McChesney v. Hogan

Full title: DAVID McCHESNEY, Plaintiff, v. MICHAEL F. HOGAN, Commissioner, New York…

Court: UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

Date published: Jul 30, 2012

Civil Action No. 9:08-CV-1186 (NAM/DEP) (N.D.N.Y. Jul. 30, 2012)

Opinion

Civil Action No. 9:08-CV-1186 (NAM/DEP)

07-30-2012

DAVID McCHESNEY, Plaintiff, v. MICHAEL F. HOGAN, Commissioner, New York State Office of Mental Health, et al., Defendants.

FOR PLAINTIFF : DAVID McCHESNEY, Pro Se OF COUNSEL: FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN Office of Attorney General ADELE TAYLOR-SCOTT ESQ. Assistant Attorney General

David E. Peebles

APPEARANCES:

FOR PLAINTIFF: DAVID McCHESNEY, Pro Se

OF COUNSEL:

FOR DEFENDANTS:

HON. ERIC T. SCHNEIDERMAN
Office of Attorney General
ADELE TAYLOR-SCOTT ESQ.
Assistant Attorney General
DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE

REPORT, RECOMMENDATION AND ORDER

Plaintiff David McChesney, a convicted sex offender who has been civilly committed to the Central New York Psychiatric Center ("CNYPC") for participation in sex offender treatment, has commenced this action pursuant to 42 U.S.C. § 1983 claiming deprivation of his civil rights. In his complaint, plaintiff alleges that his forced participation in the Sex Offender Treatment Program ("SOTP") administered at the CNYPC violates his constitutional rights.¹ The sole remaining claim in this action, following earlier motion practice, is McChesney's assertion that the SOTP is predicated in part upon religious tenets, and he is being forced, contrary to his beliefs as an atheist, to practice religion in violation of his First Amendment rights. The matter is now before the court on defendants' second motion for summary judgment seeking dismissal of the remaining causes of action alleged under the Establishment and Free Exercise Clauses against defendants in their official capacities for prospective injunctive relief.

1 Plaintiff has commenced seven separate actions in this court related to his involuntary civil confinement. In McChesney v. Hogan,et al., No. 9:08-CV-0163 (filed Feb. 11, 2008), plaintiff complained of various policies at the CNYPC ranging from those addressing receipt of food packages and telephone access to mail censorship and the use of short chain restraints, and maintained that the adoption and implementation of those policies by the various defendants named in his complaint resulted in violation of his rights under the First, Fourth, Eighth, and Fourteenth Amendments. That action resulted in the entry of summary judgment dismissing plaintiff's claims. See id. at Dkt. Nos. 49 and 50. In McChesney v. Miller, et al., No. 9:08-CV-0195 (filed Feb. 21, 2008), plaintiff asserted a medical indifference claim under the Eighth Amendment. McChesney voluntarily dismissed that action, and judgment was entered in favor of the defendants. See id. at Dkt. Nos. 5 and 6. In McChesney v. Hogan, et al., No. 9:08-CV-0563 (filed June 10, 2008), plaintiff alleged three instances on which he was assaulted by fellow patients on two separate days, and argued that the attacks resulted from defendants' failure to properly protect him from harm in violation of his constitutional rights. The complaint in that action was dismissed upon defendants' motion for summary judgment, and judgment was entered in favor of defendants. See id. at Dkt. Nos. 36 and 37. In McChesney v. Hogan, et al., No. 9:08-CV-1290 (filed Nov. 28, 2008), plaintiff made claims similar to those made in this lawsuit alleging, inter alia, that the SOTP administered at the CNYPC is predicated in part upon religious tenets, and he is being forced, contrary to his beliefs as an atheist, to practice religion in violation of his First Amendment rights. That action was dismissed and judgment entered in favor of the defendants. See McChesney v. Hogan, et al., No. 9:08-CV-1290, at Dkt. No. 9. In McChesney v. Bastien, No. 9:10-CV-0047 (filed Jan. 13, 2010), plaintiff alleged a single cause of action for deprivation of liberty without due process of law based upon his alleged involuntary detention at another psychiatric facility operated by the New York State Office of Mental Health ("OMH") for a period of sixty days, from October 5, 2007 until December 4, 2007. After the defendant moved to dismiss, the action was dismissed without prejudice at plaintiff's request. See id. at Dkt. No. 11. In McChesney v. Bastien, No. 9:10-CV-1409 (filed Nov. 22, 2010), plaintiff made the same claims as in the earlier filed lawsuit against Bastien; on July 5, 2012, finding the existence of material issues of fact as to whether plaintiff was deprived of his liberty without due process of law, I issued a report recommending that defendant's motion for summary judgment in that action be denied. See id. at Dkt. No. 14.

Having now provided the court with the SOTP treatment materials and modalities at issue, defendants argue, once again, that the use of these programs in the SOTP does not violate plaintiff's First Amendment rights and that they are, therefore, entitled to summary judgment. Additionally, proposed intervenor Jeremy Zielinski, has sought leave to intervene for the sole purpose of moving to vacate the court's order allowing defendants to file the SOTP program materials under seal. For the reasons set forth below, I will deny the proposed intervenor's motion and recommend that defendants' motion be granted. I. BACKGROUND²

2 In light of the procedural posture of the case the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in favor of the plaintiff. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).

The CNYPC is a mental health facility located in Marcy, New York and operated under the jurisdiction of the New York State Office of Mental Health ("OMH"). Complaint (Dkt. No. 1) § 2; Defendants' Rule 7.1(a)(3) Statement (Dkt. No. 38-3) ¶ 2.³ The SOTP is a "secure treatment facility" created for the purpose of providing care and treatment to dangerous sex offenders who are civilly confined after serving their prison sentences pursuant to New York Mental Hygiene Law ("MHL") Article 10. Defendants' Rule 7.1(a)(3) Statement (Dkt. No. 38-3) ¶ 2.⁴

3 Plaintiff is deemed to have admitted the allegations contained within defendants' Local Rule 7.1(a)(3) Statement, based upon his failure to oppose defendants' motion. See pp. 17-20, post.

4 Under New York law a "dangerous sex offender requiring confinement" is a detained sex offender suffering from mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility. N.Y. Mental Hyg. Law § 10.03(e). The MHL does not allow for indefinite confinement of a detained sex offender. Instead, the Commissioner of the OMH is required to provide a civilly committed sex offender and his or her counsel with annual notice of the right to petition the court for discharge, and must assure that each civilly confined person receives an examination for evaluation of his or her mental condition at least once a year, calculated from the date on which the court last ordered or confirmed the need for civil confinement. See N.Y. Mental Hyg. Law § 10.09(a) and (b). The law also includes a provision for annual court review in the form of an evidentiary hearing to determine the necessity of continued retention. See id. at § 10.09(d).

Plaintiff's complaint, which is sparse in factual detail, asserts that the treatment programs in which he has been forced to participate at the CNYPC subject him, as an atheist, to various religious rituals and practices.⁵ More specifically, he claims that The Good Lives Model and Boundaries programs teach that you must believe in spirituality, the Dialectic Behavior Therapy ("DBT"), Self Care Skills I & II, and Relaxation programs adopt or are patterned after the rituals and practices of Zen Buddhism, and the Growing up Male, From the Inside Out, Problem Solving, and Anger Management programs are all "Hazelden" products which incorporate Christian beliefs and practices. According to plaintiff's complaint, defendants' use of these programs violates the First Amendment's prohibition of establishment of religion as well as its protection of his right to the free exercise of religion.

5 It appears from the record that plaintiff's religious beliefs have fluctuated over time. At various points while in the custody of the New York State Department of Correctional Services (now the Department of Corrections and Community Services, or "DOCCS"), he indicated his religious affiliation as Buddhist, and later as Methodist. See Taylor Scott Decl. (Dkt. No. 32-3) Exhs. A and B. Most recently, in his religious designation of May 2011, plaintiff advised personnel at the CNYPC that he is now a Buddhist. Maxymillian Decl. (Dkt. No. 38-2) ¶ 55.

The sex offender treatment services provided at CNYPC through the SOTP are "evidence-based" methods; as new research emerges and best practices evolve, the SOTP adapts its services accordingly, including creation of new groups, modification of existing groups or discontinuation of groups which no longer reflect effective treatment modalities.⁶Defendants' Rule 7.1(a)(3) Statement (Dkt. No. 38-3) ¶ 3; Maxymillian Decl. (Dkt. No. 38-2) ¶¶ 7-8. The treatment programs at the CNYPC-SOTP are designed to address specific risks and criminogenic and responsivity needs of participants, and are targeted at reducing the person's risk of recidivism, enhancing his or her treatment engagement, developing self regulation skills, managing sexual deviancy, and assisting him or her in developing pro-social attitudes and behaviors. Defendants' Local Rule 7.1 Statement (Dkt. No. 38-3) ¶¶ 4 and 5; Maxymillian Decl. (Dkt. No. 10) ¶¶ 9-10. The programs may also provide educational and vocational training, didactic and psycho-educational training, pro-social development, and behavioral therapy, as well as process-oriented treatment. Id.

