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New York's Sex Offender Treatment Program Enjoined; Stay Issued Pending Appeal
by Bob Williams
The United States District Court for the Northern District of New York ruled that New York's program for treating convicted state sex offenders violates the Fifth Amendment's guarantee against compulsory self-incrimination and issued a preliminary injunction. The Second Circuit has issued a stay pending appeal.
In 2002, the United States Supreme Court issued its plurality decision in McKune v. Lile, 122 S.Ct. 2012, finding that a convicted sex offender's Fifth Amendment privilege against compulsory self-incrimination is not violated by a treatment program that requires admitting to all past sexual behavior whether or not charged for it. Lile faced only loss of privileges and transfer to a higher security facility, not the more serious consequences of an extended term of incarceration or loss of good time credits, nor was his release from prison affected. [See: PLN, Oct. 2002, P. 8.)
David Donhauser, a New York state prisoner, faced these more serious consequences when he refused to admit to unlawful sexual acts as part of New York's Sex Offender Counseling Program (SOCP). Donhauser had entered a plea under North Carolina v. Alford, 91 S.Ct. 160 (1970), which does not require admission of guilt, allowing factual innocence to be maintained. Donhauser was sentenced to three to six years imprisonment for rape and burglary.
On April 20, 2000, Donhauser was recommended" for SOCP, a program that was not part of his plea or sentence. SOCP requires accepting responsibility for the crime underlying the current conviction and divulging any prior sexually criminal acts whether or not charges were or have yet to be brought. Any evidence of child physical and/or sexual abuse that has occurred or is planned and any specific details of previous crimes for which the offender has not been charged" must be reported by counselors to the appropriate authorities so that society will be protected.
Donhauser was advised in writing the same day that a refusal to participate would result in a loss of good-time [credits]." The program manual further states that prisoners refusing the program should be made aware of the negative impact his/her decision may have on ... Time Allowance Committee decisions.
Moreover, Donhauser produced an internal memo which declared that all good time is to be taken whenever it can be documented that an inmate has refused to participate in recommended sex offender programs." Letters from a counselor and a correction's department attorney were received in 2001 informing Donhauser that there would be a negative impact on his earning good time" and that he must participate in the SOCP or lose his good time and other privileges." Donhauser did not refuse participation as long as he did not have to self-incriminate. Donhauser's good time credits were subsequently withheld and affirmed on administrative review.
Donhauser filed a complaint pursuant to 42 U.S.C. § 1983 asserting claims of Fifth Amendment violations for (a) being compelled to self-incriminate or face automatic loss of good time and (b) denial of parole for refusing the SOCP. Claims for privacy, equal protection, and due process violations were also alleged. Donhauser sought declaratory and injunctive relief plus damages. A magistrate recommended complete dismissal pursuant to F.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief could be granted. Donhauser objected.
United States District Judge David N. Hurd dismissed Donhauser's privacy, equal protection, and due process claims. The Court granted the state qualified immunity, thus precluding damages, finding that while a prisoners right to be free from compelled self-incrimination has long been established ... the standard defining that right ... has not." Since Donhauser could not prove his parole denial was a direct result of his refusing treatment, that claim was also dismissed.
Leaving withdrawal of good time credits (affecting length of incarceration) as compulsion for self-incrimination, the Court acknowledged no concise and definitive standard" exists for Fifth Amendment compulsion challenges by prisoners. The judge took a comprehensive approach, applying the vast sea of compulsion principles applied by the various opinions in McKune and the federal appellate decisions that followed" to find that the loss of good time credits imposed automatically and directly for [Donhauser's] failure to give up his right to silence and participate in the program, violated every single one of them.
The Court first addressed whether McKune was even factually on point. McKune's plurality found important to its analysis that no extended term of incarceration was at stake nor was any eligibility for good time credits or parole. This critical area, the Court found, clearly distinguished McKune.
The Court also distinguished Johnson v. Baker, 108 F.3d 10 (2d Cir. 1997), as factually inconsistent where the privilege at issue (a family visitation program) did not affect the term of incarceration.
