P. T.,
Pro se
Adult Diagnostic & Treatment Center
8 Production Way
Avenel, NJ 07001

W.W.,
Pro se
Adult Diagnostic & Treatment Center
8 Production Way
Avenel, NJ 07001

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

CIVIL ACTION

_______________________________________


P.T., W.W., et al,
              Plaintiffs,

v.

DEVON BROWN, et al,
             Defendants.

_______________________________________

 
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CLASS ACTION

No. ______________
 

DECLARATION


DECLARATION OF P.T. IN SUPPORT OF A
TEMPORARY RESTRAINING ORDER

State of New Jersey,
County of Middlesex

          I, P. T., declare under penalty of perjury:

        1.     I am a Plaintiff in the above entitled action, and make this Declaration, pursuant to Fed.R.Civ.P. 65(b), in support of Plaintiffs' motion for issuance of a Temporary Restraining Order, without notice to the defendants.

        2.     This is an action under Fed.R.Civ.P. 23 [Class Action] seeking declaratory relief under 42 V.S.C. 1983 as well as injunctive relief.

        3.      As a result of a lawful sentence imposed on August 9, 1999, I was committed to the Adult Diagnostic and Treatment Center (hereinafter A.D. T .C.) for a program of specialized treatment for my mental condition, pursuant to N.J.S.A. 2C:47-3(b), arriving at A.D.T.C. on August 12,1999.

        4.     I am the brother of Jesse Timmendequas, convicted of the rape and murder of Megan Kanka in 1994 and currently awaiting execution by the state of New Jersey.

        5.     On information and belief, the public outrage ensuing from the crimes committed by my brother, Jesse Timmendequas, a sex offender who had previously been an inmate at A.D.T.C., precipitated a national movement for the establishment of new laws governing sex offenders, encompassing both the prosecution and sentencing of sex offenders as well as community notification as to the presence of sex offenders in the community.

        6.     On information and belief, community outrage and horror at the crimes committed by my brother also engendered a movement in New Jersey for passage of new laws making it easier for the state to civilly commit sex offenders at the conclusion of their sentence of imprisonment.  The Sexually Violent Predator Act (hereinafter "SVPA")., N.J.S.A. 30:4-27 et seq. was passed in 1998 and went into effect August, 1999, and has resulted in the civil commitment of over 250 sex offenders since 1999.

        7.     On or about February 5, 2001 and again on or about May 13, 2002, Ms. Debra Frankel, social worker and instructor for the Relapse Prevention Modules I that I attended, stated "it doesn't matter what you do, you'll be committed anyway because a Timmendequas will never be viewed as being safe."

        8.     On or about December 5, 2002 in the Third Floor Corridor, Ms. Middleman, a social worker and instructor in my Personal Victimization Module., suggested that I seek legal advice as my name would likely be an issue if I am screened.

        9.     On or about January 14, 2003 in the Third Floor Corridor, Dr. James Reynolds, former member of my treatment team, expressed to me regret that he had sent me to 1 Wing Therapeutic Community (hereinafter "T.C.") and advised me to get a lawyer.

        10.     On or about February 11, 2003 and again on or about March 11, 2003, Mr. Thomas Calabrese, social worker and my previous case manager, also expressed to me regrets about sending me to 1 Wing T.C. and observed that I was not being viewed for what I had done, but because of my name.  He also advised me to hire an attorney.\

        11.     Subsequent to a meeting with my current treatment team on 1 Wing, Ms. Coursen, a social worker member of my treatment team, advised me to pursue legal advice in light of the manner in which screening was taking place.

        12.     My written six month reviews evidence positive evaluations of my progress through therapy over the past four years.

        13.     Notwithstanding treatment reports documenting positive progress, as I near the end of my sentence, the tone of the final paragraph of my final termination report, stands in sharp contrast to the rest of my clinical file, and claims that l am a very dangerous person.

        14.     Said Termination Report was read to me at a meeting with my 1 Wing Treatment Team on or about February 21, 2003.  However, I was denied a copy of that treatment report, notwithstanding the fact that the contents of the reports were read to me.

        15.     On or about January 9, 2003, after group in the 1 Wing Therapy Room, Mr. Gellert, Level IV Process Group facilitator, stated to me that he believes that I am a very dangerous person and that commitment would be the safest thing for all concerned.

        16.     On or about January 13, 2003, Dr. Diane Schaupp, 1 Wing T.C. coordinator, stated to me that she agrees with Mr. Gellert, but declined to share her reasoning with me other than to state that my high score on the MnSOST-R was due to the implied violence in my instant offense.

        17.     Dr. Schaupp informed me that l had obtained a score of 13 on the MnSOST-R. indicating that I was at high risk of reoffending.

