Eighth Amendment violations due to inhumane prison conditions and lack of treatment; inmate suicide

Palakovic v. Wetzel, 854 F.3d 209 (3rd Cir. 2017)

Third Circuit reverses the trial court’s grant of defendants’ motions to dismiss claims brought by estate of inmate who committed suicide in prison, holding that the district court erred by (1) improperly applying the guidelines for determining the liability of facility staff for an inmate’s suicide, and (2) improperly denying claims that the prison was liable for subjecting the inmate to inhumane conditions and being deliberately indifferent to his documented mental illness, separate and apart from his suicide.

Found in DMHL Volume 36, Issue 2

Exhaustion doctrine—modification when claimant compromised by mental illness

Weiss v. Barribeau, et al., 853 F.3d 873 (7th Cir. 2017)

Seventh Circuit reverses the district court’s grant of summary judgment to prison officials on inmate’s Eighth Amendment claim, on the grounds of inmate’s failure to exhaust administrative remedies, finding that inmate’s capacity to make required timely administrative complaints and appeals was compromised by his mental illness and by the actions of prison officials in response to that illness.

Found in DMHL Volume 36, Issue 2

Eighth Amendment/Conditions of Confinement/Deliberate Indifference

Rasho v. Elyea, No. 14-1902, 2017 U.S. App. LEXIS 3976 (7th Cir. Mar. 7, 2017)

Eighth Amendment/Conditions of Confinement/Deliberate Indifference: Seventh Circuit reverses grant of summary judgment to contract psychiatrists in state prison system where inmate with serious mental illness alleges that psychiatrists effected his transfer out of a special mental health treatment unit in retaliation for the inmate’s grievances against staff, resulting in denial of effective treatment.

Found in DMHL Volume 36, Issue 1

Qualified Immunity, Duty of Care, Jails and Prisons

Bays v. Montmorency Cty., 874 F.3d 264 (6th Cir. 2017)

Sixth Circuit ruled that there is a clearly established Fourteenth Amendment right to sufficient treatment for a serious medical problem and upheld a district court’s denial of qualified immunity to a jail nurse where there was evidence that the nurse acted with deliberate indifference to an inmate’s serious mental illness.

Found in DMHL Volume 37, Issue 1

Two-Year Ban on Visits to Inmates with Two Substance-Abuse Violations Upheld

Overton v. Bazzetta, 123 S. Ct. 2162 (2003)

The Supreme Court upheld a Michigan prison regulation that prisoners with two substance abuse violations could not receive any visitors except attorneys and members of the clergy for two years.  In a unanimous decision, the Court noted drug smuggling and drug use in prison are intractable problems and asserted withdrawing visitation privileges is a proper and even necessary management technique to induce compliance with the rules governing inmate behavior.  The Court did add it might reach a different conclusion if the ban was for a much longer period of time, treated as a de facto permanent ban, or applied in an arbitrary manner to a particular inmate...

Found in DMHL Volume 23 Issue 1

Privatization by Puerto Rico of Prison Inmates' Medical and Mental Health Services Upheld for the Time Being; Ruling Not Disturbed

Feliciano v. Rullan, 378 F.3d 42 (1st Cir. 2004)

Since the 1970s, class action lawsuits have been brought against many states challenging the medical and mental health care provided in their correctional systems.  In part because many of these lawsuits deeply enmeshed the federal courts in the supervision of prisons and jails for an extended period of time, Congress enacted the Prison Litigation Reform Act (PLRA) in 1996 to curb the involvement of the federal courts in day-to-day prison  management...

Found in DMHL Volume 24 Issue 2

Employee Who Was Sexually Assaulted at a Correctional Facility for Inmates with Psychiatric Problems Can Only Turn to Workers' Compensation for Recovery

Gilbert v. Commonwealth,  No. 03-199 (Va. Cir. Ct. June 3, 2004)

In general, when employees are injured in the course of work, they must turn to a state-run workers' compensation plan for recovery. These plans are intended to ensure compensation in a quick and reliable manner and do not require employees to show that the employer was at fault in connection with the injury. At the same time, the worker's compensation plan also places limitations on the size of the damages that can be recovered...

