| Paul P. T., SBI# 309413B, 1W Pro se Adult Diagnostic & Treatment Center 8 Production Way Avenel, NJ 07001 W.W., SBI# 288526C, 1W IN THE UNITED STATES DISTRICT COURT CIVIL ACTION
MEMORANDUM OF LAW IN SUPPORT OF TABLE OF AUTHORIES MEMORANDUM OF LAW POINT I The Plaintiff Is Entitled To A Temporary Restraining Order And A Preliminary Injunction
POINT II The Plaintiff Should Not Be Required To Post Security FEDERAL CASES Duran v. Anaya, 642 F.Supp. 510 (D.N.M. 1986)
<Locate> <Locate> STATE CASES
B.D. v. Carley, 307 N.J.
Super. 259 (App.Div. 1988) <Locate>
Fed.R.Civ.P.
23 <Locate>
42 U.S.C. § 1983 <Locate> Statement of the Case This is a civil rights Class Action brought under 42 U.S.C. § 1983 and Fed.R.Civ.P. 23 by New Jersey State Prisoners housed at the Adult Diagnostic and Treatment Center (hereinafter "A.D. T .C."), the designated facility in New Jersey for offenders who have been determined to be compulsive and repetitive sexual offenders. The complaint upon which this action is based alleges violation of Plaintiffs' and class members' due process, equal protection and fundamental fairness rights under the Fourteenth Amendment to the United States Constitution and their rights to redress of grievances and access to the courts under the First Amendment and their rights to be free of cruel and unusual punishment under the Eighth Amendment. Plaintiffs allege that Defendants, who include state officials, private subcontractors and their employees and independent contractors, failed to ensure that proper protections were in place to guard against arbitrary and capricious actions on the part of state or private contractor employees or independent contractors in making determinations about which soon-to-be-released inmates should be screened for civil commitment under the New Jersey's Sexually Violent Predators Act (hereinafter "SVPA") as codified at N.J.S.A. 30:4-27 et seq., and which inmates should be then temporarily committed to the Special Treatment Unit (hereinafter "STU") at Kearny, New Jersey, pending a final commitment hearing. Specifically the complaint alleges that defendants' employ procedures, policies and practices that deny Plaintiffs any opportunity to challenge a referral for screening or a determination that the inmate is a sexually violent predator, prior to the deprivation of liberty attendant to commitment to a facility for such predators, such deprivation being accomplished in violation of First Amendment rights to redress grievances against the government and access to the courts, and in violation of Plaintiffs' due process rights under the Fourteenth Amendment. The complaint also alleges that the absence of policies and procedures adopted through the Administrative Procedures Act N.J.S.A. 52:14B-l through 12 (hereinafter "APA"), for the referral and screening process, denies due process protection of Plaintiffs' rights. The complaint further alleges that the Defendants failed to adhere to accepted standards of practice in the administration of scientifically validated instruments designed to assist in predictions of recidivism, thus rendering their decisions to commit in an arbitrary and capricious manner, in violation of Due Process rights and Fundamental Fairness. The complaint alleges that defendants conspired to sustain a high rate of civil commitment based on factors other than a scientifically and professionally grounded basis for commitment recommendations. Next the complaint alleges that the state statute that eviscerates inmate-therapist and inmate-psychiatrist confidentiality for those inmates being considered for civil commitment. N.J.S.A. 30:4-27.27(b), violates due process and fundamental fairness as well as 8th Amendment protections against cruel and unusual punishment, as applied retro-actively to communications which have already occurred and were previously privileged, and prospectively to communications yet to occur. The complaint also alleges that the defendants violated Plaintiffs' rights to due process and equal protection, as well as fundamental fairness by denying Plaintiffs the opportunity to preserve the evidence of a psychiatric screening for commitment via electronic recording. In addition, the complaint alleges that the existence and reliance upon an "Inmate Release Committee", made up of staff members who are unlicensed, uncertified, and untrained in medicine or any allied mental health field, in general, or in the evaluation, diagnosis and treatment of sex offenders, in particular, for making decisions about the need for screening of sex offenders for commitment, constitutes malicious abuse of process in contravention of the protections of the Fourteenth Amendment to the United State Constitution. Finally, the complaint charges that defendants have consistently and repeatedly violated accepted standards of practice and ethics governing the professions of medicine, psychiatry and