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Alves v. Ferguson

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY


November 17, 2003

RAYMOND ALVES AND ROBERT MCGARREY, PLAINTIFFS,
v.
DR. GLEN FERGUSON, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Dennis M. Cavanaugh, U.S.D.J.

OPINION

This matter comes before the Court on State Defendants' ("Defendants") motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Oral argument was heard on November 10, 2003. For the following reasons, Defendants' motion to dismiss is granted in part and denied in part.

BACKGROUND

Since March 24, 2000, and April 20, 2000, respectively, the State of New Jersey has civilly confined Plaintiffs Raymond Alves and Robert McGarrey in the Department of Corrections ("DOC") Special Treatment Unit pursuant to the New Jersey Sexually Violent Predators Act ("SVPA"), N.J.S.A. § 30:4-27.24.

Plaintiffs filed Amended Complaints on October 25, 2002, setting forth a number of federal and state causes of action challenging the inadequacy of Plaintiffs' mental health treatment and other conditions of Plaintiffs' confinement at the Special Treatment Unit. The Alves Complaint was docketed under civil action number 01-CV-4642(DMC) and the McGarrey Complaint was docketed under civil action number 01-CV-4641(DMC). A letter order dated October 1, 2002, was filed with the Court seeking to consolidate the pending matters filed by each plaintiff because they presented common issues. These matters were consolidated under civil action number 01-CV-789(DMC) by order dated October 8, 2002.

This matter arises in the context of the SVPA which provides for the involuntary civil commitment of people deemed to be sexually violent predators. The standard for commitment requires the court to find, by clear and convincing evidence that the "the person needs continued involuntary commitment as a sexually violent predator." N.J.S.A. 30:4-27.32(a). In order to establish that a person is in need of civil commitment, the State must present evidence of past sexually violent behavior and evidence of a present medical condition that creates a likelihood of future sexually violent behavior. N.J.S.A. 30:4-27.26.

N.J.S.A. 30:4-27.34(a) provides that "[t]he Department of Corrections shall be responsible for the operation of any facility designated for the custody, care and treatment of sexually violent predators" and "shall provide or arrange for custodial care" of persons identified as sexually violent predators.

ANALYSIS

Standard of Review

When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), all allegations in the Complaint must be taken as true and viewed in the light most favorable to the plaintiff. See Worth v. Selden, 422 U.S. 490, 501 (1975); Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts, Inc., 140 F.3d 478, 483 (3d Cir. 1988); Robb v. Philadelphia, 733 F.2d 286, 290 (3d Cir. 1984). In evaluating a Rule 12(b)(6) motion to dismiss, a court may consider only the Complaint, exhibits attached to the Complaint, matters of public record, and undisputedly authentic documents if the plaintiff's claims are based upon those documents. Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993).

When deciding a motion to dismiss for failure to state a claim, courts in the Third Circuit may review facts alleged in the Complaint, documents explicitly relied upon or incorporated by reference in the Complaint, and may examine other documents integral to the Complaint. In re Burlington Coat Factory Sec. Lithog., 114 F.3d 1410, 1426 (3d Cir. 1997). "We must determine whether, under any reasonable reading of the pleadings, the plaintiffs may be entitled to relief, and we must accept as true the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom." Name v. Faber, 82 F.3d 63, 65 (3d Cir. 1996). While Federal Rule of Civil Procedure 8(a)(2) requires only a "short and plain statement of the claim showing that the pleader is entitled to relief," Rule 12(b)(6) is not without meaning. "Although the pleading requirements ... are very liberal, more detail is often required than the bald statement by plaintiff that he has a valid claim of some type against defendant." 5A Charles A. Wright and Arthur R. Miller, FEDERAL PRACTICE and PROCEDURE § 1357 at 318 (2d ed. 1990). If, after viewing the allegations in the complaint in the light most favorable to the plaintiff, it appears beyond doubt that no relief could be granted "under any set of facts which could prove consistent with allegations," a court shall dismiss a complaint for failure to state a claim. Hechuan v. King & Spalding, 467 U.S. 69, 73 (1984); Lynn v. O'Donnell, 688 F.2d 940, 941 (3d Cir. 1982).

