paragraph 108 and 109. EIGHTH COUNT (State Statute Negating the Confidentiality of Inmate Medical/Psychiatric/Psychological Records and Communications Violates the Fourteenth and Eighth Amendments) 139. Plaintiffs repeat and re-allege each and every allegation as set forth in the above paragraphs as if set forth at length herein. 140. N.J.S.A. 30:4-27.27(b) of the SVPA, imposes a duty on state officials which forces them to violate accepted standards of medical/ psychiatric/ psychological practice and causes significant psychological harm to Plaintiffs as participants in inmate-therapist/psychiatrist relationships, and consequently imposes cruel and unusual punishment on Plaintiffs that is prohibited by the Eighth Amendment of the United States Constitution. 141. The mandates of N.J.S.A. 30:4-27.27(b) of the SVPA, noted in paragraph 140 above interfere with Plaintiffs' access to, and ability to utilize and benefit from, needed psychological and psychiatric services, and consequently imposes cruel and unusual punishment on Plaintiffs that is prohibited by the Eighth Amendment of the United States Constitution. 142. Retroactive application of N.J.S.A. 30:4-27.27(b) of the SVPA which results in the dissolution of the prior existing confidential and privileged nature of communications between therapists/ psychiatrists and Plaintiffs, an assumption of confidentiality upon which Plaintiffs relied in good faith to their detriment, violates Plaintiffs' rights to due process of law and notice as to the consequences of state compelled treatment, and as such offends the conscience in its reckless disregard for Fundamental Fairness and violation of Fourteenth Amendment protections. 143. Retroactive application of the mandates of N.J.S.A. 30:4-27.27(b) as noted above in paragraph 142, where the state explicitly required Plaintiffs to acknowledge the existence of the inmate-therapist privilege prior to the initiation of the therapy by signing Form 520-1 and thus established confidential and privileged communications as a prerequisite for participation in therapy, violates Plaintiffs' rights to due process of law and notice as to the consequences of state compelled treatment, and as such offends the conscience in its wanton disregard for Fundamental Fairness and violation of Fourteenth Amendment protections.\ 144. N.J.S.A 30:4-27 .27(b), by eliminating inmate-therapist privilege in its most essential form for sex offenders in treatment, denies to such inmates the ability to speak freely and unguardedly in therapy and interferes with the critical trust relationship between therapist and inmate that is prerequisite to effective treatment of psychological and/or mental disorders from which inmates, including named Plaintiffs and class members suffer, in violation of the Eighth Amendment prohibitions against cruel and unusual punishment, and in contravention of stated public policy interests in the effective treatment of sex offenders. 145. N.J.S.A 30:4-27.27(b), by eliminating inmate-therapist privilege in its most essential form for sex offenders in treatment, denies to such inmates, including the named Plaintiffs and class members who suffer from a DSM-1 V recognized mental disorder, equal protection under the law under the Fourteenth Amendment, and constitutes discrimination prohibited by the Americans with Disabilities Act (ADA), as a similar abrogation of privilege is not imposed on any other competent class of mentally disabled individuals. 146. By the actions of Defendants complained of herein, Plaintiff will suffer immediate and irreparable harm as detailed in paragraph 108 and 109. VI. STATEMENT OF CLAIMS APPLICABLE TO ALL COUNTS 147. The Defendants' actions complained herein are done knowingly, voluntarily, intentionally, purposely and maliciously with reckless disregard for Plaintiffs' rights, under the United States Constitution. 148. The Plaintiffs have no plain, adequate or complete remedy at law to redress the wrongs described herein. Plaintiffs have been and will continue to be irreparably injured by the conduct of the Defendants unless this court grants the declaratory and injunctive relief which Plaintiffs seek. V. PRAYER FOR RELIEF WHEREFORE, Plaintiffs' respectfully pray that this Court enter judgment granting plaintiffs: 149. A declaratory judgment that the defendants' acts, policies and practices described herein violate Plaintiffs' rights under the United States Constitution. 150. A Temporary Restraining Order (see separate filing) which:
151. A preliminary and permanent injunction that:
152. PLAINTIFFS DEMAND TRIAL BY JURY ON ALL TRIABLE ISSUES. VI. REPRESENTATIONS BY PLAINTIFF TO COURT 153. Plaintiffs represent to this Court that this Complaint is not being presented for any improper purposes, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and 154. The claims and legal contentions are warranted by existing law or are non-frivolous arguments for the extension, modification or reversal of existing law, or the establishment of new law; and 155. The allegations and factual contentions contained in this Complaint have evidentiary support.
I, P.T., Plaintiff in the above entitled action, pursuant to 28 U.S.C. § 1746, declare under penalty of perjury that the foregoing is true and correct.
I, W.W., Plaintiff in the above entitled action, pursuant to 28 U.S.C. § 1746, declare under penalty of perjury that the foregoing is true and correct.
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