6 Defendants' first motion for summary judgment was denied based upon the court's finding that defendants had failed to carry their burden in demonstrating their entitlement to summary judgment, "primarily because they had not submitted the SOTP material so as to enable the court to determine whether or not their content supports plaintiff's First Amendment claims." McChesney v. Hogan, No. 9:08-CV-1186, 2011 WL 4592360, at * 3 (N.D.N.Y. Sep. 30, 2011) (Mordue, C.J.); Memorandum Decision and Order, dated Sep. 30, 2011 (Dkt. No. 35); see also Report and Recommendation, dated Aug. 2, 2011 (Dkt. 33). When filing their second summary judgment motion defendants requested permission to file the SOTP materials by traditional means for the court's in camera review in association with that motion, asserting that a public filing allowing CNYPC-SOTP residents to access the materials would run counter to their therapies. Dkt. No. 36. Upon review of the defendants' request, as well as the materials submitted, and having received no objection to the request from plaintiff, the court granted defendants' request to file the sOtp materials under seal, denied the request that the court consider the materials ex parte, and directed that defendants provide plaintiff an opportunity to review the materials by providing a complete set of the materials to plaintiff's SOTP counselor and a reasonable opportunity for plaintiff to review them in association with his preparation of a response to defendants' motion. See Decision and Order, dated Dec. 6, 2011 (Dkt. No. 41). Defendants have provided the court with all of the SOTP written materials challenged by plaintiff in this action, as well as two DVDs containing additional From the Inside Out program materials. SOTP Director Maxymillian has also advised the court that she personally oversaw plaintiff's review of the program materials, which took plaintiff a period of two to three days. Maxymillian Decl. (Dkt. No. 45) ¶ 3.

The group therapy protocols at the CNYPC-SOTP are developed by the group leaders at that facility and are reviewed and approved by SOTP Director Terri Maxymillian. Maxymillian Decl. (Dkt. No. 38-2) ¶ 11. The content and format for each program is drafted in such a manner that any SOTP clinical staff may lead the group. Id. at ¶ 12. Individuals committed to the SOTP are required to participate in the therapeutic programming, and if they choose not to do so, a court reviewing whether civil commitment remains necessary may continue to require in-patient treatment until the individual has appropriately addressed his or her risk to re-offend. See id. at ¶¶ 6, 50. Nonetheless, the SOTP does not rigidly require a civilly committed sex offender to attend and participate in every single session of a group in order to "pass" a class. Id. at ¶¶ 47-48. Instead, the expectation is that the residents will make an effort to engage and participate in the treatment modalities offered in a meaningful manner, yet allowing for participants to miss or opt out of a small portion of the therapy offered. Id. at ¶ 48.

Nine group therapies are at issue in this case; four of those are Hazelden products, including From the Inside Out, Growing Up Male, Problem Solving, and Anger Management. Maxymillian Decl. (Dkt. No. 38-2) ¶ 13. Plaintiff claims that the Hazelden products are Christian-based, and use of these programs violates his First Amendment freedoms. According to its website, www.hazelden.org, Hazelden which was founded in 1949, is one of the world's largest and most respected private not-for-profit alcohol and drug addiction treatment centers. Maxymillian Decl. (Dkt. No. 38-2) ¶ 18. Though originating as a care treatment center for alcoholic priests, it has since evolved into an entity assisting individuals, families, and communities struggling with abuse and addiction by providing treatment and recovery services as well as an array of resources, and its programs have grown to address a broader patient base. See id.

From the Inside Out is group therapy program designed to teach participants the need for healthy relationships and to take responsibility for their lives and their relationships without blame shifting. See Maxymillian Decl. (Dkt. No. 38-2) Exh. A. Growing Up Male, another group therapy modality used in the SOTP, is aimed at assisting CNYPC residents in developing the ability to identify current attitudes and beliefs that perpetuate the cycle of violence in society, to understand its costs, and to identify the different ways it is manifested. See id. at Exh. B. Problem Solving, yet another Hazelden product included within plaintiff's challenge, is intended to assist the participants in developing group problem solving techniques and appropriate participation and social interaction. See id. at Exh. C. Anger Management, the last of the Hazelden products at issue in this case, is designed to help CNYPC- SOTP residents recognize anger, aggression, and assertiveness, to understand the impact personal anger has had on their lives, and to develop skills to regulate anger and interrupt the aggression cycle in the future. See id. at Exh. D.

DBT, another group therapy program used in the SOTP, has been found to be an effective therapeutic tool for persons with personality disorders, teaching them to learn to regulate their emotions, tolerate stress, and ultimately, to avoid offending behaviors. Maxymillian Decl. (Dkt. No. 38-2) ¶ 35; see also id. at Exh. E. Self Care Skills I and II are group programs designed to teach CNYPC residents to understand and identify what causes their stress and how to develop appropriate coping mechanisms. Maxymillian Decl. (Dkt. No. 38-2) ¶ 36, Exh. F. Self Care II builds on the basic concepts taught in the first segment, and asks the participants to apply those concepts to explore their family systems by analyzing each family member's role in the family unit as well as what separates healthy families from dysfunctional families. See id. The self care and relaxation techniques practiced at the CNYPC are part of the DBT and are taught as part of a broader menu of relaxation tools of which group participants are made aware so that they may choose the techniques and relaxation tools that work best for them and apply them when needed. Maxymillian Decl. (Dkt. No. 38-2) ¶¶ 32; see also id. at Exhs. E, F, and G; Defendants' Rule 7.1(a)(3) Statement (Dkt. No. 38-3) ¶ 18. Under the DBT treatment modality a program participant may consider, but is not required to, employ these relaxation techniques to facilitate his or her treatment and progress through the various phases of the treatment program. Maxymillian Decl. (Dkt. No. 38-2) ¶ 33; Defendant's Rule 7.1(a)(3) Statement (Dkt. No. 38-3) ¶ 20.

The primary goal of the Living the Good Life (the "Good Lives Model" or "GLM") group program is to assist participants in understanding their identities as they relate to the needs they have in life. See Maxymillian Decl. (Dkt. No. 38-2) Exh. H. This modality is intended to help the participants to develop skills to attain those needs in appropriate and socially acceptable ways. See id.

Another treatment regimen at issue is the Boundaries program. See Maxymillian Decl. (Dkt. No. 38-2) Exh. I. That program is aimed at assisting the group participants to become aware of interpersonal boundaries, including physical, emotional, psychological, and sexual boundaries, as well as boundary violations. See id.

Use of all of the above referenced modalities in the SOTP is in furtherance of the overarching purposes of the entire treatment program, which are to rehabilitate sex offenders and protect the safety of communities by reducing the risk that persons civilly committed to the CNYPC for sex offender treatment will sexually re-offend upon release. Maxymillian Decl. (Dkt. No. 38-2) ¶ 58. II. PROCEDURAL HISTORY

Plaintiff commenced this action on November 6, 2008. A second related action, Civil Action No. 9:08-CV-1290 (NAM/DEP), was initiated by McChesney some three weeks later, on November 28, 2008. The two actions were subsequently consolidated by the court, sua sponte, but have since been severed.⁷ Dkt. Nos. 4, 13.

7 The two actions were consolidated by the court, of its own initiative, based upon a report I issued on December 23, 2008 recommending that measure and approval of that recommendation by Chief District Judge Norman A. Mordue on March 9, 2009. The court's consolidation order designated Civil Action No. 9:08-CV-1186 (NAM/DEP) as the lead action. As a result of the dismissal of plaintiff's claims in Civil Action No. 9:08-CV-1290 (NAM/DEP), on August 24, 2010, the court issued another order, sua sponte, severing the two actions in order to allow the plaintiff to appeal the dismissal to the United States Court of Appeals for the Second Circuit without awaiting the outcome of this action. Civil Action No. 9:08-CV-1290 (NAM/DEP) has been closed, and it appears that plaintiff did not file an appeal in that action.

Plaintiff's complaint in this action named OMH Commissioner Michael Hogan and CNYPC Executive Director Donald Sawyer as defendants, and asserted claims under the First and Fifth Amendments to the United States Constitution. On April 21, 2009, defendants moved for dismissal of plaintiff's claims in the two consolidated actions. Dkt. No. 17. The motion was granted in large part, leaving only plaintiff's First Amendment claims against the defendants in this action in their official capacities for prospective injunctive relief. Dkt. Nos. 23, 25.

On March 31, 2011, following expiration of the deadline for completion of discovery, defendants filed their first motion for summary judgment. Dkt. No. 32. That motion was referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). In a report dated August 2, 2011, finding that defendants had failed to meet their burden of demonstrating the lack of triable issues of material fact, I recommended denial of defendants' motion. Dkt. No.33. That conclusion was based primarily upon the defendants' failure to provide the court with anything more than the SOTP protocols in support of their motion. On September 30, 2011, then Chief District Judge Norman A. Mordue, accepted my report and recommendation, except as to my factual finding that From the Inside Out is a treatment modality product developed by Hazelden, which incorporates the twelve step Alcoholics Anonymous and "NA methodology" used in treatment programs, and is based upon Christian principles.⁸ Dkt. No. 35 at p. 5. In doing so, the court declined defendants' request to permit supplementation of the record on the motion before it, but expressly stated that it would entertain a second motion for summary judgment if filed within sixty days. Dkt. No. 35 at pp. 5-6.

