Atkinson v. In the matter of the State of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

------------------------------------X

ANTHONY ATKINSON,

Plaintiff,

MEMORANDUM AND ORDER

-against- 20-CV-4497(JS)(ST)

GRACE OKOCHA; MICHAEL CONNOLLY;

CHRISTOPHER LALINE; C.O. LAROCK;

JASON D. EFFMAN; BRIAN BELFI, PH.D.;

DONNA HALL; JIMMIE C. MCCURDY; JOHN A.

THOMASSEN, PH.D.; TESLA CARRASQUILLO

ESQ.; ANN MARIE T. SULLIVAN; DEBBIE

WANCE; ANTHONY J. ANNUCCI; ANNE MARIE

MCGRATH; JONATHAN MILJUS, PH.D.;

Defendants.

------------------------------------X

APPEARANCES

For Plaintiff: Anthony Atkinson, pro se

96-A-4870

Central New York Psychiatric Center

Building 41, Unit 218

C# 63231

9005 Old River Road

Marcy, New York 13403-0300

For Defendants: No appearances.

SEYBERT, District Judge:

Before the Court is the Second Amended Complaint

timely filed by pro se plaintiff Anthony Atkinson (“Plaintiff”)

pursuant to the Court’s January 5, 2021 Memorandum and Order.

(See Jan. 5, 2021 Order, ECF No. 24; Second Amended Complaint

(“SAC”), ECF No. 25.) For the reasons that follow, the Second

Amended Complaint is sua sponte DISMISSED pursuant to 28 U.S.C. §§

1915(e)(2)(B), 1915A(b).

BACKGROUND1

I. Procedural History

Plaintiff is no stranger to this Court.2 The Court

assumes familiarity with the facts and procedural history and only

addresses those facts relevant to the Court’s screening of the

Second Amended Complaint pursuant to 28 U.S.C. §§ 1915(e), 1915A.

By way of brief background, Plaintiff was convicted of first-

degree rape on June 21, 1996 in the New York State Supreme Court,

Suffolk County, and was sentenced to twenty-three years in prison

with a maximum release date of September 28, 2018. (See Jan. 5,

2021 Order at 2.) Prior to his release date, the state moved to

further detain Plaintiff under Article 10 of the Mental Hygiene

Law, also known as the Sex Offender Management and Treatment Act

(“SOMTA”). (Id. at 5-6.) On September 14, 2018, the state court

judge ordered that Plaintiff be detained past his maximum release

date pending a probable cause hearing under Article 10. (Id. at

1 All material allegations in the Second Amended Complaint are

presumed to be true for the purpose of this Order. Rogers v. City

of Troy, 148 F.3d 52, 58 (2d Cir. 1998).

2 See Atkinson v. Broesler, No. 93-CV-1346, ECF No. 14 (E.D.N.Y.)

(voluntarily dismissing complaint with prejudice); Atkinson v.

Geraci, No. 98-CV-1609, ECF No. 82 (E.D.N.Y.) (granting summary

judgment to defendants and dismissing Section 1983 complaint);

Atkinson v. Portuondo, 269 F. Supp. 2d 57 (E.D.N.Y. 2003) (denying

habeas corpus petition on the merits), reconsideration denied, No.

00-CV-3573, 2009 WL 2983006, at *1 (E.D.N.Y. Sept. 10, 2009)

(detailing Plaintiff’s efforts to reopen the habeas corpus

proceedings and entering a litigation injunction).

6.) On January 4, 2019, Suffolk County Supreme Court Justice

Richard Ambro ordered Plaintiff’s civil confinement and Plaintiff

was transferred to the Manhattan Psychiatric Center on January 31,

2019. (Id.) Following a bench commitment trial on October 10,

2019, Justice Ambro found in favor of the state psychiatrists and

held that Plaintiff has a mental abnormality as defined by New

York Mental Hygiene Law section 10.03(e). (Id.) On or about

March 8, 2020, Justice Ambro held a hearing, during which Plaintiff

was represented by appointed counsel. (Id.) Justice Ambro

considered Plaintiff’s eligibility for Strict and Intensive

Supervision and Treatment (“SIST”) and again ordered Plaintiff’s

civil confinement. (Id.)