Found in DMHL Volume 24 Issue 1

Lawsuit Can Continue that Alleges Inadequate Mental Health Care Contributed to Suicide of Inmate in Virginia Maximum Security Prison

Simmons v. Johnson, No. 7:05 CV 00053, 2005 WL 2671537 (W.D. Va. Oct. 20, 2005)

The United States Supreme Court, in Estelle v. Gamble, 429 U.S. 97 (1976), established that the Eighth Amendment is violated when prison officials are deliberately indifferent to an inmate's serious illness or injury.  This ruling has been widely interpreted to encompass an inmate's serious mental health needs as well.  When an inmate commits suicide, a lawsuit may be filed that asserts that the inmate's constitutional rights were violated because prison officials failed to provide the requisite adequate mental health services despite knowing of the inmate's mental health needs, and the absence of these services contributed to the inmate's suicide...

Found in DMHL Volume 25 Issue 2

SVP Petition Cannot Be Filed in New York When Respondent Not in Custody for Sex Offense

In the Matter of the State of New York v. Rashid, 16 N.Y.3d 1, 2010 NY LEXIS 3339 (November 23, 2010)

The New York Court of Appeals has upheld the decision of the appellate court dismissing the Attorney General’s petition to commit this respondent under its Sex Offender Management and Treatment Act. Although the respondent had pled guilty to sodomy in 1991, he was incarcerated for robbery at the time the interagency notice was sent by the Department of Corrections that Rashid may be a sex offender. At the time the respondent received notice of the petition, he was in jail for petit larceny. Because the respondent was not subject to state custody or supervision, he was not a detained sex offender at the time the petition was filed for purposes of the Act. The Court also held that the proceedings commenced at the time the Attorney General filed the petition, not at the time notice was provided by the Department of Corrections.

Found in DMHL Volume 30 Issue 3

Ninth Circuit Sets Out Test for Determining When Mental Impairment Tolls Statute of Limitations for Filing Federal Habeas

Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010)

The Ninth Circuit Court of Appeals has established a 2-part test to determine when a prisoner’s mental impairment tolls the one-year statute of limitations for filing a federal habeas corpus petition under the Antiterrorism and Effective Death Penalty Act of 1996. The United States Supreme Court had previously upheld Eleventh Circuit determinations finding that the one-year statute of limitations must be tolled if equitable circumstances exist beyond a prisoner’s control preventing him from filing on time. The prisoner must establish that 1) he has been pursuing his rights diligently, and 2) some extraordinary circumstance stood in his way. Holland v. Florida, 560 U.S. __, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). In determining whether a mental disability constitutes such an extraordinary circumstance, a petitioner must show that the disability severely impaired his ability to meet the filing deadline despite diligent efforts to do so.

In this case, while serving a sentence for other charges, the prisoner was charged with possession of a sharp instrument by a state prisoner and was sentenced to 25 years to life. The prisoner appealed his conviction and after the time expired for a petition for certiorari to the United States Supreme Court, he pursued state habeas proceedings. Thereafter, he filed a late habeas petition in federal court alleging ineffective assistance of counsel. Noting the unusually long sentence, the court appointed counsel to represent him. Counsel argued that the petition should not be dismissed as untimely filed due to the prisoner’s inability to read and write, neurological deficits, borderline to mild mental retardation, concurrent psychosis and lack of assistance available to him. The prisoner’s expert psychologist testified that he had been diagnosed as bipolar with a variety of behavioral and cognitive disorders, and that he could not understand his legal rights sufficiently to make rational choices. The record reflected, however, that the prisoner had prepared a number of administrative and judicial filings, including a pro se habeas petition in 2000 and an administrative complaint regarding medical care in 2001. He had also represented himself pro se at his trial on this charge. The district court denied the late filing finding that his mental capacity was not sufficiently severe to impede his filing of a timely petition based on his second grade reading level and its finding that a jail house lawyer had been available to help with the filing of the petition.