8 In rejecting that factual finding, Judge Mordue found instead that this was defendants' characterization of plaintiff's contention, which defendants dispute, and noted that "[t]he statement on page 18 [of the report and recommendation] that defendants 'acknowledge that the group treatment modalities at issue incorporate spirituality' differs somewhat from defendants' position." Dkt. No. 35 at p. 5. Judge Mordue agreed with my ultimate conclusion, however, that defendants had not met their burden on the summary judgment motion since they had not filed SOTP materials with the court so as to enable the court to determine whether or not their content supports plaintiff's First Amendment claims. See id.

Plaintiff timely filed the pending renewed motion on November 29, 2011. Dkt. No. 38. Despite having been served with the requisite notification of the consequences of failing to respond to the motion, as required under Northern District of New York Local Rule 56.2, and having reviewed the SOTP program materials in the presence of SOTP Director Maxymillian, see Dkt. No. 38, plaintiff has failed to file any opposition to defendants' motion, which is now ripe for determination and has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See also Fed. R. Civ. P. 72(b).

III. DISCUSSION

A. Summary Judgement Standard

Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, summary judgment is warranted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986); Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material", for purposes of this inquiry, if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S. Ct. at 2510; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S. Ct. at 2510.

A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4, 106 S. Ct. at 2511 n.4; Security Ins., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material issue of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324, 106 S. Ct. at 2553; Anderson, 477 U.S. at 250, 106 S. Ct. at 2511. Though pro se plaintiffs are entitled to special latitude when defending against summary judgment motions, they must establish more than mere "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986); but see Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999) (noting obligation of court to consider whether pro se plaintiff understood nature of summary judgment process).

When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences from the facts, in a light most favorable to the nonmoving party. Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). Summary judgment is warranted only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. See Building Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002) (citation omitted); see also Anderson, 477 U.S. at 250, 106 S. Ct. at 2511 (summary judgment is appropriate only when "there can be but one reasonable conclusion as to the verdict").

B. Legal Significance of Plaintiff's Failure to Properly Respond to Defendant's Local Rule 7.1(a)(3) Statement

Plaintiff has neither opposed defendants' motion, nor responded to Defendants' Statement of Undisputed Material facts, as required by Local Rule 7.1(a)(3). Before turning to the merits of plaintiff's claims, the court will therefore address as a threshold matter the legal significance of his failure to properly respond to that statement.

The consequences of this failure are potentially significant. By its terms, Local Rule 7.1(a)(3) provides that "[t]he Court shall deem admitted any facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." N.D.N.Y.L.R. 7.1(a)(3). Courts in this district have routinely enforced Rule 7.1(a)(3) and its predecessor, Rule 7.1(f), by deeming facts admitted upon an opposing party's failure to properly respond. See, e.g., Elgamil v. Syracuse Univ., No. 99-CV-611, 2000 WL 1264122, at *1 (N.D.N.Y. Aug. 22, 2000) (McCurn, S.J.) (listing cases);⁹see also Monahan v. New York City Dep't of Corr., 214 F.3d 275, 292 (2d Cir. 2000) (discussing district courts' discretion to adopt local rules like 7.1(a)(3)).¹⁰

9 Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.

10 As to any facts not contained in the defendants' Local Rule 7.1(a)(3) statements, I will assume for purposes of this motion that plaintiff's version of those facts is true, as plaintiff is entitled to the benefit of all inferences at this stage. Wright v. Coughlin, 132 F.3d 133, 137 (2d Cir. 1998).

Undeniably, pro se plaintiffs are entitled to some measure of forbearance when defending against summary judgment motions. See Jemzura v. Public Serv. Comm'n, 961 F. Supp. 406, 415 (N.D.N.Y. 1997) (McAvoy, C.J.). The deference owed to pro se litigants, however, does not extend to relieving them of the ramifications associated with a failure to comply with the court's local rules. See Robinson v. Delgado, No. 96-CV-169, 1998 WL 278264, at *2 (N.D.N.Y. May 22, 1998) (Pooler, J. & Hurd, M.J.); Cotto v. Senkowski, No. 95-CV-1733, 1997 WL 665551, at *1 (N.D.N.Y. Oct. 23, 1997) (Pooler, J. & Hurd, M.J.); Wilmer v. Torian, 980 F. Supp.106, 106-07 (N.D.N.Y. 1997). Thus, "a pro se litigant is not relieved of the duty to meet the requirements necessary to defeat a motion for summary judgment." Latouche v. Tompkins, No. 9:09-CV-308, 2011 WL 11003045, at *1 (N.D.N.Y. Mar. 23, 2011) (Mordue, C.J.) (citing Nealy v. U.S. Surgical Corp., 587 F. Supp. 2d 579, 583 (S.D.N.Y. 2008) and Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003)). Where a plaintiff has been specifically notified of the consequences of failing to respond to a movant's Local Rule 7.1(a)(3) Statement but has failed to do so, and the facts contained within that statement are supported by the evidence in the record, the court will accept such facts as true. Id. (citing Littman v. Senkowski, 2008 WL 420011, at *2 (N.D.N.Y. 2008) (citing Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996)).

With their motion, defendants served a court-authorized notice specifically warning plaintiff of the consequences of his failure to properly respond to defendants' Local Rule 7.1(a)(3) Statement.¹¹ That form advised the plaintiff as follows:

11 Northern District of New York Local Rule 56.2 mandates that when summary judgment is sought against a pro se litigant the moving party must notify that pro se litigant of the consequences of failing to respond to the motion. See N.D.N.Y.L.R. 56.2. The local rule also advises that a sample notice can be obtained through the court.

Pursuant to Local Rule 7.1 of the Northern District, you are required to submit the following papers in opposition to this motion (1) a memorandum of law (containing relevant factual and legal argument); (ii) one or more affidavits in opposition to the motion and (iii) a short and concise statement of material facts as to which you claim there are genuine issues in dispute. These papers must be filed and served in accordance with the time set by Local Rule 7.1.

Notification of Consequences of Failing to Respond to a Summary Judgment Motion (Dkt. No. 12-1) (emphasis in original).¹² The notification continued, warning the plaintiff as follows:

If you do not submit a short and concise statement of material facts as to which you claim there are general issues in dispute, all material facts set forth in the statement filed and served by defendant(s) shall be deemed admitted.

12 The court notes that although the form utilized by the defendants tracks the language of a previous court-approved iteration, the court has revised the form, and the form sent to the plaintiff is therefore not the current court-approved notification. The changes made, however, are not so material as to provide a basis to relieve the plaintiff from the consequences of his failure to respond to Defendant's Local Rule 7.1(a)(3) Statement.

Id.

As the foregoing reflects, the plaintiff was squarely put on notice of the consequences of his failure to respond to defendants' motion. In view of the foregoing, despite plaintiff's pro se status, I recommend that the court accept defendants' assertions of facts as set forth in his Local Rule 7.1(a)(3) Statement as uncontroverted when considering the pending motion.

C. Summary of Governing First Amendment Principles

The First Amendment, made applicable to the states through the Fourteenth Amendment, provides in relevant part that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .. " U.S. CONST. AMEND. I. "It embraces two fundamental concepts: freedom to believe and freedom to act on one's beliefs." Hatzfeld v. Eagen, No. 9:08-CV-283, 2010 WL 5579883, at *6 (N.D.N.Y. Dec. 10, 2010) (Homer , M.J.) (citing Decker v. Hogan, No.9:09-cv-0239, 2009 WL 3165830, at * 2 (N.D.N.Y. Sept. 28, 2009) (McAvoy, S.J.)) (internal citations omitted), report and recommendation adopted, 2011 WL 124535 (Jan. 14, 2011) (Strom, S.J.).

Both of these basic freedoms are potentially implicated in this action. Plaintiff asserts that by incorporating religious tenets in a required treatment program for sex offenders, the state has violated the First Amendment's requirement regarding establishment of religion and separation of church and state. In addition, plaintiff maintains that the defendants have interfered with his right to exercise or, conversely, to be free from, religious beliefs as his conscience dictates.