Plaintiff initially brought claims seeking his release

from custody and challenging the conditions of confinement and

deprivation of property. (See generally Am. Compl., ECF No. 9.)

On August 14, 2020, this Court dismissed these claims for failure

to state a claim without leave to amend. (Order to Show Cause,

ECF No. 10, at 6, 11-12.) Thus, the only remaining claims were

those arising out of the alleged failure to provide Plaintiff with

a timely probable cause hearing under Article 10. (Id.)

However, as discussed in this Court’s January 5, 2021

Order, Plaintiff failed to properly allege claims based on the

alleged failure to timely provide a probable cause hearing.

Specifically, the Amended Complaint failed to allege “facts

showing how any defendant personally caused the delay in the

probable cause hearing.” (Jan. 5, 2021 Order at 10.) The

undersigned apprised Plaintiff that his “failure to allege any

Defendants’ personal involvement [in the alleged delay of the

probable cause hearing] is fatal to [his] claims,” and that

Plaintiff’s description of “the general roles the Defendants

played in the civil commitment process” will not suffice. (Id.)

Further, the Court explained that “Plaintiff cannot establish

liability solely based on the supervisory positions these

Defendants hold,” noting that “many of the named Defendants are

either immune from suit or are otherwise not proper Defendants

under § 1983.” (Id. at 11.) Finally, the Court observed that

“although Plaintiff seeks a fifteen million dollars in damages

award from each Defendant, Plaintiff has not alleged how the brief

delay in holding the probable cause hearing harmed Plaintiff,

particularly given the fact that his continued detention was

ordered.” (Id. at 11-12.) The Court continued, “Wholly absent

from the Amended Complaint are any allegations concerning how

Plaintiff’s continued civil commitment as ordered on January 4,

2019 -- rather than within seventy-two hours from his maximum

release date of September 28, 2018 -- harmed Plaintiff.” (Id. at

12.)

Nevertheless, the Court granted Plaintiff leave to file

a Second Amended Complaint limited only to curing the defects in

such claims. (See id. at 12-13.) The Court directed Plaintiff

to “include facts concerning each named Defendant and shall allege

how each Defendant violated Plaintiff’s constitutional rights.”

(Id. at 13.)

II. The Second Amended Complaint

Although the Second Amended Complaint is twenty-one

pages exclusive of exhibits, only the first three pages are new.

(Compare SAC, with Am. Compl.) Plaintiff has appended the Amended

Complaint he had filed on June 15, 2020 to his Second Amended

Complaint with minor annotations. (SAC at 4-21.) Like his

Amended Complaint, Plaintiff broadly alleges that his ongoing

civil confinement is unconstitutional, that he is being denied

adequate mental health treatment, and that his personal property

has been lost. 3 (See generally SAC.) However, because

3 Although the Second Amended Complaint does not identify the

Defendants in the caption, it appears from the substance that

Plaintiff continues to hold the following individuals liable:

Grace Okocha, Acting Treatment Team Leader at Manhattan

Psychiatric Center (“MPC”); Michael Connolly, Civil Commitment

Bureau Chief of the Office of the Attorney General; Christopher

Laline, Assistant Attorney General; Corrections Officer LaRock,

Draft Officer at Gouverneur Correctional Facility; Brian Belfi,

Ph.D., Executive Director of MPC at Wards’ Island Complex; Donna

Hall, Associate Commissioner, Forensic Services at the Office of

Mental Health; Jimmie C. McCurdy, Assistant Attorney General; John

A. Thomassen, Ph.D., psychologist; Tesla Carrasquillo, attorney at

Creedmoor Psychiatric Center; Ann Marie T. Sullivan, Office of

Mental Health Commissioner; Debbie Wance, Supervisor, MPC; Anthony

J. Annucci, Commissioner of the New York State Department of

Corrections and Community Supervision (“DOCCS”); DOCCS Associate

Commissioners Jason D. Effman and Anne Marie McGrath; and Jonathan

Miljus, Ph.D., Psychiatric Examiner at the Office of Mental Health,

Plaintiff’s claims seeking his release from custody and his

conditions of confinement and deprivation of property claims were

previously dismissed for failure to state a claim and without leave

to amend (see Order to Show Cause), the only remaining claims are

those arising out of the alleged failure to provide Plaintiff with

a timely probable cause hearing under Article 10.4

The allegations Plaintiff added in his Second Amended

Complaint provide few new facts and are largely comprised of

conclusory allegations. For example, the Second Amended Complaint

begins: “State of New York Attorney General and O.M.H. Commissioner

Ann Marie T. Sullivan kn[e]w or should have known the legal

procedures of M.H.L 10.06(h), and (g)-(k).” (SAC ¶ 2.) Further,

“State of New York Attorney General and O.M.H. along with DOCCS

Commissioner Anthony Annucci, and DOCCS Associate Commissioner

Anne Marie McGrath, acted . . . with deliberate indifference and

callous disregard for Plaintiff’s Constitutional Right of his

liberty protected by the Due Process clause who has a liberty

interest in being released on his Maximum Expiration date of

September 28, 2018.” (Id. ¶ 4.) The Second Amended Complaint

continues: “The State of New York Attorney Generals neglect to

Division of Forensic Services.

4 Moreover, insofar as Plaintiff challenges the conditions of his

confinement at the Manhattan Psychiatric Center and/or the Central

New York Psychiatric Center, this Court is not the proper venue.

hold a timely probable cause hearing pursuant to M.H.L.

10.06(h),(g)-(k) resulted in false arrest and imprisonment, and

abuse of process and intentional infliction of emotional distress,

where the statute defines or creates a duty, which was breached by

the official. Where, officials know or should know the rules of

law.” (Id. ¶ 15.)

Plaintiff’s only alleged injury is “extreme emotional

distress.” (Id. ¶ 8.) As a result of the foregoing, Plaintiff

seeks to recover, inter alia, a damages award against each

Defendant in the sum of fifteen million dollars. (Id. ¶ 87.)

DISCUSSION

I. Legal Standards

Courts are obliged to liberally construe the pleadings

of a pro se plaintiff. See Sealed Plaintiff v. Sealed Defendant,

537 F.3d 185, 191 (2d Cir. 2008); McEachin v. McGuinnis, 357 F.3d

197, 200 (2d Cir. 2004). However, a complaint must plead

sufficient facts to “state a claim to relief that is plausible on

its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

“A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

The plausibility standard requires “more than a sheer possibility

that a defendant has acted unlawfully.” Id. at 678; accord Wilson

v. Merrill Lynch & Co., 671 F.3d 120, 128 (2d Cir. 2011). While

“detailed factual allegations” are not required, “[a] pleading

that offers ‘labels and conclusions’ or ‘a formulaic recitation of

the elements of a cause of action will not do.’” Iqbal, 556 U.S.

at 678 (quoting Twombly, 550 U.S. at 555).

Moreover, under 28 U.S.C. § 1915, the Court must dismiss

an in forma pauperis action that is frivolous or malicious, fails

to state a claim upon which relief may be granted, or seeks

monetary relief against a defendant who is immune from such relief.

See 28 U.S.C. §§ 1915(e)(2)(B)(i)-(iii), 1915A(b); Liner v. Goord,

196 F.3d 132, 134 & n.1 (2d Cir. 1999) (noting that under sections

1915 and 1915A, sua sponte dismissals of frivolous prisoner

complaints are not only permitted but mandatory).

II. Plaintiff’s Section 1983 Claim

Liberally construed, Plaintiff’s Second Amended

Complaint seeks damages arising out of an alleged denial of due

process due to a delay in the probable cause hearing mandated by

New York Mental Hygiene Law section 10.06(h). As a preliminary

matter, any claims for money damages against the Defendants, who

are largely state employees, in their official capacities are

barred by the Eleventh Amendment. See, e.g., Abernathy v. Comm’r

of Corr., No. 20-CV-00628, 2021 WL 1240018, at *3 (D. Conn. Apr.