psychology, and in so doing displayed deliberate indifference to the medical and psychiatric/psychological needs of inmates in violation of the Eighth Amendments prohibition against cruel and unusual punishment. Statement of Facts As detailed in the complaint and in the declaration supplied by named Plaintiff P.T., in support of this TRO motion, Plaintiffs are inmates currently housed at the Adult Diagnostic and Treatment Center where they have been participating in treatment. Each is subject to civil commitment under the SVPA and each has been informed by staff that they are likely to be screened for civil commitment or have been so screened. Plaintiff P. T. is scheduled to max out and be released on May 2, 2003 at the expiration of his term. P.T. is the brother of JESSE TIMMENDEQUAS, a previously convicted sex offender and former inmate at A.D.T.C., who raped and murdered Megan Kanka in 1994. The ensuing public outcry over the Plaintiff's brother's crimes led to a series of laws, first in New Jersey and then nationally, known as Megan's Laws, which mandated sex offender registration and varying degrees of community notification, and ultimately lead to the passage of the Sexually Violent Predators Act. The SVPA seeks to commit sex offenders who have completed their state prison term, to a long-term care treatment facility (currently housed at the Special Treatment Unit at Kearny New Jersey), if, after first a preliminary determination and then a subsequent full hearing, it is determined the offender is a sexually violent predator (N.J.S.A. 30:4-27 et seq.). Subsequent to the implementation of that act, Defendants instituted a process by which inmates nearing the end of their prison term, could be referred for possible psychiatric screening, be screened by said psychiatrists, and upon the determination of at least two psychiatrists who concur that the inmate is a sexually violent predator, obtain an order of temporary commitment by presenting clinical certificates affirming the psychiatrists' conclusions, to a court of competent jurisdiction (hereinafter referenced as the "civil commitment screening process"). The cornerstone of the civil commitment screening process is the Inmate Release Committee (hereinafter "IRC"), an extra-legal body of lay citizens with no professional training or certification in mental health or medical fields, which meets and operates in secret. Its decisions are unreviewable and unappealable, insulated even from judicial scrutiny. This lay body may overrule the professionally derived opinions of a licensed psychiatrist, without justification and without contrary psychiatric evidence to support their decisions. Absent statutorily granted authority, the IRC significantly controls plaintiffs' destiny without even providing notice of their anticipated consideration of an inmate's release status. Absent said notice, plaintiffs' liberty interests (as identified at length hereinafter) attaches at the moment the inmate is put on notice by any staff member that he is likely to be screened. In an attempt to secure evidence that might be used in any future commitment hearing, Plaintiffs and class members have requested that the screening evaluations be electronically recorded, a request that is always denied. Moreover, the psychiatrist who conducts the evaluation is frequently the same psychiatrist who serves on the treatment team of the individual at A.D.T.C., a conflict of interest prohibited by nationally accepted medical standards and commonly known as a "dual relationship." The complaint also alleges that confidentiality of the inmate-therapist and inmate-psychiatrist relationship is often violated in the screening process, engendering great harm in the form of emotional distress and loss of trust in the therapeutic relationship. Once the commitment order is signed, the inmate is usually transferred to the STU immediately, or within a few days. No notice is provided to an inmate of any of the steps in this process or when or if the state will seek to present clinical certificates to the court, (except for the obvious fact that when summoned before a psychiatrist to be screened, the purpose of the screening is sometimes, but not always revealed to the inmate). Perhaps most egregious, though, is evidence that defendants have conspired to sustain a high rate of civil commitment so as to satisfy public outrage over past acts of sex offenders who recidivated. The complaint alleges that A.D.T.C. may be committing 3-4 times as many individuals as are likely to reoffend if released. Toward that goal, the complaint alleges that some defendants have inflated scores on the main actuarial scale used to estimate risk of reoffense, the MnSOST-R, by deviating from the scale's scientifically validated scoring criteria. In the case of Plaintiff P.T., as recounted extensively in his declaration, some of the defendants and