In setting out the standard for review, the Ninth Circuit stated that there must be a causal connection between the petitioner’s mental disability and the ability to file the petition. The Court determined that the relevant question is whether the mental impairment caused the untimely filing and set out the following two-part test:

1. The petitioner must show that the mental impairment was an extraordinary circumstance beyond his control demonstrating an impairment so severe that either

a. The petitioner was unable to rationally or factually personally understand the need to timely file, or
b. The petitioner’s mental state rendered him unable to personally prepare a habeas petition and effectuate its filing.

2. The petitioner must show diligence in pursing claims to the extent he could understand them, but that the mental impairment made it impossible to meet the filing deadline under the totality of the circumstances, including whether there was reasonably available access to assistance.

The Court found that this standard “flows naturally” from the Supreme Court’s rulings concerning competency to stand trial in Dusky v. United States, 362 U.S. 402 (1969); competency to plead in Godinez v. Moran, 509 U.S. 389 (1993);and competency to represent oneself in Indiana v. Edwards, 554 U.S. 164 (2008). In other words, the court must determine whether the petitioner is competent to do what the law requires. In examining the totality of the circumstances, the court:

1. must find that the petitioner has made a non-frivolous showing that he had a severe mental impairment during the filing period that would entitle him to an evidentiary hearing;
2. determine after considering the record whether the petitioner satisfied his burden that he was in fact mentally impaired;
3. determine whether the petitioner’s mental impairment made it impossible to timely file on his own; and
4. consider whether circumstances demonstrate the petitioner was otherwise diligent in attempting to comply with the filing requirements.

The Ninth Circuit remanded the case for the district court to apply the facts of the case to the standard articulated in its decision.

Found in DMHL Volume 30 Issue 5

US Supreme Court Orders California to Reduce Prison Population for Failure to Provide Constitutionally Adequate Treatment for Inmates with Serious Mental Illness


Brown, Governor of California, et al. v. Plata, et al., No. 09-1233, decided May 23, 2011
Slip opinion found at: http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf

In a 5-4 decision written by Justice Kennedy, the United States Supreme Court upheld the decision of a three-judge panel entered under the Prison Litigation Reform Act of 1995 (“PLRA”) ordering California to reduce its prison population by 137.5% of its original design capacity, or by 46,000 prisoners, within two years in order to address severe and unconstitutional conditions related to the delivery of mental health and medical care to California’s 156,000 inmates.

This decision is the result of two consolidated federal class action suits challenging the mental health and medical conditions in California’s prisons. The first, Coleman v. Wilson, 912 F. Supp. 1282 (E.D. Calf. 1995), was filed in 1990 alleging that deplorable mental health care constituted cruel and unusual punishment under the Eighth Amendment. After a 39-day trial, the court found the prisons severely and chronically understaffed with no method for ensuring competence of staff. The prisons failed to implement necessary suicide precautions due to severe understaffing and mentally ill inmates languished for months and years without access to care, suffering severe hallucinations and decompensating to catatonic states. After 12 years, a Special Master appointed to oversee remedial efforts reported that after slow improvement, the status of mental health care was again deteriorating. A rise in the prison population had led to greater demand for care, and existing program space and staffing levels were inadequate to keep pace. In 2006, at the time of trial before the three-judge panel, the suicide rate was approaching one per week with the suicide rate nearly 80% higher than the national average for prison populations. Suicidal inmates were held for prolonged periods in telephone booth-size cages without toilets. Slip Opn. at 11. According to the Special Master, 72.1% of suicides involved “some measure of inadequate assessment, treatment, or intervention, and were therefore most probably foreseeable and/or preventable.” Slip Opn. at 12. In 2007, the rate had risen to 82% and by 2010 there had been no improvement.

