Pelichet v. Gordon ( 2019 )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION DARRYL PELICHET, BONN WASHINGTON, JOSHUA RAGLAND, DARIUS BICKERSTAFF, through his Case No. 18-cv-11385 Guardian MARY BICKERSTAFF, and MICHIGAN PROTECTION AND Paul D. Borman ADVOCACY SERVICES, INC. (MPAS), United States District Judge Plaintiffs, Anthony P. Patti United States Magistrate Judge ROBERT GORDON, in his official capacity, LISA MEDOFF, individually and in her official capacity, MARY CLAIRE SOLKY, individually and in her official capacity, LAURIE ALBERT, individually and in her official capacity, HANUMAIAH BANDLA, individually and in his official capacity, CHARLES STERN, individually, ARUNA BAVINENI, individually and in her official capacity, SHARON DODD- KIMMEY, individually and in her official capacity, CRAIG LEMMEN, individually and in his official capacity, KIMBERLY KULP-OSTERLAND, individually and in her official capacity, LISA MARQUIS, individually and in her official capacity, MARTHA SMITH, individually and in her official capacity, DAVE BARRY, individually and in his official capacity, Robert Gordon became Director of MDHHS in January 2019 and is automatically substituted as Defendant for former Director and Defendant Nick Lyon. Nick Lyon is the former Director of MDHHS and was Director of the Michigan Department of Community Health from September 2014 until April 2015, when that agency merged into MDHHS. KELLI SCHAEFER, individually and in her official capacity, JOE CORSO, individually and in his official capacity, DIANE HEISEL, individually and in her official capacity, HEGIRA PROGRAMS, INC., NEW CENTER COMMUNITY SERVICES, INC., CARELINK NETWORK, INC., BEHAVIORAL HEALTH PROFESSIONALS, INC., and MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES (MDHHS), Defendants. / OPINION AND ORDER RULING ON MOTIONS TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6): (1) DENYING DEFENDANT ROBERT GORDON, IN HIS OFFICIAL CAPACITY, MOTION TO DISMISS (2) GRANTING MDHHS MANAGEMENT EMPLOYEE DEFENDANTS’ SOLKY, ALBERT, BANDLA, MEDOFF MOTION TO DISMISS IN THEIR OFFICIAL AND INDIVIDUAL CAPACITY (3) DENYING NGRI COMMITTEE MEMBERS’ MOTION TO DISMISS IN THEIR OFFICIAL AND INDIVIDUAL CAPACITY: DODD- KIMMEY, LEMMEN, KULP-OLSTERLAND, MARQUIS, BARRY, SCHAEFFER, CORSO, HEISEL (4) DENYING DEFENDANT CHARLES STERN, Ph.D.’s MOTION TO DISMISS IN HIS INDIVIDUAL CAPACITY, EXCEPT FOR THE EIGHTH AMENDMENT CLAIM WHICH IS DISMISSED; and (5) GRANTING DEFENDANT LISA MEDOFF, Ph.D.’s MOTION TO DISMISS IN HER OFFICIAL AND INDIVIDUAL CAPACITY (6) GRANTING MDHHS MOTION TO DISMISS DEFENDANT DR. ARUNA BAVINENI IN HER OFFICIAL AND INDIVIDUAL CAPACITY I. INTRODUCTION On September 14, 2018, the Plaintiffs filed a 76-page unpaginated First Amended Complaint (“FAC”), and attached 20 exhibits comprising an additional 240 pages. (ECF #44, PgID 872, et seq.) The three count FAC alleges (1) 42 U.S.C. § 1983 violations of the four individual Plaintiffs’ “civil rights secured by the Fourth, Eighth and Fourteenth Amendments to the United States Constitution, (2) violations of Title I] of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seg., and (3) violations of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 et seq.” (ECF #44, PgID 875.) The FAC’s principal claim of “unconstitutional and discriminatory policies and practices designed to segregate those with disabilities from the rest of society,” (id. at PgID 876) is based upon the fact that in 2003, Janet Olszewski, former director of the Michigan Department of Community Health, n/k/a the Michigan Department of Health and Human Services (“MDHHS”), issued Administrative Directive 10-C- 1050-AD (hereinafter “Olszewski Directive”) mandating “that all recommendations to the probate court for release from hospitalization . . . under the legal status of ‘not guilty by reason of insanity’ [“NGRI”] be reviewed by the NGRI Committee prior to filing or court appearance,” and that “any delay in referring or filing necessary papers in a timely manner that would result in not receiving the order, will be considered a violation of this policy.” (ECF #44, PgID 876, 95.) Plaintiffs interpret the Olszewski Directive to state that because “a civil commitment order will not be renewed if a petition is not filed to renew it, a treatment provider that determines that a person adjudged NGRI does not currently satisfy the statutory or constitutional requirements for involuntary civil commitment, would violate the Policy by declining to petition the Probate Court for an additional year of involuntary hospitalization.” (/d. at 96.) Plaintiffs’ FAC Complaint, (7) asserts that the Olszewski Directive “effectively ordered that all patients at Michigan’s regional psychiatric hospitals and community mental health