The McKune plurality adopted the atypical and significant hardship" test of Sandin v. Conner, 115 S.Ct. 2293 (1995). Judge Hurd refused to apply this standard on two grounds:
(1) Sandin involved identifying the constitutionally protected property or liberty interest at stake. Judge Hurd agreed with the pre McKune Tenth Circuit decision that nowhere in the relevant jurisprudence does the Supreme Court even hint that an individual attempting to show a violation of his Fifth Amendment privilege must have a protected liberty interest for compulsion to occur." See: Lile v. McKune, 224 F.3d 1175, 1183 (10th Cir. 2000). The McKune dissent also agreed.
(2) By recognizing Supreme Court precedent which holds when a fragmented court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds." Because Justice O'Connor concurred on the narrowest grounds, her opinion rejecting the Sandin standard is controlling.
Nevertheless, Judge Hurd undertook an independent analysis and also rejected Sandin. To find an analytical framework, Judge Hurd grouped the myriad and often overlapping Fifth Amendment principles" into four categories:
Classification of adverse consequences. Were the loss of Donhauser's good time credits the loss of a potential benefit or a penalty? The Court found that one can wax philosophical all he or she wants as to the true motivations of correctional officials, but it takes little imagination to conceive that such officials would threaten or impose the loss of good time credits as a direct result of [Donhauser's] failure to participate" in a recommended" program that is actually an order.
The severity of the adverse consequences. In concurring in McKune, Justice O'Connor, cautious to exclude from her non-severe determination consequences like those suffered by Donhauser, noted that penalties such as longer incarceration and execution ... are far greater than those ... already held to constitute unconstitutional compulsion...." Hurd found Donhauser's consequences for invoking the self-incrimination privilege were found serious and potent.
Whether participation is voluntary. The Court found the SOCP mandatory in that New York presented Donhauser with a Hobson's choice: participate and confess or refuse and stay in prison longer.
Balancing approach. Citing the four-prong balancing test set forth in Turner v. Safely, 107 S.Ct. 2254 (1987), Judge Hurd found (1) there exists a valid, rational connection between the SOCP and the state's interest in rehabilitating prisoners for safe return to society." (2) There was no other way Donhauser could assert his self-incrimination privilege. (3) There was no evidence regarding the impact accommodating Donhauser's rights would have on guards and other prisoners. (4) The fourth Turner factor, an alternative means at de minimis cost, the Court explored in depth finding New York could offer use immunity which would protect prisoner's constitutional rights and allow them to freely discuss their crimes and receive necessary treatment, while the state could still use the information as an investigatory tool though the admissions themselves could not be used as evidence in a subsequent prosecution.
Corrections Commissioner Goord, responding to the ruling, said that use immunity places an intolerable burden" on prosecutors. He declared that he would not grant inmates use immunity that is tantamount to a stay out of jail card complicating attempts to convict them of other crimes." Goord said that use immunity grants inmates a sword with which to fight prosecution rather than a shield protecting their rights.
The Court issued a preliminary injunction at first enjoining New York from requiring prisoners to divulge a history of sexual conduct as part of the SOCP. On April 23, 2004, the preliminary injunction was vacated and amended to enjoin New York from depriving a prisoner of good time credits for refusing to divulge their sexual history in the SOCP. A stay pending appeal, granted by the Second Circuit on May 25, 2004, allowed New York to reinstate its program with about 650 participating prisoners. PLN will report on the appeal result when it's released. See: Donhauser v. Goord, preliminary injunction granted 314 F.Supp.2d 139, vacated and amended 317 F.Supp.2d 160 (N.D.N.Y. 2004).
With many states civilly committing prisoners convicted of sex offenses after they have served their criminal sentences and the prospect of additional prosecutions, it is rarely advisable to confess in any prison therapy" or rehabilitation" program to any uncharged or unprocessed crimes that may have been committed absent a binding immunity agreement. Prison therapists routinely testify against their prisoner patients" in civil commitment and criminal prosecutions about disclosures made during treatment.
The United States District Court for the Northern District of New York ruled that New York's program for treating convicted state sex offenders violates the Fifth Amendment's guarantee against compulsory self-incrimination and issued a preliminary injunction. The Second Circuit has issued a stay pending appeal.