A second class action, Plata v. Brown, was filed in 2001, in which California conceded that deficiencies in prison medical care violated the Eighth Amendment. When the State had not complied with the remedial injunction issued, the Court appointed a Receiver to oversee the remedial efforts. Three years later, the Receiver described equally deplorable continuing deficiencies in medical care. In one prison, up to 50 sick inmates were held together in one 12 foot x 20 foot cage up to five hours awaiting treatment. The Coleman and Plata plaintiffs thereupon requested their respective district courts to convene a three-judge panel to order reductions in the prison population.

The Supreme Court held that if a prison deprives inmates of their basic needs for sustenance, including adequate mental health and medical care, courts have a responsibility to remedy the Eighth Amendment violations. Under the PLRA, only a three-judge panel may enter an order imposing a population limit and only after a district court has entered an order for less intrusive relief that has failed after the state has been given reasonable time for compliance. Before doing so, that court must also first consider a range of options, and then find by clear and convincing evidence that crowding is the primary cause of the violations, no other relief will remedy the situation and the relief is narrowly drawn and the least intrusive means to correct the violations. The court must also consider any adverse impact such a population limit will have on public safety and the operation of the criminal justice system. The Supreme Court thus held that the three judge-panel had properly heard evidence of then-current conditions and that no other relief short of imposing a population limit would remedy the situation. California indicates that it is proceeding to implement measures to reduce its prison population, but with the State’s severe budget crisis, it remains to be seen how effective its efforts will be.

Justice Scalia filed a dissenting opinion in which Justice Thomas joined. Justice Alito also filed a dissenting opinion in which Chief Justice Roberts joined.

Found in DMHL Volume 30 Issue 5

Ninth Circuit Authorizes Medication over Objection for Pretrial Detainee on Dangerousness Grounds without Requiring Sell Hearing

United States v. Loughner, 672 F.3d 731 (9th Cir. 2012)

The Ninth Circuit Court of Appeals, in a 2-1 decision issued on March 5, 2012 and amended on May 14, 2012, upheld the ruling of the United States District Court in Arizona, holding that the government may treat a pretrial defendant with serious mental illness with antipsychotic medication over his objection if the inmate is a danger to himself or others. An administrative hearing comporting with the requirements in Harper v. Washington, 494 U.S. 210 (1990), is sufficient without the necessity of the judicial hearing and balancing test set out in Riggins v. Nevada, 504 U.S. 127 (1992) and Sell v. United States, 539 U.S. 166 (2003).

The defendant Jared Lee Loughner is accused of murdering six people, including U.S. District Judge John Roll, and the attempted murder of thirteen others, including Congresswoman Gabrielle Giffords in Tucson, Arizona on January 8, 2011. Loughner was committed to the Bureau of Prisons to determine whether he was competent to stand trial, and based upon the findings of the medical staff at the U.S. Medical Center for Federal Prisoners in Springfield, Missouri(“FMC-Springfield”) that he was not, he was then committed to determine whether he could be restored to competency.

While in custody at FMC-Springfield, Loughner was determined to be a danger to himself or others and the facility conducted an administrative hearing under 28 C.F.R. § 549.46(a) to determine whether he could be involuntarily medicated. A psychiatrist not involved in the defendant’s treatment presided over the hearing that took place in Loughner’s cell. A licensed clinical social worker was assigned as his staff representative. Even though Loughner requested that one of his attorneys appear at the hearing as his “witness,” counsel was not permitted to attend the hearing. Following the hearing, the presiding psychiatrist authorized involuntary medication finding that Loughner, who had been diagnosed with schizophrenia, “had become enraged while being interviewed by his attorney and yelled obscenities; had thrown objects, including plastic chairs and toilet paper; had spat on his attorney, lunged at her, and had to be restrained by staff; and his behavior had been characterized by indications that he was experiencing auditory hallucinations, including inappropriate laughter, poor eye contact, yelling “No!” repeatedly, and covering his ears.” Id. at 737. Loughner was given 24 hours to appeal the decision to the Administrator of the Mental Health Division, which he did. Laced with profanity, Loughner’s appeal was denied.