2, 2021) (citing Kentucky v. Graham, 473 U.S. 159, 169 (1985));

Roache v. Attorney General’s Office, No. 12-CV-1304, 2013 WL

5503151, at *14 (N.D.N.Y. Sept. 30, 2013) (holding that government

attorneys such as assistant attorneys general are immune from

suit).

As the Court recognized in its January 5, 2021 Order,

“[c]ivil commitment for any purpose requires due process

protection.” (See Jan. 5, 2021 Order at 8-9 (quoting Best v.

Schneider, No. 12-CV-6142, 2015 WL 5567062, at *11 (E.D.N.Y. Sept.

21, 2015) (further citations omitted)).) Indeed, “[i]ndividuals

who have been civilly committed retain substantive due process

rights.” Aiello v. Lamitie, No. 16-CV-0053, 2020 WL 918989, at

*5 (N.D.N.Y. Feb. 26, 2020) (citing Youngberg v. Romeo, 457 U.S.

307, 315-16 (1982)). “In deciding a due process claim under §

1983, however, federal courts must independently assess whether

the state’s application of these procedures to the plaintiff’s

case violated a constitutional right.” Id. (citing Charles W. v.

Maul, 214 F.3d 350, 357 (2d Cir. 2000)).

The Second Amended Complaint adds no new facts in support

of Plaintiff’s due process claims. (See generally SAC.)

Plaintiff conflates the requirements of state law with the

requirements of the due process clause. Article 10 of the Mental

Hygiene Law (“MHL”) creates a statutory scheme prescribing the

procedures to be followed with respect to convicted sex offenders

who the state seeks to commit or supervise following completion of

their prison terms. See Mental Hygiene Legal Servs. v. Spitzer,

No. 07-CV-2935, 2007 WL 4115936, at *4 (S.D.N.Y. Nov. 16, 2007),

aff’d sub nom. Mental Hygiene Legal Servs. v. Paterson, No. 07-

CV-5548, 2009 WL 579445 (2d Cir. Mar. 4, 2009). Pursuant to the

MHL, a detained individual is entitled to a probable cause hearing

“no later than seventy-two hours from the date of [his] anticipated

release date.” See NY MENTAL HYG. LAW § 10.06(h); Roache, 2013 WL

5503151, at *5 (detailing statutory scheme for protecting due

process rights of civil detainees, including right to timely

probable cause hearing). “Though the probable cause hearing is

initially scheduled to be held within 72 hours of the filing of a

securing petition, the probable cause hearing may be delayed due

to (i) delay caused or consented to by the individual, or (ii) a

showing by the Attorney General, to the satisfaction of the court,

of ‘good cause why the hearing could not . . . commence.’”

Spitzer, 2007 WL 4115936, at *8 (quoting NY MENTAL HYG. LAW §

10.06(h)). Further, MHL provides that in the event of the filing

of a securing petition, “there shall be no probable cause hearing

until such time as the case review team may find that the

respondent is a sex offender requiring civil management.” NY

MENTAL HYG. LAW § 10.06(f). Thus, although Article 10 mandates that

a probable cause hearing be held within seventy-two hours, the

fact that Plaintiff’s probable cause hearing under Article 10 was

held on January 4, 2019, i.e., more than seventy-two hours after

the September 14, 2018 order of detention, does not necessarily

implicate the due process clause.

To begin a due process analysis, on the other hand, the

Court first determines whether Plaintiff had a protected liberty

interest in remaining free from the confinement that he challenges,

and then determines whether the Defendants deprived plaintiff of

that liberty interest without due process. Giano v. Selsky, 238

F.3d 223, 225 (2d Cir. 2001). Undoubtedly, Plaintiff has a liberty

interest in remaining free from involuntary commitment to a mental

hospital. See Vitek v. Jones, 445 U.S. 480, 493 (1980). The

issue here is whether Plaintiff was afforded the appropriate

procedural safeguards in connection with his civil commitment

given the approximate three-month delay in his probable cause

hearing.