In 2002, the United States Supreme Court issued its plurality decision in McKune v. Lile, 122 S.Ct. 2012, finding that a convicted sex offender's Fifth Amendment privilege against compulsory self-incrimination is not violated by a treatment program that requires admitting to all past sexual behavior whether or not charged for it. Lile faced only loss of privileges and transfer to a higher security facility, not the more serious consequences of an extended term of incarceration or loss of good time credits, nor was his release from prison affected. [See: PLN, Oct. 2002, P. 8.)
David Donhauser, a New York state prisoner, faced these more serious consequences when he refused to admit to unlawful sexual acts as part of New York's Sex Offender Counseling Program (SOCP). Donhauser had entered a plea under North Carolina v. Alford, 91 S.Ct. 160 (1970), which does not require admission of guilt, allowing factual innocence to be maintained. Donhauser was sentenced to three to six years imprisonment for rape and burglary.
On April 20, 2000, Donhauser was recommended" for SOCP, a program that was not part of his plea or sentence. SOCP requires accepting responsibility for the crime underlying the current conviction and divulging any prior sexually criminal acts whether or not charges were or have yet to be brought. Any evidence of child physical and/or sexual abuse that has occurred or is planned and any specific details of previous crimes for which the offender has not been charged" must be reported by counselors to the appropriate authorities so that society will be protected.
Donhauser was advised in writing the same day that a refusal to participate would result in a loss of good-time [credits]." The program manual further states that prisoners refusing the program should be made aware of the negative impact his/her decision may have on ... Time Allowance Committee decisions.
Moreover, Donhauser produced an internal memo which declared that all good time is to be taken whenever it can be documented that an inmate has refused to participate in recommended sex offender programs." Letters from a counselor and a correction's department attorney were received in 2001 informing Donhauser that there would be a negative impact on his earning good time" and that he must participate in the SOCP or lose his good time and other privileges." Donhauser did not refuse participation as long as he did not have to self-incriminate. Donhauser's good time credits were subsequently withheld and affirmed on administrative review.
Donhauser filed a complaint pursuant to 42 U.S.C. § 1983 asserting claims of Fifth Amendment violations for (a) being compelled to self-incriminate or face automatic loss of good time and (b) denial of parole for refusing the SOCP. Claims for privacy, equal protection, and due process violations were also alleged. Donhauser sought declaratory and injunctive relief plus damages. A magistrate recommended complete dismissal pursuant to F.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief could be granted. Donhauser objected.
United States District Judge David N. Hurd dismissed Donhauser's privacy, equal protection, and due process claims. The Court granted the state qualified immunity, thus precluding damages, finding that while a prisoners right to be free from compelled self-incrimination has long been established ... the standard defining that right ... has not." Since Donhauser could not prove his parole denial was a direct result of his refusing treatment, that claim was also dismissed.
Leaving withdrawal of good time credits (affecting length of incarceration) as compulsion for self-incrimination, the Court acknowledged no concise and definitive standard" exists for Fifth Amendment compulsion challenges by prisoners. The judge took a comprehensive approach, applying the vast sea of compulsion principles applied by the various opinions in McKune and the federal appellate decisions that followed" to find that the loss of good time credits imposed automatically and directly for [Donhauser's] failure to give up his right to silence and participate in the program, violated every single one of them.
The Court first addressed whether McKune was even factually on point. McKune's plurality found important to its analysis that no extended term of incarceration was at stake nor was any eligibility for good time credits or parole. This critical area, the Court found, clearly distinguished McKune.
The Court also distinguished Johnson v. Baker, 108 F.3d 10 (2d Cir. 1997), as factually inconsistent where the privilege at issue (a family visitation program) did not affect the term of incarceration.
The McKune plurality adopted the atypical and significant hardship" test of Sandin v. Conner, 115 S.Ct. 2293 (1995). Judge Hurd refused to apply this standard on two grounds:
(1) Sandin involved identifying the constitutionally protected property or liberty interest at stake. Judge Hurd agreed with the pre McKune Tenth Circuit decision that nowhere in the relevant jurisprudence does the Supreme Court even hint that an individual attempting to show a violation of his Fifth Amendment privilege must have a protected liberty interest for compulsion to occur." See: Lile v. McKune, 224 F.3d 1175, 1183 (10th Cir. 2000). The McKune dissent also agreed.