D. Plaintiff's Establishment Clause Claim

The touchstone for the court's analysis of an Establishment Clause claim is the deeply rooted principle that the " 'First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.' " McCreary Cnty., Kentucky v. American CivilLiberties Union, 545 U.S. 844, 860, 125 S. Ct. 2722, 2733 (2005) (quoting Epperson v. Arkansas, 393 U.S. 97, 104, 89 S. Ct. 266 (1968) (other citation omitted). "[A]t a minimum, the government may not coerce anyone to participate in religion or its exercise." Hatzfeld, 2010 WL 5579883, at *6 (quoting Lee v. Weisman, 505 U.S. 577, 587, 112 S. Ct. 2649, 2655 (1992)). In the Second Circuit, analysis of an alleged Establishment Clause violation is governed by the test enunciated by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105 (1971), as modified by Agostini v. Felton, 521 U.S. 203, 232, 117 S. Ct. 1997, 2015 (1997). Skoros v. City of New York, 437 F.3d 1, 17 (2d Cir. 2006); DeStefano v. Emergency Housing Group, Inc., 247 F.3d 397, 406 (2d Cir. 2001). The focus of the inquiry is "whether the government acted with the purpose of advancing or inhibiting religion. . .. " DeStefano, 247 F.3d at 406 (quoting Mitchell v. Helms, 530 U.S. 793, 845, 120 S. Ct. 2530, 2560 (2000) (O'Connor, J. concurring)) (internal quotations omitted). The "three primary criteria" employed under Lemon-Agostini are "whether the action or program 'result[s] in governmental indoctrination; define[s] its recipients by reference to religion; or create[s] an excessive entanglement.'" DeStefano, 247 F.3d at 406 (quoting Agostini, 521 U.S. at 234, 117 S. Ct. 1997) (alterations in original). "The ultimate inquiry for the purposes of [p]laintiffs' § 1983 claim is whether the [SOTP] program requires participation in religious activity." Miner v. Goord, 354 Fed. App'x 489, 492 (2d Cir. 2009) (citing Warner v. Orange Cnty. Dep't of Prob., 115 F.3d 1068, 1074-1075 (2d Cir. 1997)) (cited in accordance with Fed. R. App. Proc. 32.1 not for precedential effect but to show continuing vitality of Warner).¹³

13 The court notes that unlike the inquiry involved in a Free Exercise claim, the sincerity of the plaintiff's belief has no bearing on the question of whether there has been an Establishment Clause violation since this provision was "drafted, as Supreme Court has repeatedly stated, to prevent government from coercing anyone to support or participate in a religion or its exercise, or otherwise act in a way which establishes a [state] religion or religious faith, or tends to do so." Alexander v. Schenk, 118 F. Supp. 2d 298, 305 (N.D.N.Y. 2000) (quoting Lee, 505 U.S. at 587, 112 S. Ct. 2649) (emphasis and alteration in original) (internal quotations omitted). Thus, insofar as plaintiff has changed his religious designation, over time, potentially raising questions as to the sincerity of his beliefs, any such questions have no bearing on the court's determination of his Establishment Clause claim.

The First Amendment's Establishment Clause prohibits a government from coercing any person to participate in religion or its exercise.¹⁴Alexander v. Schenk, 118 F. Supp. 2d at 301 (citing, inter alia,Lee, 505 U.S at 587, 112 S. Ct. 2649). The threshold question, then, is whether McChesney was coerced into participating in the SOTP. In this instance there is no dispute that plaintiff's commitment to the CNYPC-SOTP was involuntary.

14 Where coercion is not at issue, to assess whether an Establishment Clause violation has occurred the court must consider whether "the practice (1) has a secular purpose; (2) whether it advances or inhibits religion in its principal or primary effect; and (3) whether it fosters excessive entanglement with religion." Alexander, 118 F. Supp. 2d at 301 (citing Lemon, 403 U.S. at 612-613, 91 S. Ct. 2105; Allegheny Cnty. v. Am. Civil Liberties Union, 492 U.S. 573, 592, 109 S. Ct. 3086 (1989)); Skoros, 437 F.3d at 17.

The next inquiry for the court is whether the treatment modalities incorporated into the SOTP are religious in nature and, if so, whether secular alternatives are available to the plaintiff. As I have previously observed in this case, and other courts in the district have recognized, "the law is anything but clear on the question of whether compelled use by officials at the CNYPC of treatment materials peripherally based upon religious principles violates the rights of patients involuntarily committed and subjected to the program." McChesney v. Hogan, Nos. 9:08-CV-1186, 9:08-CV-1290, 2010 WL 1027443, at *11 (N.D.N.Y. Feb. 26, 2010) (citing Pratt v. Hogan, 631 F. Supp. 2d 192, 198 (N.D.N.Y. 2009) (Hurd, J.)), report and recommendation adopted, 2010 WL 1037957 (N.D.N.Y. Mar 18, 2010) (Mordue, C.J.); Carey v. Hogan, Nos. 9:08-CV-1251, 9:08-CV-1280, 2010 WL 2519121, at * 6 (N.D.N.Y. Mar. 30, 2010) (Baxter, M.J.) report and recommendation adopted, 2010 WL 2519961 (N.D.N.Y. Jun 15, 2010) (Baldwin, J.). Significantly, however, those decisions were made at the pleading stage upon Federal Rule of Civil Procedure 12(b)(6) motions to dismiss, where the plaintiffs alleged, and the court was bound to accept as true, that the SOTP programs at issue incorporated religious beliefs and/or practices. The court's research has not revealed a reported decision in this circuit addressing the merits of such a claim based upon a fully developed evidentiary record.¹⁵

15 But see Pratt v. Hogan, 79 A.D.3d 1669, 914 N.Y.S.2d 540 (4th Dep't 2010), which affirmed the dismissal of the plaintiff's Article 78 petition, brought pursuant to New York Civil Practice Law and Rules ("CPLR"), seeking a judgment "vacating the SOTP" and "directing respondents to cease and desist all programming with any religious foundation, belief, ritualism, connotation or suggestion of religious affiliation" on the grounds that such programming violates his constitutional right to freedom of religion," id. at 1670, 914 N.Y.S.2d at 541, based upon a finding that "a government facility does not violate the constitutional right to freedom of religion merely by offering religion-based sex offender treatment but only when an individual is coerced into participating in such programming. Id. (citing Mtr. of Griffin v. Coughlin, 88 N.Y.2d 674, 677, 649 N.Y.S.2d 903, 673 N.E. 2d 98, cert. denied 519 U.S. 1054, 117 S.Ct. 681; Alexander, 118 F. Supp. 2d at 302; Warner, 115 F.3d at 1074-1075). The court found further that,

Petitioner, who is an atheist, failed to establish that he was required to participate in any religion-based treatment programs offered by CNYPC and, indeed, the documents submitted by petitioner demonstrate that most of the programs cited by petitioner as being religion-based provide nothing more than relaxation, meditation or introspection techniques. The record further establishes that petitioner was free to choose the programs in which he would participate and that there were several secular programs from which he could choose to satisfy his sex offender treatment requirement

Id., 914 N.Y.S.2d at 542-42 (citing Griffin, 88 N.Y.2d at 677, 649 N.Y.S.2d 903, 673 N.E. 2d 98; Warner, 115 F.3d at 1075).

E. The SOTP Programs At Issue

At issue in this case are nine group therapy programs employed in the SOTP, four of which are Hazelden products, including from the Inside Out (Hazelden), Growing Up Male (Hazelden), Problem Solving (Hazelden), Anger Management (Hazelden), DBT, Self Care Skills I and II, Relaxation, Good Lives Model,¹⁶ and Boundaries. Defendants have now submitted to the court a complete copy of these SOTP treatment modalities, including the protocols for each, and the formatted content of the programs, including the lesson plans, and the related worksheets.¹⁷Among the materials provided are also two DVDs that are used in association with the From the Inside Out group program. The protocols reveal the structure of each treatment modality and the topic of each weekly session. The program materials, DVDs, and worksheets show the actual content of each treatment modality.

16 SOTP Director Terri Maxymillian states that Group Problem Solving is no longer offered at the CNYPC and has not been utilized for more than two years. Maxymillian Decl. (Dkt. No. 38-2) ¶ 21. A federal court has no authority to decide an issue when the relief sought can no longer be given, or is no longer needed. Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d Cir.1983). Since plaintiff's only remaining claims seek prospective injunctive relief and the Group Problem Solving program is no longer in use in the SOTP, it would appear that his challenge to that program is now moot.

17 As was previously mentioned, the content and format for each program is drafted in such a manner that any SOTP clinical staff may lead the group, which gives the SOTP flexibility in the assignment of instructors each semester. Maxymillian Decl. (Dkt. No. 38-2) ¶ 12. It thus appears that while the material presented each semester is comparable, it may not be identical. See id.

1. The Growing Up Male, Problem Solving, and Anger Management Group Therapy Modalities

Plaintiff alleges that the Growing Up Male, Problem Solving, and Anger Management group therapy programs are all Hazelden products, which incorporate Christian beliefs and practices. Complaint (Dkt. No. 1) ¶ 3. Upon careful review of these program materials it is evident that they contain no reference to God, a Higher Power, or religion, nor do they appear to incorporate any religious rituals or practices.¹⁸ Furthermore, there is nothing within those Hazelden group therapy programs supporting plaintiff's allegations that the programs are based in Christianity and include Christian practices. To the contrary, there is simply no evidence in the record before the court suggesting that the Growing Up Male, Problem Solving, and Anger Management group therapy modalities incorporate any religious beliefs or practices. As result, based upon the evidence before the court I have determined that no reasonable juror could find that these programs are offensive to the Establishment Clause.

18 At week nine the Anger Management lesson includes a sample "Anger Control Plan" that identifies stress relief strategies. See Maxymillian Decl. (Dkt. No. 38-2) Exh. D. Among the potential strategies are exercise, relaxation, journal, and mediation. To the extent that plaintiff may take issue with the reference to meditation, the court notes that its review of the program material reveals no connection in the program materials between the suggested meditation and any religious practice or philosophy. To the extent that plaintiff alleges that meditation is a Buddhist practice, as defendants point out, there is no basis for a finding that only Buddhists meditate.