        18.     An accurate scoring of the MnSOST-R, relying on the scoring criteria provided by the test's authors, yields a score of 1, consistent with a low risk of reoffending.

        19.     Dr. Schaupp and other staff members who have employed the MnSOST-R deviated from accepted scoring procedures in an arbitrary and capricious manner, in order to obtain a higher score than would have been obtained through an unbiased and objective evaluation of the relevant factors.

        20.     On or about December 3, 2002, I was summoned before DEFENDANT Lawrence Siegel, a psychiatrist, for the purpose of a screening evaluation for temporary commitment under the Sexually Violent Predators act.

        21.     Dr. Siegel stated to me during this screening interview that if I had a different name or had changed my name, I probably would not have been screened, and stated to me that I should seek legal counsel.

        22.     Defendant Siegel questioned me primarily on my family history.  Defendant Siegel stated that criminal history was looked at more than what is done in therapy when screening for commitment.  Defendant Siegel also stated to me that any crime with which I was charged, even if the charges were dropped or if I was found not guilty, is viewed as an indication of potential to commit future crimes.  Defendant Siegel stated that the psychiatrists had been instructed to view inmates being screened as guilty of all offenses with which they have been charged, even those they are found not guilty of at trial.

        23.     On or about February 4, 2003, I was summoned before Defendant Roger Harris, a psychiatrist, for the purpose of a screening evaluation for temporary commitment under the Sexually Violent Predators act.

        24.     Defendant ROGER HARRlS is a licensed psychiatrist and serves as a member of the my Case Management Treatment Team on 1 Wing's T.C. at the A.D.T.C., and participates in the Treatment Program.

        25.     I requested of Dr. Harris, that the screening evaluation be audio or videotaped to preserve a record of the interview for any subsequent commitment hearing, given my concerns about statements made by Dr. Siegel in the prior evaluation.

        26.     On or about April 2, 2003, I reviewed the written request submitted by co-plaintiff Whelan, requesting electronic recordings at any psychiatric screening evaluations to which he may be subjected, and observed, as stated in the accompanying compliant at paragraph 100 that his request had been denied in writing by Defendant Graffin.

        27.     Defendant Harris denied this request stating to me that such tapings were not permitted.  Defendant Harris asked no questions regarding my therapy or what I had learned in therapy.

        28.     Most questions asked by Defendant Harris were about my crime.  When I responded to questions about my crime, Defendant Harris repeatedly asked me how "that related to your brother's crime."

        29.     Defendant Harris stated to me that he viewed me as a high risk because my crime was committed so close in time to my brother's.

        30.     On or about January 30, 2003, I was summoned before Defendant Vivian Shnaidman, a psychiatrist, for the purpose of a screening evaluation for temporary commitment under the Sexually Violent Predators act.

        31.     Defendant Shnaidman stated to me that I was probably being screened because of the politics surrounding my name, and further stated that if she gave me a favorable report, the state would probably order that I be screened a fourth time by another psychiatrist.  Defendant Shnaidman also advised me to seek legal counsel.

        32.     Defendant Shnaidman asked me no questions about my therapy, focusing mostly on my family and post- release plans.

        33.     At no time during any of the screening evaluations by Defendants Siegel, Harris, or Shnaidman, was I administered any psychological or diagnostic tests to evaluate my current mental status and functioning.

        34.     At no time during the screening evaluations 'by Dr. Harris and Shnaidman, was I advised that anything I said could be used against me in a civil commitment proceeding.

        35.     On April 2, 2003, I filed a complaint with the American Psychiatric Association alleging the violation of ethical standards of practice for psychiatrists against Drs. Harris, Shnaidman and Siegel, on the grounds that, in the case of Dr. Harris, he permitted himself to participate in a dual relationship in which he owed conflicting duty and obligations of care to the State of New Jersey and to me, and with regard to Drs. Shnaidman and Siegel, on the grounds that they failed to adhere to the standards of honesty and integrity by allowing themselves to be influenced or pressured by the state because of my last name.

        36.     Notwithstanding the sudden change in tone regarding my progress in therapy in my final termination report as compared to prior 6 month reviews, ample evidence is available that I have fully cooperated in the program of specialized treatment offered at A.D.T.C. by entering and participating in various psychotherapy and educational process groups including those enumerated below.

        37.     I have satisfactorily completed Psychoeducational Level I, Level II and Level III Process groups and was specifically recommended to Level IV 1 Wing Therapeutic Community by my treatment team because of progress in therapy.

        38.     I satisfactorily completed the following therapeutic Modules: Relapse Prevention Modules I and II, ADE/Star Program (Drug and Alcohol Treatment Modules), the Adult Children of Alcoholics program, the Victim Empathy Module, and Personal Victimization Module.

        39.     Starting December 3, 2002, I joined Dr. James Reynolds' Tuesday evening Aftercare Group, the purpose of which is to transition soon-to-be-released inmates into the community and into aftercare treatment programs.