(2) By recognizing Supreme Court precedent which holds when a fragmented court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds." Because Justice O'Connor concurred on the narrowest grounds, her opinion rejecting the Sandin standard is controlling.
Nevertheless, Judge Hurd undertook an independent analysis and also rejected Sandin. To find an analytical framework, Judge Hurd grouped the myriad and often overlapping Fifth Amendment principles" into four categories:
Classification of adverse consequences. Were the loss of Donhauser's good time credits the loss of a potential benefit or a penalty? The Court found that one can wax philosophical all he or she wants as to the true motivations of correctional officials, but it takes little imagination to conceive that such officials would threaten or impose the loss of good time credits as a direct result of [Donhauser's] failure to participate" in a recommended" program that is actually an order.
The severity of the adverse consequences. In concurring in McKune, Justice O'Connor, cautious to exclude from her non-severe determination consequences like those suffered by Donhauser, noted that penalties such as longer incarceration and execution ... are far greater than those ... already held to constitute unconstitutional compulsion...." Hurd found Donhauser's consequences for invoking the self-incrimination privilege were found serious and potent.
Whether participation is voluntary. The Court found the SOCP mandatory in that New York presented Donhauser with a Hobson's choice: participate and confess or refuse and stay in prison longer.
Balancing approach. Citing the four-prong balancing test set forth in Turner v. Safely, 107 S.Ct. 2254 (1987), Judge Hurd found (1) there exists a valid, rational connection between the SOCP and the state's interest in rehabilitating prisoners for safe return to society." (2) There was no other way Donhauser could assert his self-incrimination privilege. (3) There was no evidence regarding the impact accommodating Donhauser's rights would have on guards and other prisoners. (4) The fourth Turner factor, an alternative means at de minimis cost, the Court explored in depth finding New York could offer use immunity which would protect prisoner's constitutional rights and allow them to freely discuss their crimes and receive necessary treatment, while the state could still use the information as an investigatory tool though the admissions themselves could not be used as evidence in a subsequent prosecution.
Corrections Commissioner Goord, responding to the ruling, said that use immunity places an intolerable burden" on prosecutors. He declared that he would not grant inmates use immunity that is tantamount to a stay out of jail card complicating attempts to convict them of other crimes." Goord said that use immunity grants inmates a sword with which to fight prosecution rather than a shield protecting their rights.
The Court issued a preliminary injunction at first enjoining New York from requiring prisoners to divulge a history of sexual conduct as part of the SOCP. On April 23, 2004, the preliminary injunction was vacated and amended to enjoin New York from depriving a prisoner of good time credits for refusing to divulge their sexual history in the SOCP. A stay pending appeal, granted by the Second Circuit on May 25, 2004, allowed New York to reinstate its program with about 650 participating prisoners. PLN will report on the appeal result when it's released. See: Donhauser v. Goord, preliminary injunction granted 314 F.Supp.2d 139, vacated and amended 317 F.Supp.2d 160 (N.D.N.Y. 2004).
With many states civilly committing prisoners convicted of sex offenses after they have served their criminal sentences and the prospect of additional prosecutions, it is rarely advisable to confess in any prison therapy" or rehabilitation" program to any uncharged or unprocessed crimes that may have been committed absent a binding immunity agreement. Prison therapists routinely testify against their prisoner patients" in civil commitment and criminal prosecutions about disclosures made during treatment.
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Related legal cases
Donhauser v. Goord
| Year | 2004 |
|---|---|
| Cite | 314 F.Supp.2d 139 |
| Level | District Court |
| Conclusion | Bench Verdict |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | Granted |
314 F.Supp.2d 139
United States District Court, N.D. New York.
David DONHAUSER, Plaintiff,
v.
Glenn S. GOORD, Commissioner of the New York State Department of Correctional Services; Martha E. Yourth, CSW Guidance Specialist; Dominic Martinelli, Sex Offender Program Counselor; and S. Carter, S.C.C., Oneida Correctional Facility, Defendants.
No. 01-CV-1535.
April 15, 2004.
Background: State inmate brought pro se § 1983 action against prison officials, alleging violations of his privilege against self-incrimination and his due process, equal protection, and privacy rights and seeking declaratory, injunctive, and monetary relief. Inmate moved for preliminary injunctive relief.