Substantive Due Process Claims Regarding Mental Health Treatment

Count Three of Plaintiffs' Amended Complaint alleges that Defendants have failed to provide mental health treatment sufficient to meet their obligations under the substantive due process guarantees of the Fourteenth Amendment.

The Substantive Due Process component of the Fourteenth Amendment requires that when state officials impose substantial deprivations of liberty associated with civil commitment, they must also provide access to mental health treatment that gives those committed a realistic opportunity to be cured or to improve the medical condition for which they were confined. Youngberg v. Romeo, 457 U.S. 307, 319-322 (1982).

Defendants assert that Plaintiffs' complaint should be dismissed because the provisions of the SVPA are in accordance with the requirements of substantive due process. Defendants note that "[t]he authority of the State to civilly commit citizens is said to be an exercise of its police power to protect the citizenry and its parens patriae authority to act on behalf of those unable to act in their own best interests." In the Matter of D.C., 146 N.J. 31, 47 (1986). "There can be little doubt that in the exercise of its police power a State may confine individuals solely to protect society from the dangers of significant antisocial acts or communicable disease." O'Connor v. Donaldson, 422 U.S. 563, 582-83 (1975) (Burger, C.J., concurring).

Defendants further note that the Supreme Court of the United States has long upheld statutes providing for the involuntary civil commitment of individuals who pose a danger to the public health and safety. Kansas v. Hendricks, 521 U.S. 346 at 357 (1997). Sexually violent predators pose a threat, and the State has responded to that threat by enacting the SVPA. N.J.S.A. 30:4-27.25.

In order to establish a violation of substantive due process, a plaintiff must allege executive action that is "so ill-conceived or malicious that it `shocks the conscience'" Nicini v. Morra, 212 F.3d 798, 809 (3d Cir. 2000) citing Miller v. City of Philadelphia, 174 F.3d 368, 375 (3d Cir. 1999) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). Defendants submit that Plaintiffs have not alleged any action on the part of Defendants that rises to the level of shocking the conscience. Defendants further point out that when reviewing treatment decisions, such as here, courts are required to give deference to the exercise of professional medical judgment. Youngberg v. Romeo, 457 U.S. 307 (1982). Professional decisions regarding treatment programs at the Special Treatment Unit, and the individualized treatment programs developed for each civilly committed resident are based on the judgment of qualified professionals. Id. at 322. These decisions are presumptively valid. Id. at 323. Ultimately, Defendants assert that Plaintiffs' complaints alleging lack of individualized programming, monitoring, feedback, and treatment goals are insufficient to support a claim for violation of their right to substantive due process.

Plaintiffs contend that Defendants' Motion to Dismiss the substantive due process claims related to inadequate mental health treatment relies on factual matters outside the pleadings. Plaintiffs assert that Defendants rely on expert judgments and factual conclusions pertaining to the effectiveness and propriety of Defendants' treatment regimen, rather than attacking the validity of the pleadings themselves.

Although the Defendants are correct to note that in evaluating the validity of Plaintiffs' substantive due process claims, a court is obliged to give substantial deference to the state's professional judgments about its choice of an appropriate treatment regimen, this standard only applies when evaluating the sufficiency of evidence at trial. When evaluating the sufficiency of the allegations, Plaintiffs must be afforded an opportunity to develop their allegations through discovery before a court may balance these allegations against the state's professional judgments.

Under a reasonable reading of the Plaintiffs' pleadings, accepting as true all of the factual allegations in the Amended Complaint as well as all reasonable inferences that can be drawn therefrom, it is the opinion of this Court that the Plaintiffs Alves may be entitled to relief. Therefore, Defendant's motion to dismiss Count Three of Plaintiff' Amended Complaint, alleging a violation of substantive due process is denied.