Upon learning of Loughner’s involuntary medication, his attorneys filed an emergency motion in the district court to enjoin FMC–Springfield from forcibly medicating him, arguing that the involuntary medication violated his substantive due process rights by treating his mental illness with medication without first considering less intrusive measures, and by failing to consider how the medication might implicate his fair trial rights. They also argued that his procedural due process rights as a pretrial detainee had been violated because the hearing should have been held before the court and the specific drug and dosage should have been specified in the hearing.

The district court denied the motion and request for an evidentiary hearing on the grounds that, even though he was a pretrial detainee, Loughner was being medicated on dangerousness grounds and that the Harper standards, not the Riggins and Sell standards, applied. In so deciding, the district court adopted the rationale in United States v. Morgan, 193 F.3d 252 (4th Cir. 1999), holding that dangerousness determinations are to be made by medical professionals and the court’s involvement should be limited to a review for arbitrariness. On appeal to the Ninth Circuit, the Motions Panel granted Loughner a stay, enjoining all involuntary administration of medication pending adjudication of this appeal.

After medication was discontinued, Loughner’s condition drastically deteriorated and he was placed on suicide watch. FMC–Springfield’s psychiatrists then determined that Loughner was a severe danger to himself and administered medication on an emergency basis. Loughner’s attorneys immediately requested the district court to enforce the Ninth Circuit injunction, but the district court refused. FMC–Springfield thereupon conducted a second Harper-style hearing to continue the mediation based on Loughner’s danger to himself. Loughner again requested that his attorney appear as his “witness.” His attorney did not appear but submitted a written statement which contained legal objections to the involuntary medication. In justifying the administration of medication in this report, the presiding psychiatrist noted the deterioration in Loughner’s condition after the administration of antipsychotic medication was discontinued. Many of his most serious symptoms had receded but he “still exhibits a tendency towards motor restlessness and pacing…cries frequently, and expresses intense feelings of guilt.” United States v. Loughner, 672 F.3d at 739. The report also noted Loughner’s current medication regimen and stated that other less intrusive measures would not address Loughner’s fundamental problem.

Loughner’s attorneys filed another emergency motion with the district court to enjoin the administration of the medication which the court again denied on the grounds that the administration of medication “was predicated on the grounds of dangerousness and really has nothing to do with his competency.” Id. at 740. The district court also continued Loughner’s commitment another four months for competency restoration based on his treating psychiatrist’s testimony that he was likely to become competent in the near future.

On appeal, the Ninth Circuit first distinguished between the substantive due process and procedural due process issues presented. It reiterated that the substantive due process clause of the Fourteenth Amendment establishes the definition of the protected constitutional interest, here the liberty interest in being free from unwanted antipsychotic medication, and identifies the conditions under which competing state interests outweigh it. The procedural due process grounds set out the minimum procedures required to determine whether those liberty interests outweigh the government’s interest in overriding them. The Court then conducted an analysis of the Harper, Riggins, Sell and post-Sell decisions.

In Washington v. Harper, the United States Supreme Court reviewed the State’s regulation governing the forcible medication of a convicted prisoner with serious mental illness who posed a serious likelihood of danger to himself, others, or their property. In upholding the Washington regulation, the Supreme Court balanced the prisoner’s interest in avoiding unwanted medical treatment with the State’s penological interest in providing needed treatment to inmates. The Court held that “given the requirements of the prison environment, the Due Process Clause permits the State to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate’s best interest.” Washington v. Harper, 494 U.S. at 227.