The Court finds it unnecessary to reach this issue,

however, because Plaintiff has not alleged the personal

involvement of any Defendant. The Court made clear that a Section

1983 claim against an individual defendant must allege the personal

involvement of the defendant in the alleged constitutional

deprivation.5 (See Jan. 5, 2021 Order at 9 (citing Farid v. Elle,

5 A plaintiff properly asserts personal involvement by alleging:

“(1) actual direct participation in the constitutional violation,

(2) failure to remedy a wrong after being informed through a report

or appeal, (3) creation of a policy or custom that sanctioned

conduct amounting to a constitutional violation, or allowing such

policy or custom to continue, (4) grossly negligent supervision of

subordinates who committed a violation, or (5) failure to act on

information indicating that unconstitutional acts were occurring.”

593 F.3d 233, 249 (2d Cir. 2010)). “It is well settled that, in

order to establish a defendant’s individual liability in a suit

brought under § 1983, a plaintiff must show, inter alia, the

defendant’s personal involvement in the alleged constitutional

deprivation.” Grullon v. City of New Haven, 720 F.3d 133, 138 (2d

Cir. 2013). Thus, “a Section 1983 plaintiff must ‘allege a

tangible connection between the acts of the defendant and the

injuries suffered.’” Austin v. Pappas, No. 04-CV-7263, 2008 WL

857528, *2 (S.D.N.Y. Mar. 31, 2008) (quoting Bass v. Jackson, 790

F.2d 260, 263 (2d Cir. 1986)).

Moreover, as the Second Circuit recently made clear,

“there is no special rule for supervisory liability” and, in order

“[t]o hold a state official liable under § 1983, a plaintiff must

plead and prove the elements of the underlying constitutional

violation directly against the official without relying on a

special test for supervisory liability.” Tangreti v. Bachmann,

983 F.3d 609, 619-20 (2d Cir. 2020). Where a Section 1983 claim

fails to allege the personal involvement of the defendant, it fails

as a matter of law. See Johnson v. Barney, 360 F. App’x 199, 201

(2d Cir. 2010).

Here, as is readily apparent, Plaintiff has not alleged

any facts regarding conduct or inaction by any of the Defendants

Hernandez v. Keane, 341 F.3d 137, 145 (2d Cir. 2003), cited in

Jan. 5, 2021 Order at 9, n.6.

with regard to the civil commitment process and specifically the

scheduling and/or delay of the probable cause hearing. Rather,

Plaintiff includes wholly conclusory and speculative allegations

against several of the Defendants. (See generally SAC.) For

example, Plaintiff alleges that Defendant Sullivan “kn[e]w or

should have known the legal procedures” and that several of the

Defendants “acted with deliberate indifference and callous

disregard for Plaintiff’s Constitutional Right of his liberty

protected by the Due Process Clause. . . .” (SAC ¶¶ 2, 4.) The

failure to allege any facts demonstrating any Defendants’ personal

involvement is fatal to Plaintiff’s claims. See Spavone v. N.Y.

State Dep’t of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013)

(holding that a plaintiff proceeding under Section 1983 must allege

facts showing the defendants’ direct and personal involvement in

the alleged constitutional deprivation); see also Roache, 2015 WL

1442963, at *10 (dismissing MHL Article 10 claim for failure to

name personally involved defendants who were not immune from suit);

Roache, No. 12-CV-1034, Adoption Order, ECF No. 63 (adopting Report

and Recommendation recommending dismissal of due process claim

arising from a delayed probable cause hearing under the MHL because

Plaintiff’s conclusory allegations that each defendant knew or

should have known that he was being improperly held in violation

of MHL Article 10 were insufficient). On this basis, the Second

Amended Complaint is DISMISSED pursuant to 28 U.S.C. §§

1915(e)(2)(B), 1915A(b).

