Free Reply to Response to Motion - District Court of Connecticut - Connecticut

Case 3:03-cv-00671-DJS

Document 48

Filed 01/21/2004

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT : : : v. : : ROBERT BERGER, JOHN RYAN, : JANET WILLIAMS, SYLVIA CANCELA, : SUSAN BLAIR : Defendants : ROY SASTROM & ROBERT KALMAN Plaintiffs PRISONER CIVIL ACTION NO. 3:03 CV 671 (DJS)(TPS)

January 20, 2004

DEFENDANTS' SUR-REPLY BRIEF IN SUPPORT OF THEIR MOTION TO DISMISS The defendants hereby respectfully submit this sur-reply brief to inform the Court that an application to transfer the plaintiff to a less restrictive setting has recently been filed with the Psychiatric Security Review Board ("PSRB") by the Whiting Forensic Division of Connecticut Valley Hospital and will be considered on January 23, 2004. Currently, the PSRB is also scheduled to hold a hearing on the plaintiff's application for conditional release on January 23, 2004. On January 16, 2004, the Whiting Forensic Division of Connecticut Valley Hospital filed with the PSRB an application to transfer the plaintiff to Dutcher Services, a less restrictive setting at Whiting Forensic Division of Connecticut Valley Hospital. (Exhibits A and B.) This matter has been added to the plaintiff's January 23, 2004 hearing regarding conditional release. As noted by the defendants' in their January 9, 2004 response filed with the Court, the plaintiff has an adequate means of addressing his federal ADA and 14th amendment claims before the PSRB at his January 23, 2004 hearing. Decisions subsequent to Younger have made clear that the same concerns of federalism and comity

Case 3:03-cv-00671-DJS

Document 48

Filed 01/21/2004

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warrant abstention where state administrative proceedings, like the one at issue here, are ongoing. Doe v. State of Connecticut, Department of Health Services, et al., 75 F.3d 81, 85 (2d Cir. 1996). The defendants raised this as an additional ground for the Court to grant its motion to dismiss. In conclusion, the defendants' respectfully request that the Court abstain from hearing the plaintiff's claims for relief because an important state interest is at stake involving two ongoing state proceedings in which the plaintiff has an adequate opportunity to raise his alleged constitutional and federal statutory violations. If the

Court assumes jurisdiction over the plaintiff's claims, the two pending state proceedings would be rendered moot and the proper role of the PSRB and Connecticut Judiciary would be usurped. Based on the foregoing reasons, the defendants' respectfully request that the court grant its motion to dismiss.

DEFENDANTS ROBERT BERGER, JOHN RYAN, JANET WILLIAMS, SYLVIA CANCELA, and SUSAN BLAIR RICHARD BLUMENTHAL ATTORNEY GENERAL BY: _____________________________ Kerry A. Colson, AAG Richard J. Lynch, AAG Federal Bar No. 25241 55 Elm Street, P.O. Box 120 Hartford, CT 06141-0120 Tel: (860) 808-5210 Fax: (860) 808-5385 [email protected]

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Case 3:03-cv-00671-DJS

Document 48

Filed 01/21/2004

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CERTIFICATION I hereby certify that a copy of the foregoing Defendants' Sur-Reply In Support of Defendants' Motion to Dismiss was mailed in accordance with Rule 5(b) of the Federal Rules of Civil Procedure on this 9th day of January, 2004 first class postage prepaid to:

Robert Kalman, Pro Se Whiting Forensic Division 70 O'Brien Dr. Middletown, CT 06457

______________________________ Kerry A. Colson Assistant Attorney General

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