In Riggins v. Nevada, the Supreme Court reviewed Nevada’s forced treatment of the defendant during trial. Riggins began taking mellaril prior to the trial, but requested it be stopped during trial because of its effect on his demeanor and his mental state. Following the testimony of three psychiatrists who questioned the need for continued medication during trial, the trial court denied Riggins motion to discontinue the mediation, but gave no rationale for the decision. The Supreme Court held that pretrial detainees possessed at least the same right as the convicted prisoners in Washington v. Harper, and denied it had determined the full constitutional protections required for pretrial detainees in that case. The Court suggested that the prosecution could have prevailed if “the district court had found that treatment with medication was medically appropriate and, considering less intrusive alternatives, essential for the sake of Riggins own safety or the safety of others.” Riggins v. Nevada, 504 U.S. at 135. The Court reversed but set no standards for pretrial detainees because the district court had made no determination related to the need for medication and no findings to support its decision.

In Sell v. United States, the Supreme Court set out the substantive standards for determining when the government may administer antipsychotic drugs involuntarily to restore a criminal defendant to competency to stand trial. The court must first determine “whether there are important government trial related issues at stake; that involuntary medication will significantly further these governmental interests, without causing side effects that will interfere significantly with the defendant’s fair trial rights; that the medication is necessary to further the government’s interests taking into account less intrusive alternatives; and that the administration of the antipsychotic drugs is medically appropriate, i.e., in the defendant’s best medical interest.” Sell v. United States, 539 U.S. at 180-181.

After reviewing the cases decided post-Sell, the Ninth Circuit held that “when the government seeks to medicate a detainee – whether pretrial or post-conviction – on the grounds that he is a danger to himself or others, the government must satisfy the standard set forth in Harper. The Due Process Clause permits the State to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate’s medical interest.” United States v. Loughner, 672 F.3d at 752. The Court then upheld the Bureaus of Prison’s regulation finding that a judicial hearing was unnecessary, stating that medical decisions should be made by medical personnel. Although it questioned the effectiveness of Loughner’s prison representative, it found attorney representation not necessary. The Court also held that a specific medication regimen need not be specified finding that Loughner’s treating psychiatrist must be able to titrate his existing dosages to meet his needs and to change medications as necessary. The Ninth Circuit finally held that should Loughner be restored to competency, his arguments that the antipsychotic medications substantially alter his demeanor and make him unable or unwilling to assist his counsel are issues to be decided at the time of trial.

Found in DMHL Volume 31 Issue 4

Defendant Detained in Mental Health Facility for Restoration to Competency is Prisoner under Prison Litigation Reform Act

Gibson v. City Municipality of New York, 692 F.3d 198 (2012)

The Second Circuit Court of Appeals has upheld the district court’s dismissal of a petitioner’s motion to proceed in forma pauperis, resulting in dismissal of his complaint against a number of city, corrections and mental health officials alleging they violated his civil rights. The petitioner had filed three previous petitions as a prisoner that had been dismissed as frivolous, malicious, or failed to state a claim upon which relief may be granted. The Court held that although the petitioner was being detained in a mental health facility, he was still a “prisoner” for purposes of the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(g), and thus subject to the Act’s limitation on proceeding in forma pauperis in federal court.

The petitioner, Bennie Gibson, had been charged with third degree criminal mischief under New York law and was being detained at Kirby Psychiatric Center in the custody of the Commissioner of Mental Health on a temporary order of observation for restoration of his capacity to stand trial. While federal law generally permits a district court to waive filing fees for individuals who cannot pay and to proceed in forma pauperis, Congress enacted the Prison Reform Litigation Act in 1995 to limit abuse of the legal system by prisoners who file repetitive frivolous complaints. “Prisoner” is defined under the Act as “any person…detained in any facility who is accused of…violations of criminal law.” 28 U.S.C. § 1915(h). Under New York law, criminal charges are not dismissed against a defendant held in the temporary custody of the Commissioner of Mental Health, but are merely suspended pending his treatment and restoration to capacity. Gibson therefore met the definition of a prisoner as a person detained as a result of an accusation, conviction, or sentence for a criminal offense. Had Gibson been held under a final order of observation as a civil unrestorable patient, been found not guilty by reason of insanity, or been civilly committed as a sexually violent predator, the result may not have been the same.