Double Jeopardy

Count One of Plaintiffs' Amended Complaint alleges violation of the Double Jeopardy Clause of the Constitution. The Double Jeopardy Clause prohibits a state from "punishing twice, or attempting a second time to punish, criminally, for the same offense." Witte v. United States, 515 U.S. 389, 396 (1995).

To be violative of the Double Jeopardy Clause, a statute must first be found to impose punishment. Id. at 361. The Constitution prohibits double jeopardy and ex post facto lawmaking in criminal legislation, but not to civil proceedings. Id. It has been determined that the SVPA is a civil statute providing for the treatment of sexually violent predators and that it does not impose punishment. In re the Commitment of P.C., 349 N.J. Super. 569, 582 (App. Div. 2002).

Defendants assert that because the SVPA does not impose punishment it cannot violate the Double Jeopardy provision of the Constitution. The expressed intent of the SVPA demonstrates that it was enacted to provide for the protection of society and to provide the opportunity for treatment for persons deemed to be sexually violent predators. See, e.g., In re the Commitment of W.Z., 173 N.J. 109, 120 (2002). These goals have long been considered legitimate, non-punitive governmental objectives. Moreover, the Supreme Court of the United States has held that civil commitment statutes like the SVPA do not impose punishment and are not violative of the Double Jeopardy Clause. Kansas v. Hendricks, 521 U.S. 346 (1997).

In Hendricks, the Supreme Court rejected a double jeopardy challenge to the Kansas SVPA, concluding that:

Where the State has "disavowed any punitive intent"; limited confinement to a small segment of particularly dangerous individuals; provided strict procedural safeguards; directed that confined persons be segregated from the general prison population and afforded the same recommended treatment if such is possible; and permitted immediate release upon a showing that the individual is no longer dangerous or mentally impaired, we cannot say it acted with punitive intent.

Hendricks, 521 U.S. at 368-369. Moreover, by providing treatment, Defendants argue that the State has satisfied any test for determining that the SVPA is not punitive. A "State serves its purpose of treating rather than punishing sexually dangerous persons by committing them to an institution expressly designed" to provide appropriate care and treatment. Hendricks, 521 U.S. at 368 n.4.

Defendants further assert that the SVPA has no punitive intent and that the clearly expressed intent of the SVPA demonstrates that the statute was enacted to broaden the reach of New Jersey's civil commitment law to protect society from sexually violent predators. In re the Commitment of E.D., 353 N.J. Super. 450 (App. Div. 2002). Furthermore, the SVPA contains clear language of a legislative declaration to modify the civil commitment process in recognition of the compelling need to commit sexually violent predators. N.J.S.A. 30:4-27.25.

Defendants also note that although the DOC is responsible for the operation of the Special Treatment Unit, operation by the DOC does not provide proof of punitive intent sufficient to override the Legislature's stated intent to create a civil scheme. In In re the Commitment of W.Z., the Supreme Court of New Jersey noted that the DOC is charged with the responsibility of providing a facility to house civilly committed sexually violent predators.. W.Z.,172 N.J. 109 (2002).

Plaintiffs concede that the facial design of the SVPA is not punitive, but independently allege that its administration by Defendants is so faulty as to render it "punitive in effect." Plaintiffs argue that because the "in effect" cause of action is left open by Kansas v. Hendricks, Defendants' motion to dismiss Plaintiffs' double jeopardy claim should be denied.

Plaintiffs, after reviewing the factual elements of Kansas v. Hendricks, conclude that the similarities between the Kansas and New Jersey laws would, at most, demonstrate that the New Jersey legislature manifested no punitive intent in enacting the SVPA. Plaintiffs argue that the uncertainty surrounding the legal standard of whether a statute is "punitive in effect" counsels strongly against dismissing Plaintiffs' complaints on the pleadings. Elec. Constr. & Maintenance Co., Inc. v. Maeda Pac. Corp., 764 F.2d 619, 623 (9th Cir. 1985) ("The Court should be especially reluctant to dismiss on the basis of the pleadings when the asserted theory of liability is novel or extreme, since it is important that new legal theories be explored and assayed in the light of actual facts rather than a pleader's assumptions.") (quoting 5 C. Wright Miller, Federal Practice and Procedure: Civil § 1357, at 341-343 (1990)).