Holdings: The District Court, Hurd, J., held that:
(1) allegations supported claim for violation of inmate's Fifth Amendment privilege against self-incrimination, and
(2) preliminary injunctive relief was warranted.
Motion granted in part and denied in part.
*140 David Donhauser, Oneida Correctional Facility, Rome, Plaintiff, pro se.
Honorable Eliot Spitzer, Attorney General for the State of New York, Albany (Nelson Sheingold, of counsel), for defendants.
MEMORANDUM-DECISION and ORDER
HURD, District Judge.
I. INTRODUCTION
By Memorandum-Decision and Order dated April 15, 2004 (April 15th MDO), defendants' motion to dismiss the second amended complaint pursuant to Fed.R.Civ.P. 12 was denied as to plaintiff's claim that the Sexual Offender Counseling Program (SOCP) administered at the Oneida Correctional Facility, and its requirement that participants divulge histories of sexual conduct, including acts for which no criminal charges have been brought, violated his Fifth Amendment privilege against self-incrimination, and granted in every other respect. (Docket No. 79.)
On June 19, 2003, plaintiff filed a motion for preliminary and/or injunctive relief pursuant to Fed.R.Civ.P. 65. (Docket Nos. 54, 63.) Defendants opposed. (Docket Nos. 59, 60.) In light of the April 15th MDO, plaintiff's motion for a preliminary injunction must be granted in part.
II. PRELIMINARY INJUNCTION STANDARD
To prevail on a motion for preliminary injunctive relief, plaintiff must demonstrate irreparable harm and either a substantial likelihood of success on the merits, or sufficiently serious questions going to the merits and a balance of hardships tipping decidedly in his favor. Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir.1992).
III. DISCUSSION
The facts of this case were adequately laid out in the April 15th MDO, and need not be repeated here. Prior to its issuance, and the Report-Recommendation that preceded it, plaintiff's first motion for preliminary injunctive relief was denied pursuant to McKune v. Lile, 536 U.S. 24, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002), and on the grounds that plaintiff had failed to submit any evidence to support his allegations.
Defendants argue that the former comprises the law of the case and mandates dismissal of plaintiff's pending motion for preliminary injunctive relief. The Second Circuit has observed that the law of the case doctrine is, at best, a discretionary doctrine which does not constitute a limitation on the court's power but merely expresses the general practice of refusing to reopen what has been decided. Brody v. Vill. of Port Chester, 345 F.3d 103, 110 (2d Cir.2003) (quoting United States v. Martinez, 987 F.2d 920, 923 (2d Cir.1993)). In this case, to the extent the earlier denial of plaintiff's first motion for preliminary injunctive relief can be read to hold that McKune precluded his surviving Fifth Amendment claim, it is here clarified to not do so, as set forth extensively in the April 15th MDO, which is endorsed and reiterated herein.
*141 With regards to the second ground upon which plaintiff's earlier motion for preliminary injunctive relief was denied-that he had submitted no evidence aside from his own affidavit-it is noted that plaintiff attached to his pending motion several exhibits that support his allegations that he was threatened with a loss of, and did in fact lose, good time credits as a direct and automatic result of his refusal to give up his right to silence and participate in the SOCP. (Docket No. 54, Exs. A-F.) As noted in the April 15th MDO, such evidence, if found persuasive, would give rise to a viable claim under the Fifth Amendment.
Defendants' only other substantive argument against the pending motion for preliminary injunctive relief is that, because plaintiff has now actually lost good time credits, instead of merely anticipating the same, his claim cannot be sustained under 42 U.S.C. § 1983 pursuant to Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). This argument confuses and improperly groups together plaintiff's due process and Fifth Amendment claims. Heck and Edwards were in fact cited in a Memorandum-Decision and Order in this case, dated October 14, 2003, denying plaintiff's motion to amend the second amended complaint. (Docket No. 70.) In that decision, however, it was noted that [s]ince [plaintiff] has not alleged that the administrative decision revoking his good time credits has been reversed, any due process claims regarding his loss of good time credits would necessarily be barred by Heck and Edwards. Id. at 3-4 (emphasis added). Thus, the proposed third amended complaint was read to modify plaintiff's due process claim, but not his Fifth Amendment claim, which was directed at the SOCP and its requirements, and which is the only claim that survived the April 15th MDO.