Found in DMHL Volume 32 Issue 1

US Supreme Court Holds Incompetence of State Prisoner Does Not Suspend Federal Habeas Proceeding

Ryan v. Gonzales, 568 U.S. __(2013)
slip opinion available at: http://www.supremecourt.gov/opinions/12pdf/10-930_7k47.pdf . Justice Clarence Thomas wrote the decision for a unanimous court.

The United States Supreme Court decided on January 8, 2013 in two consolidated capital cases that the incompetence of state prisoners does not suspend federal habeas corpus proceedings under either 18 U.S.C. § 3599 or 18 U.S.C. § 4241, reversing the decisions of the Ninth and Sixth Circuit Courts of Appeal.

An Arizona jury convicted Ernest Valencia Gonzales of felony murder, armed robbery, aggravated assault, first-degree burglary and theft. Gonzales had repeatedly stabbed a husband and his wife in front of their 7-year-old son during a burglary of their home. The husband died but his wife survived after several days of intensive care. The trial court sentenced Gonzales to death on the murder charge and to prison terms on the other charges.

After exhausting his state court remedies, Gonzales filed a petition for writ of habeas corpus in federal district court. Gonzales’ appointed counsel filed a motion to stay the petition on the grounds that Gonzales was no longer capable of communicating or assisting his counsel. The Ninth Circuit had previously held in Rohan v. Woodford, 334 F.3d 803 (9th Cir. 2003), that 18 U.S.C. § 3599(a)(2), the federal statute guaranteeing state capital prisoner’s a right to counsel in federal habeas proceedings required that the petitioner be sufficiently competent when he raises claims that could potentially benefit from his ability to communicate with counsel. If he is not competent, he is entitled to a stay of the proceedings pending his restoration to competency. The Ninth Circuit reasoned that without a stay, the petitioner is denied his right to counsel. Although applying Rohan, the district court, nevertheless, denied Gonzales a stay. It determined that the claims he raised were based on the record before the trial court or were resolvable as a matter of law ,and his lack of competence would therefore not affect his counsel’s ability to represent him. Gonzales then filed an emergency petition for writ of mandamus in the Ninth Circuit. While his case was pending, the Ninth Circuit decided Nash v. Ryan, 581 F.3d 1048 (2009), holding that habeas petitioners have an absolute right to competence on appeal, even though appeals are entirely record-based. The Ninth Circuit thereupon granted Gonzales’ writ and entered a stay pending his competency determination. The Supreme Court granted Arizona a writ of certiorari.

In the second case, an Ohio jury convicted Sean Carter of aggravated murder, aggravated robbery, and rape, and sentenced him to death for anally raping his adoptive grandmother and stabbing her to death. After exhausting his state court appeals, Carter’s attorney filed a federal habeas petition along with a motion requesting a competency determination and a stay of his proceedings. Following several psychiatric evaluations, the district court found Carter incompetent to assist counsel and, applying the Ninth Circuit’s test in Rohan, finding that Carter’s assistance was necessary to develop four of his exhausted state court claims. As a result, the district court then dismissed the habeas petition without prejudice and tolled the stature of limitations under the Antiterrorism and Effective Death Penalty Act of 1996.

On appeal, the Sixth Circuit recognized that federal habeas petitioners do not have a constitutional right to competence, but found a statutory right to competence under 18 U.S.C. §4241, relying in part on the Supreme Court’s decision in Rees v. Peyton, 384 U.S. 312 (1966). Rees required that a Virginia habeas petitioner awaiting the death penalty who decided to forego any further appeals of his conviction or sentence be competent enough to understand the nature of the proceeding and assist counsel before he could withdraw his habeas petition. The Sixth Circuit then ordered that Carter’s petition be stayed indefinitely with respect to any claims that required his assistance. The Supreme Court granted Ohio’s petition for writ of certiorari and consolidated the two cases for review.