numerous other staff members have indicated that he is being screened for commitment predominately because of his name, that is, because he is the brother of JESSE TIMMENDEQUAS who awaits execution of his death sentence in state prison. Plaintiff P.T. alleges that in his case in particular, Defendants Harris, Siegel and Shnaidman have conspired to have him committed because of his name, and have acted to inflate his risk of reoffending. In the specific case of Defendants Harris and Siegel, statements made by them reveal an intent to deviate from the accepted scoring standards on the MnSOST-R so as to inflate the scores of inmates they rate. That inflation, in the case of Plaintiff P.T., placed him in a high risk category whereas an accurate rating would result in a score in the low risk category. Moreover, Defendants Harris, Siegel and Shnaidman have repeatedly violated professional prohibitions against dual relationships by serving both as a member of Plaintiffs' treatment teams and as the screening psychiatrist hired by the state to determine if the Plaintiff is a sexually violent predator. Plaintiff P.T. and as many as 3-5 other class members are scheduled to max out and be released within the next 30-60 days. All have been or are at risk of being subjected to the arbitrary and capricious referral and screening process complained of herein. Once an inmate has been screened by at least two psychiatrists, as has occurred with Plaintiff P.T., they may be removed from the building at any time prior to their release date and transferred to the STU. Such transfers occur without notice, and Plaintiff typically is unaware whether two clinical certificates certifying him as a sexually violent predator have been signed and a order of temporary commitment received, until he is secured and escorted out of the building in restraints. Once Plaintiff has been removed from the building and transferred to STU, his protected liberty interest has been violated and the irreparable harm this complaint seeks to avert will have occurred. Once at STU, plaintiff will lose all access to the federal courts, even most likely his ability to communicate his change of address to the court. His property and legal papers will be confiscated and returned to him on a selective basis at the discretion of the treatment staff at STU. He will have no access to a law library or any public assistance to prosecute his claim and is thus restricted by statute and by practice from acting as a pro se litigant. Consequently, defendants may effectively eliminate Plaintiff P.T. and other similarly situated class members from any relief available under this complaint by securing a temporary order of commitment in violation of constitutional rights as alleged in this complaint, removing the individual from the building and thus insulating themselves from prosecution of a complaint. The probability of defendants effectuating the transfer of any class members so as to render their 'legal action impotent is real and calls for the requested temporary restraining order. POINT I THE PLAINTIFF IS ENTITLED TO A In determining whether a party is entitled to a temporary restraining order or a preliminary injunction, courts generally consider several factors: whether the party will suffer irreparable injury, the "balance of hardships " between the parties, the likelihood of success on the merits, and the public interest. Each of these factors favors the grant of this motion. = A. The Plaintiff is threatened with
irreparable harm.
Inmates who are not referred for screening and who are not screened, are released on their release date and are free to return to their homes, their families, and their communities, resting secure in the knowledge that they have paid their debt to society as they prepare for the difficult, but gratifying, task of reintegrating into society. Inmates who are referred for screening, and who are screened, face the very real possibility of losing the freedom for which they have waited so long. As declared in the complaint and declaration in support of this motion, the risk is immediate, as the defendants can proceed against an inmate and secure commitment without any prior notice to the inmate in a very short period of time. As alleged in paragraph 46 of the Complaint, this is exactly what happened in the case of Michael Newman, a former A.D.T.C. inmate, who was screened and committed prior to his release date, and had insufficient time to seek court intervention. Given Plaintiffs' allegations in the accompanying complaint, the referral and screening process is fundamentally and constitutionally flawed. The risk of further arbitrary and capricious commitment of individuals who are not high risk to reoffend, establishes the immediate and irreparable harm that this Court can prevent by granting the relief requested. From a legal perspective, numerous claims of