2. From the Inside Out

Plaintiff similarly alleges that From the Inside Out, another Hazelden product, incorporates Christianity. Once again, however, the program materials associated with that group therapy modality do not support plaintiff's claim. The From the Inside Out group therapy materials reveal that the goal of that program is to teach SOTP participants that relationships are critical to living a responsible and productive life, and to take personal responsibility for the relationships in their lives. See Maxymillian Decl. (Dkt. No. 38-2) Exh. A. During the first week of that program the residents are taught, inter alia, that the course is about relationships and that relapse is most often "traced back to not knowing how to participate in healthy relationships - with ourselves, with others, and with our Higher Power." Id. Residents are asked to complete a worksheet intended to help the participant realize why relationships are important. The introductory paragraph to the worksheet notes, "There are many kinds of relationships. This exercise provides the names of different types of relationships you might have with different people[,]" and proceeds to list and identify six types of relationships, including the relationship with self, a significant other, children, relatives, support people, and a "Higher Power." See id. One's relationship with a higher power is labeled "faith." See id. The participant is then asked to chose one of the relationships listed, and to write the name of a person he or she would like to reestablish or continue a relationship with, and also to write in the type of relationship that is desired. See id. During the fifth session of the From the Inside Out group therapy, "trust" is discussed, and the resident is asked to complete a worksheet addressing that topic. Reference is once again made to "your Higher Power"; the worksheet instructs, "What you most owe yourself and your Higher Power is to change what you bring to your relationship that is not fair." Id.

In my view, especially when considered in context of the goal of the From the Inside Out group therapy and the particular exercises in which they appear, it seems clear that these mere references to a higher power within that group modality do not advance or inhibit any particular religion. See Skoros, 437 F.3d at 13. It is equally obvious that the mention of a potential relationship with a higher power in these lessons and activities does not require or coerce the participant into believing in the existence of a higher power. Rather, these references simply supply an example of a kind of personal relationship an individual may have and may wish to pursue, one that is identified as "faith", in order to advance their healing.

At week ten of the From the Inside Out Program the lesson is focused on trust in communication. See Maxymillian Decl. (Dkt. No. 38-2) Exh. A. Within the context of that discussion, to emphasize the point that words have different meanings to different people, the instructor may use the word "Christmas" as an example, explaining that "[t]o one it might mean the best time of year, presents, religion, family, love, and so on. But to other people it might mean disappointment, pain and abandonment." Id. at ¶ 27 and Exh. A. At week 12, a Chinese parable, entitled "The Difference Between Heaven and Hell", is used in association with the lesson about making and keeping healthy relationships.¹⁹See id. It is intended to help make the point that in healthy relationships with others, everyone survives, but when you attempt to rely on yourself, you often fail. Maxymillian Decl. (Dkt. No. 38-2) ¶ 28. Again, there is nothing in the material before the court that suggests that these lessons foster, promote, or coerce any religious belief or practice.

19 That parable teaches as follows:

A very old man knew that he was going to die soon. Before he died, he wanted to know what heaven and hell were like, so he visited the wise man in his village. "Can you tell me what heaven and hell are like?" he asked the wise man. "Come with me and I will show you," the wise man replied. The two men walked down a long path until they came to a large house. The wise man took the old man inside, and there they found a large dining room with an enormous table covered with every kind of food imaginable. Around the table were many people, all thin and hungry, who were holding twelve-foot chopsticks. Every time they tried to feed themselves, the food fell off the chopsticks. The old man said to the wise man, "Surely this must be hell. Will you now show me heaven?" The wise man said, "Yes, come with me." The two men left the house and walked farther down the path until they reached another large house. Again they found a large dining room and in it a table filled with all kinds of food. The people there were happy and appeared well fed, but they also held twelve-foot chopsticks. "How can this be?" asked the old man. "These people have twelve-foot chopsticks and yet they are happy and well fed. The wise man replied, "In heaven the people feed each other."

Maxymillian Decl. (Dkt. No. 38-2) Exh. A.

The DVDs used with the From the Inside Out program feature Ernie Larsen as an instructor/moderator, along with several former prison inmates who, at the beginning of the DVD set, discuss their respective backgrounds and their willingness to participate in creating the DVD due to a desire to give back and demonstrate to others that people are capable of changing their own lives. The DVDs include some instruction from Larsen, as well as discussion and role playing by the former inmates which coincides with the topics discussed each week in the program materials. The DVD was filmed at a halfway house. Maxymillian Decl. (Dkt. No. 38-2) ¶ 23. Occasionally in the DVD there are banners visible in the background that make reference to "God."²⁰ The men appearing in the DVD do not, however, discuss or promote their religion, and there are no lessons, interviews, or role playing that obviously relate to any religion or religious practices. In my view, these few fleeting and inconspicuous appearances of religious banners in the DVDs, or the mention of Christmas, or reciting of a Chinese parable, alone are insufficient to support plaintiff's claim that the From the Inside Out program is based in Christianity. See Skoros, 437 F.3d at 13.

20 The two banners that the court observed read as follows: "Live in God's Grace", and "All things Bright and Beautiful Come From God."

3. GLM, DBT, Self Care Skills I and II, and Relaxation

According to plaintiff's complaint, the GLM, DBT, Self-Care Skills I and II, and Relaxation group treatment modalities teach the rituals and practices of Buddhism. The purpose of the GLM modality is to assist participants in understanding a part of their identity as it relates to what they want to approach in life, which are identified as "primary needs." Maxymillian Decl. (Dkt. No. 38-2) Exh. H. There are fourteen basic human primary needs identified.²¹See id. At the start of that group therapy, participants are asked to rank in order of personal importance their primary needs, including spirituality and inner peace. See id. Residents are free to discount any of the primary human needs, including spirituality, if that need has no significance to the path they wish to pursue in furtherance of a socially acceptable lifestyle. Maxymillian Decl. (Dkt. No. 38-2) ¶ 44. In the following weeks, each class is devoted to discussing one or more of the primary needs. Id. at ¶ 42. There is no evidence of Buddhist practices or teachings contained within the GLM group therapy program materials.

21 Those fourteen primary needs are identified as autonomy, self-esteem, intimacy, health, sex, creativity, spirituality, financial security, excellence in work, recreation/leisure time, inner peace, intellectual stimulation, friendships and socialization, and family. Maxymillian Decl. (Dkt. No. 38-2) Exh. H.

DBT is designed to teach SOTP participants to regulate their emotions, manage stress and interpersonal relationships, and become aware of potential vulnerabilities they may have. See Maxymillian Decl. (Dkt. No. 38-2) Exh. E. For weeks three and four, the lesson is described in the lesson plan as "Distract-Wise Mind ACCEPTS". See id. The lessons utilize acronyms to assist in teaching "Crisis Survival Strategies"; in four boxes the handout for weeks three and four lists "[s]kills for tolerating painful events and emotions when you cannot make things better right away." Id. As indicated in the first box in that handout, "ACCEPTS" denotes "Activities, Contributing, Comparisons, Emotions, Pushing away, Thoughts, Sensations." See id. That handout also refers to "Self-Soothe the Five Senses" as another apparent destressing strategy, as well as "IMPROVE THE MOMENT", with "IMPROVE" referencing "Imagery, Meaning, Prayer, Relaxation, One thing at a time,

Vacation, Encouragement", and finally "PROS AND CONS" in the last box, referring to developing a list of pros and cons of "tolerating the distress" and another list of pros and cons resulting from "not tolerating the distress". See id. The materials further explain the various strategies signified by IMPROVE, describing the seven skills the word symbolizes, including imagery, meaning, prayer, relaxation, and "one thing in the moment," specifically stating with regard to prayer and relaxation,

With Prayer:
Open your heart to a supreme being, greater wisdom, God, your own wise mind. Ask for strength to bear the pain in this moment. Turn things over to God or a higher being.
With Relaxation:
Try muscle relaxing by tensing and relaxing each large muscle group, starting with your hands and arms, going to the top of your head, and then working down; listen to a relaxation tape; exercise hard; take a hot bath or sit in a hot tub; drink hot milk; massage your neck and scalp, your calves and feet. Get in a tub filled with very cold or hot water and stay in it until the water is tepid. Breathe deeply; half-smile; change facial expression.

Maxymillian Decl. (Dkt. No. 38-2) Exh. E (emphasis in original).

According to SOTP Director Maxymillian, DBT is an effective therapeutic tool for persons with personality orders; for some, learning to relax or pray, as referenced in the lesson formats for weeks three and four, helps them to manage or avoid stressful situations. Maxymillian Decl. (Dkt. No. 38-2) ¶ 35. Other than the two generic references to prayer and relaxation as potential skills that participants can employ as tools to aid in diffusing stressful situations, there are no references to any religion or religious practices or rituals found in the DBT program materials and, contrary to plaintiff's allegations in this action, they do not mention Buddha or incorporate Buddhism.²²

22 "Buddha" is an "Indian mystic and founder of Buddhism. He began preaching after achieving supreme enlightenment at the age of 35." American Heritage Dictionary 241 (4th ed. 2000). Buddhism is defined by the same source as "[t]he teaching of Buddha that life is permeated with suffering caused by desire, that suffering ceases when desire ceases, and that enlightenment obtained through right conduct, wisdom, and meditation releases one from desire, suffering, and rebirth." Id. Nothing in the content of the DBT, Self Care Skills I and II, and Relaxation program materials refers to or discusses these concepts.