The relief, if appropriate, to restore lost good time credits must await final resolution of the Fifth Amendment claim. Plaintiff is not entitled to a preliminary injunction restoring his lost good time credits.
Therefore, in light of the April 15th MDO, plaintiff is entitled to some preliminary injunctive relief, in the form of an order enjoining defendants from requiring, as part of the SOCP, participants to divulge a history of sexual conduct, including illegal acts for which no criminal charges have been filed.
Accordingly, it is
ORDERED that
1. Plaintiff's motion for a preliminary injunction is GRANTED in part;
2. The defendants and persons acting under their discretion and/or control are enjoined from requiring a prisoner to divulge his or her history of sexual conduct, including illegal acts for which no criminal charges have been filed, in order to be eligible to participate in the Sexual Offender Counseling Program;
3. The motion is DENIED in all other respects.
IT IS SO ORDERED.
N.D.N.Y.,2004.
Donhauser v. Goord
314 F.Supp.2d 139
United States District Court, N.D. New York.
David DONHAUSER, Plaintiff,
v.
Glenn S. GOORD, Commissioner of the New York State Department of Correctional Services; Martha E. Yourth, CSW Guidance Specialist; Dominic Martinelli, Sex Offender Program Counselor; and S. Carter, S.C.C., Oneida Correctional Facility, Defendants.
No. 01-CV-1535.
April 15, 2004.
Background: State inmate brought pro se § 1983 action against prison officials, alleging violations of his privilege against self-incrimination and his due process, equal protection, and privacy rights and seeking declaratory, injunctive, and monetary relief. Inmate moved for preliminary injunctive relief.
Holdings: The District Court, Hurd, J., held that:
(1) allegations supported claim for violation of inmate's Fifth Amendment privilege against self-incrimination, and
(2) preliminary injunctive relief was warranted.
Motion granted in part and denied in part.
*140 David Donhauser, Oneida Correctional Facility, Rome, Plaintiff, pro se.
Honorable Eliot Spitzer, Attorney General for the State of New York, Albany (Nelson Sheingold, of counsel), for defendants.
MEMORANDUM-DECISION and ORDER
HURD, District Judge.
I. INTRODUCTION
By Memorandum-Decision and Order dated April 15, 2004 (April 15th MDO), defendants' motion to dismiss the second amended complaint pursuant to Fed.R.Civ.P. 12 was denied as to plaintiff's claim that the Sexual Offender Counseling Program (SOCP) administered at the Oneida Correctional Facility, and its requirement that participants divulge histories of sexual conduct, including acts for which no criminal charges have been brought, violated his Fifth Amendment privilege against self-incrimination, and granted in every other respect. (Docket No. 79.)
On June 19, 2003, plaintiff filed a motion for preliminary and/or injunctive relief pursuant to Fed.R.Civ.P. 65. (Docket Nos. 54, 63.) Defendants opposed. (Docket Nos. 59, 60.) In light of the April 15th MDO, plaintiff's motion for a preliminary injunction must be granted in part.
II. PRELIMINARY INJUNCTION STANDARD
To prevail on a motion for preliminary injunctive relief, plaintiff must demonstrate irreparable harm and either a substantial likelihood of success on the merits, or sufficiently serious questions going to the merits and a balance of hardships tipping decidedly in his favor. Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir.1992).
III. DISCUSSION
The facts of this case were adequately laid out in the April 15th MDO, and need not be repeated here. Prior to its issuance, and the Report-Recommendation that preceded it, plaintiff's first motion for preliminary injunctive relief was denied pursuant to McKune v. Lile, 536 U.S. 24, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002), and on the grounds that plaintiff had failed to submit any evidence to support his allegations.