service providers to automatically file a petition in Probate Court for one year of involuntary hospitalization for every ‘Not Guilty by Reason of Insanity’ (“NGRI’) patient, every year, regardless of whether the patient’s treating physicians believed that the patient continued to satisfy statutory or constitutional requirements for involuntary civil commitment.” (/d. at PgID 876-77, J7.) Plaintiffs’ FAC 98 states that the Olszewski Policy is still in effect today. Plaintiffs Darryl Pelichet, Bonn Washington, Joshua Ragland, and Darius Bickerstaff had all been charged with assaultive criminal offenses,” adjudicated * Darryl Pelichet: | Schizophrenia disorder; assaulting a police officer; tested positive for marijuana. (FAC, ECF #44, PgID 890-92.) Joshua Ragland: Suicidal, sitting on an overpass bridge guardrail; resisted/obstructed rescuing police officer, feloniously assaulted officer. Ud. at PgID 901.) Occasional beer, once smoked marijuana. (/d.) NGRI in Michigan state courts, and then civilly committed to the Walter P. Reuther Psychiatric Hospital (“WPRH”). They have all, at various times, been released from confinement to live in the community subject to hospital oversight as inpatients under Authorized Leave Status (“ALS”) contracts, wherein they agreed to terms such as drug testing and curfews. The duration of their civil commitment had been extended one or more times pursuant to petitions to Probate Courts by MDHHS hospitals seeking continuing Hospitalization Treatment Orders (““HTOs”), which were usually granted, after hearings, at which Plaintiffs were represented by counsel. The present-day status of their specific cases otherwise differ. Pelichet, Ragland, and Washington are no longer committed within the MDHHS structure. Bickerstaff remains an NGRI inpatient, but was on ALS status as of March 20, 2019.° Bonn Washington: Schizophrenia disorder; assaulted Sheriff, 2005. dd. at PgID 905.) Positive for marijuana after every release. (/d. 907.) Darius Bickerstaff; Schizophrenia bipolar disorder; 2014 felonious assault against grandmother’s boyfriend. (/d. at PgID 907-09.) Marijuana is a federal statutorily designated Schedule I controlled substance. 21 USS.C. § 812. 3 Since Plaintiffs filed the First Amended Complaint, Plaintiff Bonn Washington’s status with the state psychiatric treatment system has changed. Washington is currently receiving treatment under an Alternative Treatment Order (ATO), meaning he no longer is subject to a Hospitalization Treatment Order, and does not have NGRI or Walter P. Reuther Psychiatric Hospital (““WPRH”) inpatient status. (Hr’g Tr., Mar. 20, 2019, Defs. Stern and Medoff Mots. to Dismiss, ECF #83, PgID 2286, 30:17-19.) Plaintiffs contend that their rights were violated by Defendants’ policy/practice of seeking to renew Plaintiffs’ commitment as NGRI patients by filing annual petitions with state Probate Courts for continuing one-year Hospital Treatment Orders as a matter of course, which, after hearings were most times granted by those courts. Plaintiffs acknowledge that they were represented by court-appointed counsel at those court hearings. Further, those hearings did not always result in court orders for continuing hospitalization. Some resulted in a verdict denying continuing hospitalization and therefore release from civil confinement. Specifically, Plaintiffs allege that the MDHHS petitions for continuing one- year Hospital Treatment Orders were filed by Defendants regardless of whether Plaintiffs continued to meet the definition of a “person requiring treatment” under M.C.L. § 330.1401 (“Section 401”), the criteria for continuing hospitalization. M.C.L. § 330.1476(2). Plaintiffs were aware of their right to contest these HTO petitions in Probate Court. A separate complaint allegation relates to Alternative Leave Status (ALS) -- NGRI Committee conditional releases from hospital confinement to community programs. (FAC ECF #44, 9183-86, PgID 915-16.) Plaintiffs aver that they were denied procedural due process each time their ALS authorized leave had been revoked for alleged contract violations by the patients because they had not been provided with a Michigan statutorily mandated notice form that requires MDHHS to provide them, post revocation of ALS status, of their right to contest, by appeal, the grounds for re-hospitalization. FAC 9165.4 Defendants concede that persons returned to hospitalization after authorized leave in excess of 10 days, never received notice or forms informing them of their right to appeal their return. II. PROCEDURAL HISTORY On May 2, 2018, Plaintiffs filed their Complaint. (ECF #1.) On June 20, 2018, Dr. Stern filed his Answer and Affirmative Defenses. (ECF #20.) On June 29, 2018, Dr. Medoff filed her Answer and Affirmative