The Self Care Skills I and II group treatment programs are intended to teach residents the causes of stress and enable them to develop appropriate coping skills. Maxymillian Decl. (Dkt. No. 38-2) ¶ 36 and Exh. F. The second segment of that program builds on the concepts taught in the first and asks the participants to apply those concepts to explore their family systems by analyzing each family member's role in the family unit, as well as what separates healthy families from dysfunctional families. See id. In Self Care Skills II, in the lesson plan for week two, which is described as understanding family belief patterns, participants are instructed how each is shaped by his or her past and are asked to brainstorm about their own belief patterns. See id. Two categories are identified for the brainstorming exercise: "family" and "individual." The subcategories under family include family configuration, ethnic origin, cultural values, economics, and religion. See id. These concepts are introduced as part of the discussion pertaining to understanding family belief patterns and are continued into weeks three of Self Care Skills II, when the discussion is focused on the function of families. Maxymillian Decl. (Dkt. No. 38-2) ¶ 37. The handout associated with that lesson describes how healthy families function and what needs they fulfill for their members, including maintenance, nurturance, inclusion, privacy, esteem, understanding, recreation, and spirituality. See id. at Exh. F. These are the only references to religion or spirituality that are found in the Self Care Skills I and II program materials. As with DBT, based upon a review of the materials before me, I find no evidence to support plaintiff's allegation that the Self Care Skills I and II group therapies are Buddhist-based.

I next turn to the Relaxation group therapy. See Maxymillian Decl. (Dkt. No. 38-2) Exh. G. Defendants concede that this program includes relaxation techniques, such as self awareness and deep breathing, which may be associated with some Eastern philosophies such as Buddhism. Id. at ¶ 31. The court's review of the program materials associated with this modality, however, confirms that there is no reference to any of those philosophies, any other religion, or to the concepts of religion, a higher power, or even spirituality for that matter.

4. Boundaries Group Therapy

The only remaining program to be addressed is the Boundaries program, the purpose of which is to teach SOTP residents the concept of interpersonal boundaries and to understand boundary violations. In that group treatment modality, I have found a single reference to religion in the program materials. At week seven, the resident is asked to identify how much he or she is threatened by others whose religious views differ from his or hers. Maxymillian Decl. (Dkt. No. 38-2) ¶ 46 and Exh. I. Once again, this single general reference to religion is insufficient to support an Establishment Clause violation. See Skoros, 437 F.3d at 13.

In sum, a careful review of the record before the court, reveals that, at worst, six of the nine group treatment modalities utilized in the SOTP include some acknowledgment that religion and/or spirituality plays an important role in our society and can contribute to healing and provide a potential tool for managing difficult situations in one's life. Of the nearly 600 pages of program materials submitted to the court, I have found only twelve general references to the concept of religion or spirituality. The Establishment Clause, however, has never been interpreted to require government "'to purge from the public sphere all that in any way partakes of the religious'", Skoros, 437 F.3d at 13 (quoting Van Orden v. Perry, 545 U.S. 677, 699, 125 S. Ct. 2854, 2868 (2005) (Breyer, J., concurring)), nor does that clause demand that courts "'sweep away all government recognition and acknowledgment of the role of religion in the lives of our citizens,'" id. at 30 (quoting Allegheny Cnty., 492 U.S. at 623, 109 S. Ct. 3086). Similarly, references to spirituality alone do not draw into play the Establishment Clause. Hatzfeld, 2010 WL 5579883, at *7 (citing Decker v. Hogan, No. 9:09-CV-0239, 2009 WL 3165830, at *4 (N.D.N.Y. Sep. 28, 2009) (in turn citing Boyd v. Coughlin, 914 F. Supp. 828, 833 (N.D.N.Y. 1996) and Pratt v. Hogan, No. 6:08-cv-1003, 2009 WL 87587, at *2 (N.D.N.Y. Jan. 9, 2009)).

To be sure, as the Second Circuit has recognized,

the type of coercion that violates the Establishment Clause need not involve either the forcible subjection of a person to religious exercises or the conditioning of relief from punishment on the attendance at church services. Coercion is also impermissible when it takes the form of "subtle coercive pressure" and interferes with an individual's "real choice" about whether to participate in worship or prayer.

DeStefano, 247 F.3d at 412 (citations omitted). In other words, the fact that participants are not "required" to engage in prayer or participate in religion is not necessarily dispositive. The Supreme Court has cautioned "that purpose must be taken seriously under the Establishment Clause and needs to be understood in light of context[.]" McCreary Cnty., Kentucky, 545 U.S. at 874, 125 S. Ct. at 2733.

The unrefuted goals of the SOTP, as well as the treatment modalities contained within the record, are secular - that is, to rehabilitate dangerous sex offenders and thereby further the state's interest in protecting the safety of its communities by reducing the risk of recidivism of sex offenders who are released into society. Each of the group therapy modalities at issue has its own goal intended to further this secular purpose; none of these goals is intended to promote religion or spirituality. Moreover, the record is devoid of any evidence even remotely suggesting that the treatment modalities at issue employ subtle coercion to inculcate the notion that participants are required to participate in a religion or exercise spirituality. To the contrary, the references to religion and spirituality appear on limited occasions throughout the materials as examples of types of personal relationships or skills that may be used to promote mental health and achieve a socially acceptable lifestyle. Additionally, defendants have established that SOTP participants are afforded the option of not participating in activities they perceive as spiritual or offensive to their religious beliefs; an SOTP resident's decision not to participate in these relatively few exercises or discussions would in no way impede his or her progress in the program. Indeed, it seems clear that on the record before this court that the concepts of religion and spirituality are not coercively employed in the SOTP program, but instead merely introduced as an effort to provide SOTP participants with options and/or skills for improving their lives.

In view of the foregoing, based upon the evidence before the court, I have determined that no reasonable factfinder could conclude that the SOTP group therapy programs at issue in this case violate the Establishment Clause, and I therefore recommend that defendants' motion for summary judgment as to this claim be granted.

F. Plaintiff's Free Exercise Claim

In addition to a violation of the Establishment Clause, plaintiff also complaints of interference with his rights under the Free Exercise Clause of the First Amendment. That provision prohibits "governmental compulsion either to do or refrain from doing an act forbidden or required by one's religion, or to affirm or disavow a belief forbidden or required by one's religion." Mozert v. Hawkins Cnty. Bd. of Educ., 827 F.2d 1058, 1066 (2d Cir. 1987), cert. denied, 484 U.S. 1066, 108 S. Ct. 1029 (1988).²³ In general, in order to avoid a violation of the Free Exercise Clause of the First Amendment a government action that substantially burdens a religious practice must be justified by a compelling government interest. See Sherbert v. Verner, 374 U.S. 398, 406, 83 S. Ct. 1790, 1795 (1963). In a prison setting, due to the unique concerns presented, the governmental burden in this regard is substantially lessened. See Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003).

23 Courts have consistently recognized that atheism falls within the ambit of the First Amendment's protection. Hatzfeld, 2010 WL 557883, at * 6 (citing cases); see also Wallace v. Jaffree, 472 U.S. 53, 105 S. Ct. 2479, 2487 (1985) ("[T]he Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all."). At the time of commencement of this action plaintiff asserted that he was an atheist. However, it appears that he is now claiming to be Buddhist.

It is recognized that while inmates are by no means entitled to the full panoply of rights guaranteed under the United States Constitution, including its First Amendment, the Free Exercise Clause of that amendment does afford them at least some measure of constitutional protection, including their right to participate in congregate religious services. See Pell v. Procunier, 417 U.S. 817, 822, 94 S. Ct. 2800, 2804 (1974) ("In the First Amendment context . . . a prison inmate retains those First Amendment rights that are not inconsistent with his [or her] status as a prisoner or with the legitimate penological objectives of the corrections system."); see also Salahuddin v. Coughlin, 993 F.2d 306, 308 (2d Cir. 1993) ("It is well established that prisoners have a constitutional right to participate in congregate religious services.") (citing cases). The task of defining the contours of a prison inmate's free exercise rights requires careful balance of the rights of prison inmates against the legitimate interests of prison officials tasked with maintaining prison security. O'Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S. Ct. 2400, 2404 (1987); Ford, 352 F.3d at 588; Salahuddin v. Coughlin, 993 F.2d at 308. When determining whether an action impinges upon an inmate's First Amendment free exercise right, the inquiry is "one of reasonableness, taking into account whether the particular [act] affecting [the] right. . . is 'reasonably related to legitimate penological interests.'" Benjamin v. Coughlin, 905 F.2d 571, 574, cert. denied, 498 U.S. 951, 111 S. Ct. 372 (2d Cir. 1990) (quoting Turner v. Safely, 482 U.S. 78, 89, 107 S. Ct. 2254, 2261 (1987)); Ford, 352 F.3d at 588; see also Farid v. Smith, 850 F.2d 917, 925 (2d Cir. 1988) (citing, inter alia, O'Lone, 482 U.S. at 348, 107 S. Ct. at 2404).