Defendants argue that the former comprises the law of the case and mandates dismissal of plaintiff's pending motion for preliminary injunctive relief. The Second Circuit has observed that the law of the case doctrine is, at best, a discretionary doctrine which does not constitute a limitation on the court's power but merely expresses the general practice of refusing to reopen what has been decided. Brody v. Vill. of Port Chester, 345 F.3d 103, 110 (2d Cir.2003) (quoting United States v. Martinez, 987 F.2d 920, 923 (2d Cir.1993)). In this case, to the extent the earlier denial of plaintiff's first motion for preliminary injunctive relief can be read to hold that McKune precluded his surviving Fifth Amendment claim, it is here clarified to not do so, as set forth extensively in the April 15th MDO, which is endorsed and reiterated herein.
*141 With regards to the second ground upon which plaintiff's earlier motion for preliminary injunctive relief was denied-that he had submitted no evidence aside from his own affidavit-it is noted that plaintiff attached to his pending motion several exhibits that support his allegations that he was threatened with a loss of, and did in fact lose, good time credits as a direct and automatic result of his refusal to give up his right to silence and participate in the SOCP. (Docket No. 54, Exs. A-F.) As noted in the April 15th MDO, such evidence, if found persuasive, would give rise to a viable claim under the Fifth Amendment.
Defendants' only other substantive argument against the pending motion for preliminary injunctive relief is that, because plaintiff has now actually lost good time credits, instead of merely anticipating the same, his claim cannot be sustained under 42 U.S.C. § 1983 pursuant to Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). This argument confuses and improperly groups together plaintiff's due process and Fifth Amendment claims. Heck and Edwards were in fact cited in a Memorandum-Decision and Order in this case, dated October 14, 2003, denying plaintiff's motion to amend the second amended complaint. (Docket No. 70.) In that decision, however, it was noted that [s]ince [plaintiff] has not alleged that the administrative decision revoking his good time credits has been reversed, any due process claims regarding his loss of good time credits would necessarily be barred by Heck and Edwards. Id. at 3-4 (emphasis added). Thus, the proposed third amended complaint was read to modify plaintiff's due process claim, but not his Fifth Amendment claim, which was directed at the SOCP and its requirements, and which is the only claim that survived the April 15th MDO.
The relief, if appropriate, to restore lost good time credits must await final resolution of the Fifth Amendment claim. Plaintiff is not entitled to a preliminary injunction restoring his lost good time credits.
Therefore, in light of the April 15th MDO, plaintiff is entitled to some preliminary injunctive relief, in the form of an order enjoining defendants from requiring, as part of the SOCP, participants to divulge a history of sexual conduct, including illegal acts for which no criminal charges have been filed.
Accordingly, it is
ORDERED that
1. Plaintiff's motion for a preliminary injunction is GRANTED in part;
2. The defendants and persons acting under their discretion and/or control are enjoined from requiring a prisoner to divulge his or her history of sexual conduct, including illegal acts for which no criminal charges have been filed, in order to be eligible to participate in the Sexual Offender Counseling Program;
3. The motion is DENIED in all other respects.
IT IS SO ORDERED.
N.D.N.Y.,2004.
Donhauser v. Goord
314 F.Supp.2d 139
Donhauser v. Goord
| Year | 2004 |
|---|---|
| Cite | 317 F.Supp.2d 160 (N.D.N.Y. 2004). |
| Level | District Court |
| Conclusion | Bench Verdict |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | Granted |
317 F.Supp.2d 160
United States District Court, N.D. New York.
David DONHAUSER, Plaintiff,
v.
Glenn S. GOORD, Commissioner of the New York State Department of Correctional Services; Martha E. Yourth, CSW Guidance Specialist; Dominic Martinelli, Sex Offender Program Counselor; and S. Carter, S.C.C., Oneida Correctional Facility, Defendants.
No. 01-CV-1535.
April 23, 2004.
Background: State inmate brought pro se § 1983 action against prison officials, alleging violations of his privilege against self-incrimination and his due process, equal protection, and privacy rights and seeking declaratory, injunctive, and monetary relief. Inmate moved for preliminary injunctive relief.
Holding: Amending its prior order, 314 F.Supp.2d 139, 2004 WL 837760, the District Court, Hurd, J., held that inmate established entitlement to preliminary injunction.
Ordered accordingly.
*160 David Donhauser, Oneida Correctional Facility, Rome, NY, pro se.
Eliot Spitzer, Albany, NY, Nelson Sheingold, Assistant Attorney General, of Counsel, Attorney General for the State of New York.