Plaintiffs allege several facts in support of their claim that the SVPA is "punitive in effect." First, Plaintiffs allege that the quality and quantity of treatment is so inadequate as to undermine any proper therapeutic functioning of the facility. Second, Plaintiffs allege that the Special Treatment Unit is staffed entirely by DOC officers. Furthermore, Plaintiffs broadly allege that the Special Treatment Unit is being operated as if it were a prison and state several examples in support of this contention.

Plaintiffs go to great lengths to distinguish Kansas v. Hendricks and Seling v. Young from the circumstances of this controversy. Kansas v. Hendricks, 521 U.S. 346 (1997) presented a facial challenge to the Kansas Sexually Violent Predators Act, which the Supreme Court determined to be constitutional on its face. Here, Plaintiffs do not attack the constitutionality of the New Jersey SVPA, rather they assert that the implementation of the SVPA by state actors is a violation of the rights of the Plaintiffs. Plaintiffs also attempt to distinguish Seling v. Young, 531 U.S. 250 (2001) by noting that Seling considered a facial challenge to the constitutionality of the Washington State Act, which is not the case here and that Seling specifically carves out an opening to seek injunctive relief from constitutional civil commitment statutes. Id. Again, Plaintiffs do not challenge the constitutionality of the SVPA, rather they challenge the enforcement of a constitutional statute and seek injunctive relief. Furthermore, Seling involved release of the plaintiffs from civil commitment. Id. Here, Plaintiffs do not seek release from civil commitment, but rather an injunction and order from the Court ordering that the state revamp its civil commitment system so that it is not in violation of the constitutional rights of civilly committed persons.

It is the opinion of this Court that the facts of Kansas v. Hendricks and Seling v. Young are very much on all fours with the facts of the present case. In Kansas v. Hendricks, the Supreme Court of the United States determined that a similar civil commitment statute to be civil on its face. Subsequently, in Seling v. Young, the Supreme Court ruled that an "as applied" or "in effect" argument cannot alter the conclusive legislative and judicial determination that a civil commitment statute similar to the SVPA sets forth a civil, not criminal, commitment scheme, and precluded an "as applied" or "in effect" double jeopardy or ex post facto challenge *fn1 . Id. 531 U.S. at 263. Furthermore, Plaintiffs' assertion that this Court should look beyond the face of the SVPA to the implementation of the Act is inconsistent with the Supreme Court's holding in Hudson v. United States, 522 U.S. 93 (1997), wherein the Court held that the determination of whether a statute is criminal or civil must be done through an examination of the statute "on its face." Id. at 101. On its face, the SVPA is civil.

Based upon the foregoing, Defendant's motion to dismiss Count One of Plaintiffs' Amended Complaint, alleging a violation of the Double Jeopardy Clause of the Constitution is granted. Equal Protection

In Count Six of each of the Amended Complaints, Plaintiffs allege that Defendants have failed to provide them with mental health treatment and conditions of confinement similar to those provided to other mentally ill persons who are civilly committed pursuant to New Jersey Law in violation of the Equal Protection Clause.

Defendants move for dismissal of Plaintiffs' equal protection claim. The crux of Plaintiffs' complaint is that sexually violent predators are treated differently from other mental health patients constituting a violation of their rights to equal protection. However, the dangerousness of a detainee "may be a reasonable distinction for purposes of determining the type of custodial or medical care to be given" to a civil committee. Baxtrom v. Herold, 383 U.S. 107, 111 (1966). Indeed, the Supreme Court of the United States has recognized that sex offenders pose a "serious threat in this Nation" and that "[w]hen convicted sex offenders re-enter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault." McKune v. Lile, 536 U.S. 24 (2002). Defendants assert that the specific and serious dangers posed by sexually violent predators justifies the legislative determination that different treatment and separate housing is warranted for these individuals.