The Second Circuit has yet to decide the appropriate standard to be applied where, as here, a plaintiff is involuntarily civilly committed in a secure treatment facility sharing many of the concerns and characteristics of prison facilities; as was recently noted by one of my colleagues, the issue appears to be one that has divided courts. Kalwasinski v. Maxymillain, No. 9:09-CV-0214, 2010 WL 5620908, at * 3 (N.D.N.Y. Dec. 23, 2010) (Lowe, M.J.) (citing cases), report and recommendation adopted, 2011 WL 195648 (N.D.N.Y. 2011) (Hurd, J.); compare Carey, 2010 WL 2519121, at *3 (applying substantial burden/compelling interest test to CNYPC patient's free exercise claim) and Pratt, 631 F. Supp. 2d at 198 (same), with Lombardo v. Holanchock, No. 07 Civ. 8674, 2008 WL 2543573, at *6 (S.D.N.Y. June 25, 2008) (applying legitimate penological purpose test to Mid-Hudson Psychiatric Center patient's free exercise claim) and Abdul-Matiyn v. Pataki, No. 9:06-CV-1503, 2008 WL 974409, at *12 (N.D.N.Y. Apr. 8, 2008) (applying legitimate penological purpose test to CNYPC patient's free exercise claim) (Hurd, J.). Resolution of this question of law is unnecessary in this case, however, since I have concluded that under even the more rigorous test, plaintiff's Free Exercise claim would fail.

As an initial matter, a plaintiff challenging a prison regulation on Free Exercise grounds must show that it substantially burdens a sincerely held religious belief.²⁴Salahuddin v. Goord, 467 F.3d at 274-75. Defendants have now shown that the program materials at issue would not impose a substantial burden on plaintiff's beliefs, whether they be grounded in atheism or Buddhism, since there is nothing in the SOTP that requires a participant to engage in the practice of religion, or perform any exercises that demand a belief in spirituality, and there is no evidence in the record that plaintiff is otherwise required or forbidden to perform any activity that is offensive to his own religious beliefs. To the contrary, defendants have shown that with respect to those activities that mention religion and/or spirituality, plaintiff may freely choose not to participate.

24 Here, defendants seem to take issue with plaintiff's ability to make this required showing with respect to those programs that he challenges as incorporating Buddhism since he is now a practicing Buddhist. According to a recent statement made by plaintiff, he meditates and performs yoga daily and also follows a regimen of "mindfulness", apparently stemming from his current Buddhist beliefs. Maxymillian Decl. (Dkt. No. 38-2) ¶ 56. As a result, at least with respect to those group therapy modalities that he claims incorporate Buddhism, it seems clear that given his current religious practices plaintiff cannot now claim that those programs impose a substantial burden on his beliefs.

Even if that were not the case, however, plaintiff's Free Exercise claim would fail as application of the Turner factors favors the defendants in this action. In considering whether the governmental action serves a legitimate interest, the Second Circuit has characterized "the first 'factor' [as] more properly labeled an 'element' because it is not simply a consideration to be weighed but rather an essential requirement." Salahuddin v. Goord, 467 F.3d at 274 (citing and quoting O'Lone, 482 U.S. at 350, 107 S. Ct. 2400 ("[A] regulation must have a logical connection to legitimate governmental interests....")).

In its decision in McKune v. Lile, 536 U.S. 24, 35-36, 122, S. Ct. 2017, 2026 (2002), the Supreme Court recognized the serious threat presented by sex offenders released into the community and the high rate of recidivism, attributable to that segment, noting that "[w]hen convicted sex offenders reenter society, they are much more likely than any other type of offender to be re-arrested for a new rape or sexual assault[,]" adding that "[s]tates thus have a vital interest in rehabilitating convicted sex offenders. McKune, 536 U.S. at 33, 122 S. Ct. at 2024 (citations omitted); see also Hobbs v. Westchester Cnty., 397 F.3d 133, 150 (2d Cir.) (finding protection of physical and social well being of minors a compelling interest when evaluating a First Amendment challenge to the ban on the issuance of permits for solicitation, performance or similar activity on county property to persons known to have been convicted of sex offenses against minors, where the presentation would entice children to congregate), cert. denied, 546 U.S. 815, 126 S. Ct. 340 (2005); Stevenson v. State and Local Police Agencies, 42 F. Supp. 2d 229, 223 (W.D.N.Y. 1999) (finding that with respect to sex offender registration legislation that "[o]bviously the state has a strong interest in ensuring the safety and well-being of its citizens").

The evidence now before the court shows that the group therapy programs are part of a regimen designed to rehabilitate repeat sex offenders in order to reduce recidivism and protect the community upon their release; these are governmental interests that the court finds to be indisputably compelling. Defendants have likewise established a rational connection between the use of the materials at issue and the rehabilitation of the SOTP program participants. Defendants have produced uncontroverted evidence that the treatment services are designed to enhance an individual's treatment engagement and develop the skills necessary to avoid future anti-social behavior. They have shown that the materials they use are based upon methods that are consistent with best known practices in the field of sex offender treatment, and that as new research evolves the SOTP adapts its programs accordingly, incorporating new groups and eliminating others as appropriate. In addition, defendants have come forward with evidence that religion and spirituality may play a role in some people's recovery, and that relaxation and spirituality have proven to be effective therapeutic tools for persons with personality disorders, such as sex offenders, by teaching them coping skills and how to regulate their emotions, and ultimately to avoid offending behaviors. See Maxymillian Decl. (Dkt. No. 38-2) ¶¶ 35, 53.

In sum, after careful review of the record before the court, I have found no evidence that anything encompassed within the SOTP group therapy modalities that plaintiff challenges in this action imposes a substantial burden upon his religious beliefs, whether that is as an atheist or a Buddhist. Moreover, the evidence presented establishes that the occasional identification of religion and/or spirituality as a potential tool for achieving a socially acceptable lifestyle is reasonably related to the compelling governmental interests of reducing recidivism and protecting society from repeat sex offenders. See Bush v. Goord, No. 03-CV-759S, 2009 WL 790358, at *3-4 (W.D.N.Y. Mar. 25, 2009) (finding a rational connection between the sex offender counseling program ("SOCP"), including its requirement that prisoners take responsibility for their crimes or face the loss of good time credits for non-participation, and the DOCS' interest in rehabilitating prisoners, and that the primary purpose of the SOCP, which is to reduce the likelihood that convicted sex offenders and other inmates with histories of sexual offending behavior will reoffend, by helping them to gain control of the chain of behaviors that leads to sexual offending).

For all of the foregoing reasons, I have concluded that based upon the record before the court no reasonable juror could find in favor of plaintiff on his Free Exercise claim, and therefore recommend that defendants' motion be granted as to that cause of action as well.

G. The Intervenor's Motion

Jeremy Zielinski, who identifies himself as a member and supporter of the New York chapter of Reform Sex Offender Laws ("RSOL"), an organization devoted to reforming sexual offense laws and ending biases and stereotypes against those labeled as sex offenders, has moved to intervene in this action for the limited purpose of seeking access to the documents filed under seal, and to vacate the court's order granting defendants leave to file the SOTP program materials under seal, asserting his own as well as the public's First Amendment right to access judicial proceedings. See Dkt. Nos. 43. Defendants' have opposed that motion. Dkt. No. 45.

As was recognized by the Second Circuit in Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006), the right of public access to the federal courts, including judicial records, is firmly rooted in our nation's history and gives rise to a presumption of openness in judicial proceedings. Id. at 119; see also Gambale v. Deutsche Bank, 377 F.3d 133, 140 (2d Cir. 2004). This presumption of public access serves twin purposes, promoting accountability of the courts and fostering public confidence in the administration of justice. Id. (quoting United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)). In deciding whether to seal presumptively public judicial documents a court should weigh the importance of the presumption of public access, depending upon the type of judicial function at issue, against the interests sought to be protected by sealing. Securities and Exchange Comm'n v. Oakford Corp., No. 00 Civ. 2426, 2001 WL 266996, at* 1 (S.D.N.Y. Mar. 16, 2001) (citing, inter alia, Amodeo, 71 F.3d at 1047-51. Additionally,

[t]he motives of the party invoking the presumption of public access, and those of the party opposing such access, may be considered insofar as they bear on the veracity of the parties' asserted positions. In all events, "a judge must carefully and skeptically review sealing requests to insure that there really is an extraordinary circumstance or compelling need."

Encyclopedia Brown Prods., Ltd. v. Home Box Office, Inc., 26 F. Supp. 2d 606, 610-11 (S.D.N.Y.1998) (citing Amodeo and quoting In re Orion Pictures Corp., 21 F.3d 24, 27 (2d Cir.1994)).²⁵ By its very nature, the sealing of some or all of the court's records in a case "impose[s] a substantial burden on the court[ ] and the judge[ ] to whom [it] is assigned." Standard Chartered Bank Int's (Americas) Ltd. v. Calvo, 757 F. Supp. 2d 258, 260 (S.D.N.Y. Jun. 16, 2010).

25 Rule 83.13 of this court's local rules of practice, which outlines the procedures to be filed when some or all of a case is sealed, provides, in relevant part,

[a] party seeking to have a document . . . or entire case sealed shall submit an application, under seal, setting forth the reason(s) why the document, party or entire case should be sealed, together with a proposed order for the assigned judge's approval.

N.D.N.Y.L.R. 83.13.