        40.     During my time on the 1 Wing T.C. I served on the following committees: Mediation Committee and Therapeutic Community Committee, and facilitated the following support groups: Self-Help, Anger, Personal Victimization, Victim Empathy, Addictions, and Open Floors.

        41.     I enrolled in the GED program offered at A.D.T.C. on February 28, 2000 and passed my GED test on April 19, 2001.

        42.     I enrolled in A.D.T.C.'s educational program "Basic Computing Skills and Business Applications" on August 20, 2001 and successfully completed the course on May 17, 2002

        43.     Subsequent to passing the GED test and upon the recommendation of the GED instructor, Mr. Thomas Piteo, I was hired as the GED Class's Paraprofessional Teacher Aide.

        44.     I have always received positive work reports from supervising civilian staff.

        45.     I have always received positive housing reports from my housing wing officers.

        46.     I have received no administrative disciplinary charges during my entire period of incarceration.

        47.     As of this date, my current max date, or date of release from prison, is May 2, 2003.

        48.     As my offense was committed after 1994, I am subject to Community Supervision for Life (under N.J.S.A. 2C:43-6.4), by which terms, I will be bound by a written parole-like plan governing my employment, housing arrangements, social activities, and freedom of movement around the state, as well as notification of individuals with whom I come into regular contact as to my status as a convicted sex offender (the 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).

        49.     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.

        50.     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.

        51.     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%.

        52.     On information and belief, researchers Hanson and Bussiere published a report in the Journal of Consulting and Clinical Psychology showing 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.

        53.     I will suffer immediate and irreparable loss and injury if the restraining order is not issued pending a hearing on plaintiffs' motion for a preliminary injunction without notice to defendant or to defense counsel, in that:

      a.      My current date of release from the Adult Diagnostic & Treatment Center (A.D.T.C.) is May 2, 2003 and inasmuch as I have been screened by three psychiatrists, I am subject to removal from A.D.T.C., at any time prior, upon presentment of two clinical certificates to a court of competent jurisdiction and the subsequent expected issuance of an order for temporary commitment;
  b. Said anticipated transfer from A.D.T.C. to the civil commitment center at the Special Treatment Unit (STU) at Kearny, NJ will occur without prior notice to me, or any opportunity to challenge that transfer or the means by which it was authorized, and may occur at any time;
  c. My liberty will become immediately and severely restricted upon execution of said order of temporary commitment as I will not be able to obtain my freedom on May 2, 2003 as entitled based on operation of the laws of the State of New Jersey governing the expiration and fulfillment of criminal sentences.
  d. My property will be confiscated including any legal materials related to this complaint, significantly impairing my ability to communicate with the court, even to notice the court as to a change of address.
  e. Under N.J.S.A. 30:4-27 et seq. once committed to the STU, residents are severely restricted in their rights to pursue pro se litigation.  There is no law library at STU, nor is any legal assistance available to pursue 1983 claims through publicly funded sources.  Given my inability to afford an outside attorney, the state will essentially succeed in silencing my complaint by transferring me to the STU.
  f. Notwithstanding any of the above, a civil commitment as a sexually violent predator, in violation of the 14th and 8th Amendment rights asserted in my complaint, will result in my continued confinement and restriction of freedom for no less than 20 days, and, on information and belief from communications with residents of the STU, up to 6 months before I have any opportunity to be heard or to challenge the sexually violent predator determination at a final commitment hearing.
  g. Notwithstanding the fact that I expect to succeed on the merits at such a final commitment hearing, I will nevertheless be subjected to the conditions of a discharge plan to be drafted by the staff of the STU prior to my release from the STU, said discharge plan, potentially imposing additional restrictions on my freedom that would not have been imposed had I been released from A.D. T .C. as scheduled on May 2, 2003.

        54.     As a Plaintiff in a class action, I am representative of other members of the class and, on information and belief, an estimated 3-5 other class members, within the next 30 to 60 days, will be at risk of being screened, designated as a sexually violent predator and transferred to the STU pursuant to the granting of an order of temporary commitment, while being subjected to the violations of the First, Fourteenth and Eighth Amendment rights alleged in the accompanying complaint.

        55.     On information and belief, said members of the class will be subject to and suffer from the same types of harm as alleged I will be subjected to, should a temporary restraining order not ensue.

        56.     For the reasons set forth in the accompanying memorandum of law, filed with this motion, Plaintiffs are entitled to a Temporary Restraining Order and Preliminary Injunction, as specified in the Temporary Restraining Order Motion and accompanying ORDER.

For the foregoing reasons, I pray that this Honorable Court grant the Plaintiffs' motion in all respect.

Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct.
 

Date: ________________
 
_________________________
P. T.,
Pro se litigant

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