Plaintiffs assert that Defendants' Motion to Dismiss on Plaintiffs' equal protection claim relies on facts outside of the pleadings. Plaintiffs contend that Defendants are attempting to prove the validity of their conduct rather than challenge the validity of Plaintiffs' allegations. Plaintiffs further argue that Defendants only compare sexually violent predators to persons with other mental illnesses. Plaintiffs argue that the relevant question in evaluating this equal protection claim is whether sexually violent predators are sufficiently different from other populations of civilly committed persons to justify their different treatment. Finally, Plaintiffs allege that the discriminatory treatment of civilly committed sexually violent predators is motivated by animus. Plaintiffs assert that these are all fact-sensitive inquiries, dependent in large part upon expert testimony which cannot be pursued without an opportunity for discovery. See South Camden Citizens in Action v. N.J. Dep't Envt'l Prot., 254 F.Supp.2d 486, 487-499 (3d Cir. 2003) (discussing the Third Circuit's "reluctance" to dismiss equal protection claims before developing a full record).

Although sexually violent predators may indeed be treated differently from other civilly committed persons, dangerousness "may be a reasonable distinction for purposes of determining the type of custodial or medical care to be given" a civil committee. Baxtom, 383 U.S. at 111. The question for purposes of an equal protection analysis is "whether the legislature could constitutionally make a class of the group it did select" for civil commitment. Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 274 (1940). Sexually violent predators certainly "present different societal problems than disordered persons who may fall within other statutory schemes providing for civil commitment." Munoz v. Kolender, 208 F.Supp.2d 1125 at 1135 (S.D.Cal. 2002).

The New Jersey legislative scheme for the SVPA explicitly provides that "[t]he nature of the mental condition from which a sexually violent predator may suffer may not always lend itself to characterization under the existing statutory standard, although civil commitment may nonetheless be warranted due to the danger the person may pose as a result of the [diagnosed] mental condition." N.J.S.A. 30:4-27.25(b). Thus, the legislature found, "it is necessary to modify the involuntary civil commitment process in recognition of the need for commitment of those sexually violent predators who pose a danger to others should they be returned to society." N.J.S.A. 30:4-27.25(c).

The New Jersey Legislature specifically distinguishes sexually violent predators and these individuals are, therefore, not similarly situated to other civil committees. "Consequently, Equal Protection issues that may arise under one of those statutes do not necessarily arise under others. [Sexually Violent Predators] do not necessarily have a right to the same treatment afforded other classes of persons who face confinement in mental health facilities." Munoz, 208 F.Supp. 2d at 1136.

Although Plaintiffs allege that sexually violent predators are treated differently from patients who are committed under the general civil commitment statute, the New Jersey Appellate Courts have found that civilly committed sexually violent predators present different issues, security concerns and threats than do other civilly committed individuals. The law is clear that not all mental health patients need to be treated exactly the same. Certainly, different mental conditions require different treatment programs - this is the case with the treatment of sexually violent predators.

Classification according to mental illness is not recognized as a suspect class, see e.g., Doe v. Colautti, 592 F.2d 704, 710-11 (3d Cir. 1979), hence, the challenged legislation need only be shown to bear a rational relationship to a legitimate congressional goal. Weinberger v. Salfi, 422 U.S. 749, 768-70 (1975). Here, the congressional goal is undoubtedly legitimate, and the SVPA has a more than rational relationship to this goal. Therefore, Defendant's motion to dismiss Count Six of Plaintiffs' Amended Complaint, alleging a violation of the Equal Protection Clause of the Constitution is granted.

Substantive Due Process Claims Regarding Physical Abuse

Count Five of Plaintiffs' Amended Complaint alleges that Defendants have violated Plaintiffs' due process right by allowing Plaintiffs to suffer physical abuse at the hands of the DOC staff.

Defendants argue that they are entitled to dismissal of Plaintiffs' claims of physical assault. In order for §1983 liability to attach, a defendant must be personally involved in the claimed deprivation of a constitutional right. West v. Macht, 235 F.Supp. 2d 966, 973 (E.D. Wisc. 2002). A defendant must have participated in the alleged violation in order to have the requisite degree of involvement. Ibid. Here, Defendants assert that Count Five of each Amended Complaint regarding physical abuse must be dismissed because neither Defendants Lieutenant McCormick (Alves Complaint) nor Officer Torres (McGarrey Complaint) were present at the Special Treatment Unit during the time of the alleged altercations.

"Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).

Plaintiffs acknowledge that they have not properly alleged vicarious liability against the supervisor-Defendants sufficient to state a claim against those Defendants for violations of due process. Plaintiffs concede that these claims should be dismissed, but request that this Court dismiss these claims without prejudice.

Plaintiffs do, however, wish to maintain their claims against the individual officers, McCormick and Torres. While Defendants contend that these officers were not present at the Special Treatment Unit on the dates alleged by the Plaintiffs, these are assertions of fact that are outside the pleadings and improper for consideration in evaluating a motion to dismiss.

Plaintiffs have conceded that their vicarious liability claims against the supervisor-Defendants should be dismissed. However, Plaintiffs wish to maintain their claims against individual officers McCormick and Torres. While Defendants do allege that these two officers were not present at the time of the alleged physical abuse, this is an allegation of fact that is inappropriate at this stage in the proceedings. Therefore, Plaintiffs' vicarious liability claims are dismissed without prejudice, and Defendants' motion to dismiss Plaintiffs' claims against individual officers is denied. Deliberate Indifference

Count Six of Alves' Amended Complaint alleges that Defendants have demonstrated "deliberate indifference" in failing to provide treatment for his hepatitis C and tuberculosis.

Defendants assert that they are entitled to dismissal of Plaintiffs' claims for denial of medical treatment. When a plaintiff asserts that he has been denied medical treatment, subjecting him to cruel and unusual punishment, he must demonstrate that the State has been deliberately indifferent to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976). Therefore, in order to prevail on a claim for deliberate indifference, the plaintiff must establish that the State defendants knew of and disregarded "an excessive risk to inmate health or safety; the official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825 (1994).

Here, Alves has alleged that Defendants "have demonstrated deliberate indifference in failing to provide treatment for Plaintiff's medical illnesses, which include hepatitis C and tuberculosis." (Amended Complaint at ¶43.) Defendants assert that this allegation is without merit because the DOC provides adequate medical treatment to all Special Treatment Unit residents. Defendants assert that, consistent with Estelle and Farmer, the State Defendants cannot be held liable for deliberate indifference here because Plaintiff has not alleged that the State Defendants knew that Alves faced a risk of serious harm and disregarded that risk by failing to take reasonable measures to abate that risk.

Plaintiff asserts that his allegations support a cause of action under the Eighth Amendment's prohibition of cruel and unusual punishment. See Estelle, 429 U.S. 97 (cause of action for inadequate medical care requires allegation of deliberate indifference to serious medical needs). Plaintiff further argues that in support of the Motion to Dismiss, Defendants simply assert conclusory denials of Plaintiffs' allegations, rather than challenge the validity of the pleadings.

Under a reasonable reading of the Plaintiffs' pleadings, accepting as true all of the factual allegations in the complaint as well as all reasonable inferences that can be drawn therefrom, it is the opinion of this Court that the plaintiff Alves may be entitled to relief. Defendants' offers of factual rebuttals outside the scope of the pleadings and conclusory denials cannot defeat an otherwise valid claim for relief on a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Therefore, Defendants' motion to dismiss Count Six of Plaintiff Alves' Amended Complaint, alleging deliberate indifference by denying medical treatment is denied.

Americans with Disabilities Act and Rehabilitation Act Claims

Counts Seven, Eight and Nine of the Amended Complaint allege that Defendants have discriminated against Plaintiffs in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132 (the "ADA") and the Rehabilitation Act of 1973, 29 U.S.C. § 504, both of which cover essentially the same conduct.