Although not mentioned in proposed intervenor Zielinski's submission on the pending motion, he is familiar to this court, having recently appeared on a petition brought by a United States Probation Officer to modify the conditions of Zielinski's supervised release.²⁶,²⁷United States v. Zielinski, No. 1:11-cr-0533 (N.D.N.Y. filed Nov. 14, 2011). It appears from court records that on June 28, 2006 Zielinski pleaded guilty to federal charges of conspiracy to commit access fraud in violation of 18 U.S.C. § 1028(a)(7). See id. at Dkt. No. 1. Subsequently, on or about August 30, 2006, Zielinski was convicted of charges contained in a 56-count indictment in Warren County, New York, including charges of promoting a sexual performance of a child, possessing a sexual performance by a child, and attempted dissemination of indecent material to a minor. See id. at Dkt. No. 3. As a result of that conviction, Zielinski was classified by New York State as a Level 2 Sex Offender. After conducting a hearing on the petition, the court sentenced Zielinski to six (6) months of home confinement for his violation of the terms of his pre-existing supervised release. See id. at Dkt. No. 39, p. 2. The court also modified the terms and conditions of Zielinski's supervised release by 1) extending the supervised release term for a period of 24 months following his sentence on the violation, and 2) by imposing special conditions of supervised release related to his state court convictions. See id. at Dkt. No. 39, p. 2. Those special conditions included a requirement that Zielinski participate in a mental health program, including participation in a treatment program for sexual disorders. See id. at Dkt. No. 39. n. 6.

26 The judicial documents and official court records associated with those proceedings, as publically available documents, are properly considered by the court and entitled to judicial notice in connection with this proceeding. See Federal Rules of Evidence 201 and 1005; see also, Wilson v. Limited Brands, Inc., No. 08 CV 3431, 2009 WL 1069165 at *1 n. 1 (S.D.N.Y. April 17, 2009).

27 Zielinski, who was formerly a New York State prison inmate, has also previously filed at least four civil rights actions in this court relating to, among other things, the conditions of his confinement. See Zielinski v. Fischer, et al., No. 9:09-CV-1444 (N.D.N.Y. filed Dec. 29, 2009); Zielinski v Rabsatt, et al., No. 9:10-CV-0246 (N.D.N.Y. filed Mar. 3, 2010); Zielinski v. Fischer, et al., No. 9:10-CV-1014 (N.D.N.Y. filed Aug. 23, 2010); Zielinski v. Defreest, et al., No. 6:11-CV01359 (N.D.N.Y. filed Nov. 16, 2011). All of these matters are now closed.

Zielinski appealed that decision, and on February 24, 2012 filed a motion to stay his sentence pending appeal; that application was denied. On March 28, 2012, just seven days before filing his current motion to intervene, Zielinski filed a second motion to stay his sentence pending appeal, arguing, among other things, that the mental health program counseling he is required to attend is imposing a religious viewpoint upon him in violation of his First Amendment rights. See United States v. Zielinski, No. 1:11-cr-0533, Dkt. No. 33. In his decision and order, dated May 8, 2012, denying Zielinski's second motion to stay his sentence, District Judge McAvoy noted that "[Zielinski's] constitutional challenge to the specific mental health treatment program he has been assigned might be the basis for a modification petition (and which would require a separate hearing exploring the nature of the mental health treatment program), but it does not present a 'close call' or an issue that could have been decided the other way on whether the Court had the authority to modify the terms of his supervised release requiring that he attend mental health counseling." Id. at Dkt. No. 39, pp. 6-7. The record does not reveal whether the sex offender treatment program in which Zielinski is required to participate utilizes the SOTP group therapy materials at issue in this case.

In opposing Zielinski's motion, defendants have submitted the declarations of SOTP Director Terry Maxymillian, Psy.D., and of Naomi Freeman, Ph.D., the Director of the OMH Bureau of Sex Offender Evaluation and Treatment. Dkt. Nos. 45 and 45-1. In these submissions, defendants reiterate the dual purpose of the CNYPC-SOTP, and assert that disclosure of the SOTP materials to residents of that program would undermine its critical therapeutic objectives. See id. More specifically, Dr. Freeman, who is responsible for oversight and management of the personnel and facilities engaged in the civil management of sex offenders as mandated by MHL Article 10, states that "[t]o maximize the potential effectiveness of [the SOTP group therapy], it is of paramount importance that precautions are taken to minimize the likelihood that the program content. . . come into possession of SOTP residents in advance of their actual participation in the programs." Freeman Decl. (Dkt. No. 45-1) ¶ 10. Dr. Freeman explains that the group therapy protocols are not intended to be self-study, and that attempts by residents to "treat themselves" by working on the materials outside of the program, before they are clinically ready to do so, would undermine efforts of staff to engage residents in clinical work that is more suited to their current abilities and treatment needs, and interfere with the therapeutic relationship and treatment process. Id. at ¶¶ 11, 13, 15. Dr. Freeman states further that providing access to these group therapy program materials to SOTP residents before clinically appropriate would not only weaken the therapeutic benefits, but place the public at greater risk for sexually reoffending behavior. Id. at ¶ 18.

According to SOTP Director Maxymillian, many SOTP residents have long histories of manipulating people and systems, and, at least initially, have very little motivation to change their views on sexually offending behaviors. Maxymillian Decl. (Dkt. No. 45) ¶ 16. Maxymillian further explains that if these materials were made available to SOTP participants it would open the door to the manipulation of the therapy groups and other participants in the groups. Id. at ¶¶ 13, 16. There is also a risk that the evaluative process of these individuals would have to be extended to compensate for potential false positives created by advance access to program materials, and thus prolong the time it takes for residents to successfully complete programs, or for staff to evaluate whether they have done so. Id. at ¶ 18. Additionally, because the possession of program materials by SOTP residents is considered contraband, disclosure would also require the CNYPC to become "hyper- vigilant" in policing its possession. Id. at ¶ 14. These detrimental effects would extend beyond CNYPC-SOTP to other sex offender treatment programs throughout New York State, and could very well undermine the purposes underlying MHL Article 10. Id. at ¶ 20.

In the face of the evidence offered from these doctors, who are experienced OMH executives, Zielinski has offered nothing but conjecture to suggest that their concerns and the anticipated risks of disclosure are unfounded. I have considered proposed intervenor Zielinski's personal interest in the program materials at issue, and it appears that his current motion may be for the purpose of obtaining discovery related to the criminal matter that he has pending in this District, a practice the court cannot condone. Indeed, it seems clear that the disclosure of the program materials at issue in this case to Zielinski, a convicted sex offender who is required to participate in sex offender treatment, would directly implicate the very concerns that justified the court's decision to allow defendants to file them under seal in the first place.

Having weighed the competing considerations, I have determined that sealing of the SOTP program materials in this case remains warranted due to the potential detrimental effect that disclosure of the materials to convicted sex offenders may have on the SOTP program goal to rehabilitate them. Balancing the public's right of access to court proceedings, I have narrowly tailored the order so as to allow the filing of only the complete set of SOTP program materials under seal, and I note that the public otherwise retains full access to this matter, including SOTP Director Maxymillian's declarations and all other submissions filed by defendants in support of their motion for summary judgment, as well as this court's report and recommendation, which explains in detail the basis for the conclusion that the record before the court does not support plaintiff's First Amendment claims.

For these reasons, I will deny the proposed intervenor's motion.

IV. SUMMARY AND RECOMMENDATION

Though raising potentially significant First Amendment challenges to the use of certain group therapy programs in the SOTP, having now had the opportunity to review the entirety of the program materials, it seems clear that plaintiff's claims cannot be sustained based upon the record before the court. While some of the group therapy modalities at issue at times make mention of religion or spirituality, there is nothing in those materials that either overtly or subtly coerces SOTP participants to engage in religious or spiritual practices, thus dispelling plaintiff's Establishment Clause claim. With regard to plaintiff's Free Exercise claim, the record is lacking any evidence demonstrating that anything included in the SOTP program materials substantially burdens plaintiff's sincere religious beliefs. Moreover, defendants have shown that the references to religion and spirituality as potential tools to assist SOTP participants in developing a socially acceptable lifestyle is reasonably related to the State's compelling interest in rehabilitating sex offenders in order to reduce recidivism and protect the community from repeat offenses. Considering the undisputed evidence before the court, I have thus concluded that the defendants have now met their burden to establish the lack of material issues of fact for trial, and therefore recommend that their motion be granted.

With respect to proposed intervenor Zielinski's motion to intervene for the purposes of unsealing the SOTP program materials, I have found that the State's interests in maintaining these records under seal in order to ensure the integrity of the program outweighs Zielinski's interest in disclosure, and have carefully crafted my sealing order to protect the public's First Amendment right to access to judicial proceedings. Accordingly, Zielinski's motion will be denied.

For all of the foregoing reasons, it is hereby respectfully RECOMMENDED, that defendants' motion for summary judgment, Dkt. No. 38, be GRANTED, and that judgment be entered in favor of the defendants in this action dismissing all remaining claims in the action.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).

It is hereby further

ORDERED that proposed intervenor's motion, Dkt. No. 43, is DENIED; and it is further

ORDERED that the clerk of the court serve a copy of this report, recommendation and order upon the parties and the proposed intervenor in accordance with this court's local rules. Dated: July 30, 2012

Syracuse, NY

______________________

David E. Peebles

U.S. Magistrate Judge