Finally, although Plaintiff seeks a fifteen million

dollars in damages award from each Defendant, Plaintiff has not

alleged how the brief delay in holding the probable cause hearing

harmed Plaintiff, particularly given the fact that his continued

detention was ordered. Bass, 790 F.2d at 263 (holding a plaintiff

must show “a tangible connection between the acts of a defendant

and the injuries suffered” to prevail on a Section 1983 cause of

action against an individual). Like the Amended Complaint, the

Second Amended Complaint omits any factual allegations concerning

how Plaintiff’s continued civil commitment as ordered on January

4, 2019 -- rather than within seventy-two hours from his maximum

release date of September 28, 2018 -- harmed Plaintiff given that

his continued detention was ultimately ordered.

Accordingly, Plaintiff fails to allege a plausible claim

for relief and the SAC is DISMISSED pursuant to 28 U.S.C. §§

1915(e)(2)(B), 1915A(b).

III. Leave to Amend

The Court should ordinarily grant a pro se plaintiff the

opportunity “to amend at least once when a liberal reading of the

complaint gives any indication that a valid claim might be stated.”

Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009)

(internal quotation marks and citation omitted). However, “an

opportunity to amend is not required where the plaintiff has

already been afforded the opportunity to amend.” Roache, 2019 WL

6827296, at *5 (citing Shuler v. Brown, No. 07-CV-0937, 2009 WL

790973, at *5 & n.25 (N.D.N.Y. March 23, 2009) (“Of course, an

opportunity to amend is not required where the plaintiff has

already amended his complaint.”)); see also Yang v. N.Y.C. Trans.

Auth., No. 01-CV-3933, 2002 WL 31399119, at *2 (E.D.N.Y. Oct. 24,

2002) (denying leave to amend where plaintiff had already amended

complaint once); Advanced Marine Tech. v. Burnham Sec., Inc., 16

F. Supp.2d 375, 384 (S.D.N.Y. 1998) (same).

Here, Plaintiff was afforded that opportunity and the

Court clearly set forth, at a minimum, what is required to

plausibly allege his due process claims against the Defendants.

Rather than attempt to cure his allegations, Plaintiff simply

appended his deficient Amended Complaint to his Second Amended

Complaint and resubmitted it. Accordingly, it appears that leave

to further amend would be futile.

Moreover, given that Plaintiff has not suffered any

physical injuries as a result of the alleged delay in his probable

cause hearing, leave to amend this claim would be futile. See 28

U.S.C. § 1997e(e) (“No Federal civil action may be brought by a

prisoner confined in a jail, prison, or other correctional

facility, for mental or emotional injury suffered while in custody

without a prior showing of physical injury. . . .); see Oneil v.

Rodriguez, No. 18-CV-3287, 2020 WL 5820548, at *5 (E.D.N.Y. Sept.

30, 2020) (dismissing Section 1983 claim where allegations were

insufficient to meet the “physical injury” requirement of Section

1997e(e)); Dash v. Doe, No. 19-CV-0414, 2020 WL 3057133, at *4

(S.D.N.Y. June 9, 2020) (“[I]n the absence of a showing of physical

injury, a prisoner cannot recover compensatory damages for mental

or emotional injury.” (internal quotation marks and citation

omitted)). Accordingly, LEAVE TO FURTHER AMEND THE COMPLAINT IS

DENIED.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

CONCLUSION

For the reasons set forth above, Plaintiff’s Second

Amended Complaint is sua sponte DISMISSED pursuant to 28 U.S.C. §§

1915(e)(2)(B), 1915A(b). The Clerk of the Court shall ENTER

JUDGMENT and mark this case CLOSED.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)

that any appeal from this Order would not be taken in good faith

and therefore in forma pauperis status is DENIED for the purpose

of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-

45 (1962).

The Clerk of the Court is directed to mail a copy of

this Order to the pro se Plaintiff.

SO ORDERED.

/s/ JOANNA SEYBERT______

Joanna Seybert, U.S.D.J.

Dated: April _19_, 2021

Central Islip, New York