constitutional violations are tendered in this complaint, including violation of the First, Fourteenth and Eighth Amendments. The First Amendment claim arises from the policies and practices of the Defendants whereby they insulate themselves, behind an extra-legal, secretive and clandestine apparatus, the Inmate Release Committee, from any type of review, scrutiny or appeal, thus denying residents their First Amendment rights to redress of grievances, and access to the courts. The Fourteenth Amendment Due Process and Equal Protection violations are legion and encompass the entire civil commitment screening process. From the failure of the defendants to promulgate rules, polices and procedures as required by the New Jersey Administrative Procedures Act, to the arbitrary and capricious manner in which inmates are screened, including violations of accepted professional practice in the scoring of scientifically validated instruments in order to inflate offender risk assessments, to denial of opportunities to preserve evidence and discovery by refusing to permit Plaintiffs electronic recordings of their psychiatric screenings, to the conspiracy between and among defendants to sustain a high rate of civil commitment, the violations of Plaintiffs' rights beg for judicial intervention. Perhaps no more telling evidence of the effect of the arbitrary and capricious nature of the screening process to which inmates are being exposed, is the huge discrepancy between actual rates of civil commitment (35% of inmates released in 2001 were transferred to STU under an order of temporary commitment) compared with the actual rates of sex offending recidivism (recomission of a sexual crime) of approximately 9% for A.D. T .C. releasees and 13.4% rate based on a study of 23,000 released offenders). The actions of defendants, whereby they are committing to the STU 3-4 times as many individuals as might be expected to commit a new sex offense, clearly violates due process protections and far exceeds the authority of the state as recognized in Kansas v. Crane, 534 U.S. 407 (2002), (wherein only those sex offenders with a mental abnormality or disorder that causes a serious difficulty in their ability to control their sexually deviant behavior, creating the likelihood they will commit another sexual offense in the foreseeable future, are commitable). If less than 9% of those inmates who are released from A.D.T.C. commit a new sex offense, the discriminative standard in Crane is clearly not being met. The Eighth Amendment claims derive from a claim of deliberate indifference on the part of defendants who are alleged to have knowingly and maliciously engaged in a repeated pattern of behavior that is proscribed by accepted professional standards of care, practice and ethics for the fields of medicine, psychiatry and psychology. These include the prohibition against dual relationships, and the unauthorized disclosure of privileged and confidential information obtained in the course of a doctor/patient relationship. Courts have found knowing violations of accepted standards of medical practice to constitute deliberate indifference, and thus a violation of the Eighth Amendment of the United States Constitution. (Howard v. Evans, 922 F.2d 712, 719 (11th Cir. 1991) ("the contemporary standards and opinions of the medical profession are highly relevant in determining what constitutes deliberate indifference"); Smith v. Jenkins, 919 F.2d 90, 93 (8th Cir. 1990) (care that "so deviated from professional standards that it amounted to deliberate indifference"). The right of inmates to receive reasonable medical care to meet their needs has been recognized as applying to psychiatric or psychological needs as well (see Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 763 (3rd Cir. 1979). In New Jersey, the Appellate Court has already found that violations of inmate-therapist confidentiality, when embodied in administrative code, "may violate the prisoners' eighth amendment right to adequate psychological care." IMO Rules Regarding Inmate-Therapist Confidentiality, 224 N.J.Super. 252 (App.Div. 1988) cert. denied, 113 N.J. 323 (1988). The Appellate Court in this case clarified that, notwithstanding the fact that the therapist was employed by the prison, the duty of care owed was to the prisoner. Thus the Court observed:
Id. at 262. The implications of wholesale violations of confidential relationships and the violation of inmate- therapist/psychiatrist trust inherent in a dual relationship whereby the treating psychiatrist becomes the star witness for the State in an adversarial proceeding, compels the conclusion that immediate, irreparable and continuing harm will inure to the Plaintiffs absent immediate injunctive relief by the court. Continuing violations and deprivations of constitutionally guaranteed rights constitutes immediate and irreparable harm. Elrod v. Bums, 427 U.S. 347, 373, (1976). This principle has been applied in prison litigation generally. See Newsom v. Norris, 888 F.2d 371, 378 (6th Cir. 1989); Mitchell v. Cuomo, 748 F.2d 804, 806 (2nd Cir. 1984); Williams v. Lane, 646 F.Supp. 1379, 1409 (N.D.Ill. 1986), aff'd, 851 F.2d 867 (7th Cir. 1988), cert. denied, 109 S.Ct. 879 (1989), and specifically in prison medical care cases. Philips v. Michigan Dept. of Corrections, 731 F.Supp. 792, 801 (W.D.Mich. 1990), aff'd, 932 F.2d 969 (6th Cir. 1991). B. The Balance of Hardships favors the Plaintiffs In deciding whether to grant TRO's and preliminary injunctions, courts ask whether the suffering of the moving party if the motion is denied will outweigh the suffering of the non-moving party if the motion is granted. See e.g., Mitchell v. Cuomo, 748 F.2d, supra at 808 (holding that dangers posed by prison crowding outweighed state's financial and administrative concerns); Duran v. Anaya, 642 F.Supp. 510,527 (D.N.M. 1986) (holding that prisoners' interest in safety and medical care outweighed state's interest in saving money by cutting staff). Here, Plaintiffs' liberty interest in walking out of prison on their release dates are substantial, as are their interests in maintaining a healthy psychological and mental status, and a sustaining a belief in the sacred trust and confidence in the doctor/patient or therapist/patient relationship as they return to the community and participate in mental health counseling as part of their release plan. By contrast, the defendants' hardship is minimal. Provision of electronic recordings of psychiatric screening evaluations can be easily accomplished with no significant additional expenditure since the necessary recording equipment is already available within the A.D.T.C. Studio, and the costs of blank audio and/or videotapes are minimal. While the defendants would not be able to use certain psychiatric screenings already conducted to secure an order of temporary civil commitment, the provisions of the TRO could be quickly implemented by the Defendants. The Defendants would also incur some minor commitment of administrative staff resources in collecting the requisite records to be impounded by the order. The main additional cost to the state would be payments for the independent psychiatric screenings by Court appointed Special Master. However, this cost is minimal compared to the cost to Plaintiffs associated with the loss of their freedom, and moreover, would be more than made up for by the prevention of even one (1) inappropriate and unnecessary civil commitment, given the costs associated with housing a resident at STU for the period intervening between the temporary order of commitment and the final commitment order. C. The Plaintiffs are likely to succeed on the merits. The Plaintiffs have a great likelihood of success on the merits. The violations of Plaintiffs' rights fall squarely within the acts prohibited by the United States Supreme Court. See Vitek v. Jones, 445 U.S. 480, (1980) as well as Zinermon v. Burch, 110 S.Ct. 975 (1990). In Zinermon, the Court addressed a question similar in many respects to the Plaintiffs' claims here. In Zinermon, the plaintiff employed a screening process to admit and commit an individual to a state hospital for a period of several months, prior to conducting a full hearing to determine if the individual should be finally committed. The Court found liberty interests to attach to even the temporary commitment period.
Id. at 988.
Id. at 988. There can be no question but that liberty interests attach to the civil commitment screening process. Plaintiffs are subject to loss of freedom and liberty for 20 to 180 days or more, before having an opportunity to be heard at a final commitment hearing, whereas inmates not subject to the Civil Commitment Screening Process are released into the community upon their release date. Furthermore, substantial liberty interests also attach as a consequence of the Discharge Plan requirements of N.J.S.A. 30:4-27.3-B and 30:4-27.37. Even if the Court, at a final commitment hearing, determines that the plaintiff is not a sexually violent predator in need of civil commitment and orders his release, the statute requires for even that individual a Discharge Plan drawn up by treatment staff. Discharge Plans may impose significant restraints on varied liberty interests including, but not limited to, housing, employment, freedom of association, freedom of travel, compulsory financial burdens in the form of mandated psychotherapy, and freedom of speech and religion. Failure to comply with such a Discharge Plan may result in the placement of the individual in a designated facility for the custody, care and treatment of sexually violent predators. N.J.S.A. 30:4-27.37. Inmates nearing their release dates who are not subjected to the Civil Commitment Screening Process, are not subject to the statutorily required Discharge Plan, while any inmate is who is screened is at such risk, and any inmate for whom the state secures two clinical certificates pursuant to N.J.S.A. 30:4-27.28 are subject to such Discharge Plans. Moreover, the issue of a party's right to electronically record an evaluation compelled by an opposing party in a civil action has already been clearly decided in New Jersey. In B.D. v. Carley, 307 N.J. Super. 259 (App.Div. 1998), cert. denied, 113 N.J. 323 (1998) the court held:
Id. at 262. As civil commitment under SVPA is clearly a civil not a criminal action [see Kansas v. Hendricks, 521 U.S. 346 (1997)], protections to which parties are entitled attendant to a civil proceeding, apply to inmates being considered for civil commitment. Indeed, the Plaintiffs' interest in preserving evidence of the interview far exceeds any interest found compelling by the Court in Carley, as here Plaintiffs' liberty is at stake. Finally, the violations of accepted standards of medical/psychiatric/ psychological care are pervasive and clearly acknowledged by the public statements of the defendants themselves (especially with respect to "dual relationships" and violations of the scoring guidelines for the MnSOST-R). As noted above, such knowing and deliberate deviations from accepted professional standards constitutes deliberate indifference as acknowledged by the cases cited above. The standards for admission of expert testimony in New Jersey, generally under State v. Kelly, of 97 N.J. 178 (1984) and more explicitly with reference to SVPA evaluations in IMO Commitment of R.S., 173 N.J. 134 (2002) required the use of reliable and scientifically validated instruments in support of an expert witness's claim. Deviation from such standards renders such testimony inadmissible (see State v. Cavallo, 88 N.J. 508 (1982); State v. Fortin, 162 N.J. 517 (2000); State v. Raso, 321 N.J. Super. 5 (App. Div.1999) (where the court held deviation from accepted professional standards in the scoring and interpretation of a psychological test warranted exclusion of said testimony under New Jersey Rule of Evidence 702). A clinical certificate certifying sexually violent predator status, constitutes scientific expert testimony under Rule 702, and may not, therefore, be predicated upon methods which are unreliable and inadmissible under that Rule. Thus, Plaintiff is likely to prevail on that claim as well. D. The relief sought will serve the public interest. The public interest is always served when the law is obeyed. In this case, the grant of relief will serve the public interest because it is always in the public interest for even prison officials to obey the law. Duran v. Anaya, 642 F.Supp. supra. ("Respect for law, particularly by officials responsible for the administration of the state's correctional system, is in itself a matter of the highest public interest."); see also Llewelyn v. Oakland County Prosecutor's Office, 402 F.Supp. 1379, 1393 (E.D.Mich. 1975) ("the Constitution is the ultimate expression of the public interest"). Inmates are sentenced to A.D.T.C. for a course of specialized treatment designed to address their sexually deviant behavior so that they may make "an acceptable social adjustment to the community" upon their release. N.J.S.A. 2C:47-5. As noted above in the references to IMO Rules Regulating Inmate-Therapist Confidentiality, 224 N.J. Super, supra, confidentiality is a fundamental component of any successful therapeutic relationship, whereby inmates may feel free to explore all aspects of their thoughts, fantasies, emotions, experiences and interpersonal interactions that may contribute to, or trigger, their deviancy. The public interest in the ultimate release of sex offenders who have received medically, psychiatrically and psychologically adequate services, thus increasing the likelihood of their making an acceptable social adjustment to the community, is self-evident. The granting of relief will reestablish the confidence Plaintiffs must have in the therapeutic alliances they form with therapists and psychiatrist in order to fully benefit from the course of specialized treatment offered at A.D. T.C. POINT II THE PLAINTlFF SHOULD NOT BE REQUIRED TO POST SECURITY Usually a litigant who obtains interim injunctive relief is asked to post security. Fed.R.Civ.P. 65(c). However, the plaintiff is an indigent prisoner and is unable to post security. The court has discretion to excuse an impoverished litigant from posting security. Orantes-Hernandez v. Smith, 541 F.Supp. 351, 385, n. 30 (C.D.Cal.1982); J.L. v Parham, 412 F.Supp. 112, 140 (D.Ga. 1976), rev'd on other grounds, 442 U.S. 584,99 S.Ct. 2493 (1979). In view of the immediate and irreparable harm facing Plaintiffs, the Plaintiffs pray the Court grant the relief requested without requiring the posting of security.
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