Defenses. (ECF #22.) The Michigan Department of Health and Human Services (“MDHHS”) Defendants filed a Motion to Dismiss on June 29, 2018. (ECF #29.) On July 9, 2018, Dr. Charles Stern filed his First Amended Affirmative Defenses. (ECF #26.) On July 11, 2018, Dr. Lisa Medoff filed Amended and/or Special Affirmative Defenses. (ECF #28.) On August 4 M.C.L. § 330.1408(3), a section in Michigan’s Mental Health Code, states: “An opportunity for appeal, and notice of that opportunity, shall be provided to an individual who objects to being returned from any authorized leave in excess of 10 days.” Further, M.C.L. § 330.1537(3) provides that: “An opportunity for appeal shall be provided to any individual returned over his or her objection from any authorized leave in excess of 10 days, and the individual shall be notified of his or her right to appeal.” State Court Administrative Office (““SCAO”) Form PCM 233, “Notice of Right to Appeal Return and Appeal of Return from Authorized Leave,” references these two sections of the Mental Health Code (as well as M.C.R. 5.743, M.C.R. 5.743a, and M.C.R. 5.743b, which all address appeal rights post-readmission) and requires compliance with the statutes. 3, 2018, Plaintiffs filed a Motion for Leave to File the First Amended Complaint (ECF #31) to add parties, which was granted on September 13, 2018. Plaintiffs filed the First Amended Complaint on September 14, 2018. (ECF #44.) The three-count First Amended Complaint alleges: Count I Deprivation of Rights Guaranteed by the Constitutions and Laws of the United States and the State of Michigan — Procedural Due Process Violations under the Fourteenth Amendment, Substantive Due Process under the Fourteenth Amendment, Equal Protection Burdening Fundamental Rights under the Fourteenth Amendment, and Cruel and Unusual Punishment (All Defendants) CountII Deprivation of Rights Guaranteed by Title IJ of the Americans with Disabilities Act, 42 U.S.C. § 12131, et seg., (Defendant MDHHS, MDHHS Contractor and Sub-Contractor Defendants, and Defendant MDHHS Employees (including Robert Gordon) in their Official Capacities) Count III Violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, (Defendant MDHHS, CMH Contractor and Sub-Contractor Defendants, and Defendant MDHHS Employees in their Official Capacities) Plaintiff Bickerstaff also seeks injunctive relief.° Defendants® have filed three separate Motions to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). > The Court assumes that due to Plaintiff Washington’s recent release from involuntary civil commitment, Plaintiff Bickerstaff, alone, can seek injunctive relief. ® Several additional named Defendants, which are allegedly MDHHS independent contractors and sub-contractors that provide community housing and/or adult foster care for WPRH NGRI patients released on ALS contracts: Hegira Programs, Inc. Defendant Michigan Department of Health and Human Services (“MDHHS”) and several of its employees, named in their individual and official capacities, filed a Motion to Dismiss on October 12, 2018 (ECF #56) (“MDHHS Motion”). The Parties to the MDHHS Motion are: Defendant Robert Gordon (official capacity only); the following in both their official and individual capacities: Mary Solky (Hospital Director at Walter P. Reuther Psychiatric Hospital (“WPRH”)); Dr. Laurie Albert (Director of Social Work at WPRH); Dr. Hanumaiah Bandla (Chief of Clinical Affairs at WPRH); Dr. Aruna Bavineni (WPRH psychiatrist); Sharon Dodd- Kimmey; Craig Lemmen; Kimberly Kulp-Olsterland; Lisa Marquis; Martha Smith; Dave Barry; Kelli Schaefer; Diane Heisel; and Joe Corso (collectively, “MDHHS Defendants,” and referred to as a subset of Defendants herein as “MDHHS Employee Defendants” or “MDHHS Defendants”). Dodd-Kimmey, Lemmen, Kulp- Olsterland, Marquis, Smith, Barry, Schaefer, Heisel, and Corso are members of the (“Hegira”); Carelink Network, Inc. (“Carelink”); Behavioral Health Professionals, Inc. (“Behavioral Health”); and New Center Community Services, Inc. (“New Center”), are not parties to these motions. For clarity, these Defendants are herein referred to as “Community Caretakers.” Plaintiffs allege that MDHHS policy required Plaintiffs’ community housing and/or adult foster care providers to file petitions for Hospitalization Treatment Orders. Defendants Carelink and Behavioral Health were dismissed by stipulation of the Parties on November 14, 2018. (ECF #68.) Defendant Hegira answered the original Complaint (ECF #17, 18, June 6, 2018) but has not filed a responsive pleading to the FAC. Defendant New Center was not served with a summons. NGRI Committee at the Center for Forensic Psychiatry (“CFP”) (referred to as a subset of MDHHS Defendants herein as “NGRI Committee Defendants”). (FAC, ECF #31-1,