ORDER
HURD, District Judge.
On April 15, 2004, defendants' motion to dismiss the second amended complaint was granted in part and denied in part. (Docket No. 79.) Because plaintiff is likely to succeed on the merits of his claim that his Fifth Amendment rights were violated with respect to the threatened loss of good time credits as a result of his refusal to participate in defendants' Sexual Offender Counseling Program, plaintiff's motion for a preliminary injunction was granted. (Docket No. 80.) Particularly, defendants *161 and persons acting under their [direction] and/or control [were] enjoined from requiring a prisoner to divulge his or her history of sexual conduct, including illegal acts for which no criminal charges have been filed, in order to be eligible to participate in the Sexual Offender Counseling Program. Id.
On April 21, 2004, defendants filed a notice of appeal of both decisions with the Second Circuit Court of Appeals. (Docket No. 82.) The following day, defendants filed a motion to stay the injunction and all other proceedings in district court pending their appeal. (Docket Nos. 83-84.)
Upon consideration of defendants' submissions, it is
ORDERED that
1. Defendants' motion for a stay is DENIED; and
2. The preliminary injunction is VACATED and AMENDED to read as follows: defendants and persons acting under their direction and/or control are enjoined from depriving a prisoner of good time credits because of the prisoner's refusal to divulge a history of sexual conduct, including illegal acts for which no criminal charges have been filed, in order to be eligible for the Sexual Offender Counseling Program.
IT IS SO ORDERED.
N.D.N.Y.,2004.
Donhauser v. Goord
317 F.Supp.2d 160
United States District Court, N.D. New York.
David DONHAUSER, Plaintiff,
v.
Glenn S. GOORD, Commissioner of the New York State Department of Correctional Services; Martha E. Yourth, CSW Guidance Specialist; Dominic Martinelli, Sex Offender Program Counselor; and S. Carter, S.C.C., Oneida Correctional Facility, Defendants.
No. 01-CV-1535.
April 23, 2004.
Background: State inmate brought pro se § 1983 action against prison officials, alleging violations of his privilege against self-incrimination and his due process, equal protection, and privacy rights and seeking declaratory, injunctive, and monetary relief. Inmate moved for preliminary injunctive relief.
Holding: Amending its prior order, 314 F.Supp.2d 139, 2004 WL 837760, the District Court, Hurd, J., held that inmate established entitlement to preliminary injunction.
Ordered accordingly.
*160 David Donhauser, Oneida Correctional Facility, Rome, NY, pro se.
Eliot Spitzer, Albany, NY, Nelson Sheingold, Assistant Attorney General, of Counsel, Attorney General for the State of New York.
ORDER
HURD, District Judge.
On April 15, 2004, defendants' motion to dismiss the second amended complaint was granted in part and denied in part. (Docket No. 79.) Because plaintiff is likely to succeed on the merits of his claim that his Fifth Amendment rights were violated with respect to the threatened loss of good time credits as a result of his refusal to participate in defendants' Sexual Offender Counseling Program, plaintiff's motion for a preliminary injunction was granted. (Docket No. 80.) Particularly, defendants *161 and persons acting under their [direction] and/or control [were] enjoined from requiring a prisoner to divulge his or her history of sexual conduct, including illegal acts for which no criminal charges have been filed, in order to be eligible to participate in the Sexual Offender Counseling Program. Id.
On April 21, 2004, defendants filed a notice of appeal of both decisions with the Second Circuit Court of Appeals. (Docket No. 82.) The following day, defendants filed a motion to stay the injunction and all other proceedings in district court pending their appeal. (Docket Nos. 83-84.)
Upon consideration of defendants' submissions, it is
ORDERED that
1. Defendants' motion for a stay is DENIED; and
2. The preliminary injunction is VACATED and AMENDED to read as follows: defendants and persons acting under their direction and/or control are enjoined from depriving a prisoner of good time credits because of the prisoner's refusal to divulge a history of sexual conduct, including illegal acts for which no criminal charges have been filed, in order to be eligible for the Sexual Offender Counseling Program.
IT IS SO ORDERED.
N.D.N.Y.,2004.
Donhauser v. Goord
317 F.Supp.2d 160