Defendants argue that Plaintiffs fail to state a claim for a violation of the ADA or the Rehabilitation Act. To state a claim under the ADA or §504 of the Rehabilitation Act *fn2 , a plaintiff must demonstrate that he or she was deprived of a program or service for which he or she would be otherwise eligible, solely because of his or her disability. 29 U.S.C. §794(a). Defendants assert that Plaintiffs do not argue that they are denied programming, rather that they would prefer different programming. Defendants point out that neither the ADA nor the Rehabilitation Act guarantee a particular level of medical care or treatment. Rodriguez v. City of New York, 197 F.3d 611, 619 (2d Cir. 1999). These Acts seek only to assure evenhanded treatment. Id. at 618. Here, Plaintiffs have the opportunity to receive sex offender treatment in an effort to address their issues as required by the SVPA.

Plaintiffs contend that they are being deprived of adequate treatment, services and liberties which are afforded to other civilly committed persons with disabilities. It is the assertion of Plaintiffs that the reason for this is that the State is unconcerned with addressing the particular disability of the Plaintiffs.

Moreover, simply because the Plaintiffs are entitled to treatment under the terms of the SVPA, does not resolve the question of whether such treatment is discriminatory compared with the quality and quantity of treatment afforded to other civilly committed persons. Moreover, Plaintiffs note that reliance on the requirements of the SVPA do not address the allegedly discriminatory denial of Plaintiffs' access to educational, vocational and physical fitness programs.

Under a reasonable reading of the Plaintiffs' pleadings, accepting as true all of the factual allegations in the complaint as well as all reasonable inferences that can be drawn therefrom as this Court must do, it is the opinion of this Court that the Plaintiffs may be entitled to relief. Defendants offer factual rebuttal contending Plaintiffs receive evenhanded treatment satisfying the requirements of the ADA and Rehabilitation Act. These assertions, however, fall outside the scope of the pleadings and such assertions cannot defeat an otherwise valid claim for relief on a motion to dismiss. Therefore, Defendants' motion to dismiss Counts Seven, Eight and Nine of Plaintiffs' Amended Complaint, alleging violation of the Americans With Disabilities Act and the Rehabilitation Act is denied.

CONCLUSION

For the foregoing reasons, Defendants' motion to dismiss is denied with respect to Count Three of Plaintiffs' Amended Complaint alleging failure to provide adequate mental health treatment in violation of substantive due process; granted with respect to Count One of Plaintiffs' Amended Complaint alleging a violation of the Double Jeopardy Clause; granted with respect to Count Six of Plaintiffs' Amended Complaint alleging violation of Equal Protection; denied with respect to Count Six of Plaintiff Alves' Amended Complaint alleging deliberate indifference; and denied with respect to Counts Seven, Eight, and Nine of Plaintiffs' Amended Complaint alleging violation of the Americans with Disabilities Act and Rehabilitation Act. Furthermore, Plaintiff's claims against supervisor-Defendants are dismissed without prejudice, and Defendants' motion to dismiss Count Five of Plaintiffs' Amended Complaint alleging a denial of substantive due process rights is denied.

ORDER

This matter coming before the Court on the State Defendants' motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and oral argument having been heard on November 10, 2003, and this Court having carefully reviewed all submissions, and for the reasons expressed in this Court's Opinion filed this day;

IT IS on this 17th day of November, 2003,

ORDERED that Defendants' motion to dismiss is denied with respect to Count Three of Plaintiffs' Amended Complaint alleging failure to provide adequate mental health treatment in violation of substantive due process; granted with respect to Count One of Plaintiffs' Amended Complaint alleging a violation of the Double Jeopardy Clause; granted with respect to Count Six of Plaintiffs' Amended Complaint alleging violation of Equal Protection; denied with respect to Count Six of Plaintiff Alves' Amended Complaint alleging deliberate indifference; and denied with respect to Counts Seven, Eight, and Nine of Plaintiffs' Amended Complaint alleging violation of the Americans with Disabilities Act and Rehabilitation Act; and it is further

ORDERED that Plaintiffs' claims against supervisor-Defendants are dismissed without prejudice, and Defendants' motion to dismiss Count Five of Plaintiffs' Amended Complaint alleging a denial of substantive due process rights is denied..


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