On review, the Supreme Court noted not only that there is no constitutional right to counsel in habeas proceedings, but there is no due process right at all to collateral review. Murray v. Giarratano, 492 U.S. 1, 10 (1989). It acknowledged that the statute, 18 U.S.C. § 3599(a)(2), grants federal habeas petitioners on death row the right to federally funded counsel. It also gives district courts the power to authorize investigative, expert and other services. But the Court found the statute does not require district courts to stay proceedings when habeas petitioners are found incompetent. The Court reasoned that the right of a criminal defendant to competence in the original trial flows from the Due Process Clause of the Fourteenth Amendment and not from the Sixth Amendment right to counsel, even though the right to counsel at trial may be compromised if the defendant is not able to communicate with counsel. Review of a state court conviction in a federal habeas proceedings is limited to the record in existence at the time of the state court trial. Given the backward-looking, record-based nature of habeas proceedings, counsel can therefore effectively represent the petitioner regardless of his competence. The Court went on to find that the Ninth Circuit decision in Rohan incorrectly relied on Rees, a decision which simply dealt with an incompetent capital petitioner’s ability to withdraw his petition for certiorari.

Also reviewing the Sixth Circuit’s conclusion that 18 U.S.C. § 4241 provides a statutory right to competence, the Court found that § 4241 does not even apply to habeas proceedings involving state prisoners. Section 4241 only applies to federal defendants and probationers subject to prosecution by the United States and only to trial proceedings prior to sentencing, or after probation or supervised release. The Court therefore held that neither 18 U.S.C. § 3599 nor § 4241 requires suspension of a capital petitioner’s federal habeas proceeding when he has been adjudicated incompetent.

Both Gonzales and Carter also argued that district courts have the equitable power to stay proceedings when they determine habeas petitioners are incompetent. In Gonzales’ case, the Supreme Court held that the district court correctly found that all of his claims were record-based or resolvable as a matter of law. The district court did not therefore abuse its discretion in denying the stay. In Carter’s case, the district court found that four of his claims could potentially benefit from his assistance. However, the Supreme Court determined that three of the claims were adjudicated in state court post-conviction proceedings and could be reviewed on the record. It found it unclear whether the fourth claim, alleging ineffective assistance of appellate counsel for failing to raise trial counsel’s failure to pursue a competency to stand trial issue, required consultation with counsel. The Court nevertheless held that an indefinite stay would be inappropriate under the Antiterrorism and Effective Death Penalty Act whose purpose is to reduce delay in the execution of state and federal criminal sentences. The Court remanded Carter’s case with instructions that if the court found the fourth claim would substantially benefit from his assistance, the court must take into account the likelihood that Carter will regain competence in the foreseeable future. If there is no reasonable hope of competence, a stay is inappropriate. In a footnote, the Court acknowledged that its opinion does not implicate the prohibition against execution of a death sentence for a prisoner who is insane.

Found in DMHL Volume 32 Issue 1

Treatment of Mentally Ill Individuals in Custodial Settings: Liberty Interest Deprivation and Eighth Amendment

Claim of prisoner with mental illness that liberty deprivations from facility’s Behavior Action Plans were imposed without due process and resulted in Eighth Amendment violations raises genuine issues of fact and survives motion for summary judgment

Townsend v. Cooper, 759 F.3d 678 (7th Cir. 2014)

Townsend, a prisoner at the Green Bay Correctional Institution (GBCI), sued GBCI officials for civil rights violations. Townsend suffered from significant mental illness and engaged in disruptive behavior, including suicide attempts and fighting. Townsend was repeatedly subjected to observation placements and Behavioral Action Plans (BAPs). Vacating the judgment below, the Seventh Circuit held that Townsend had raised genuine issues of material fact regarding whether the imposition of the BAP violated his due process rights by imposing an atypical and significant hardship compared to the ordinary incidents of prison life, without appropriate notice and an opportunity to be heard and whether the BAP imposed conditions of confinement that denied Townsend the minimal civilized measures of life’s necessities.

To succeed on his Fourteenth Amendment due process claim, Townsend was required to “establish that he ha[d] a liberty interest in not being placed in the [BAP]—as it was administered to him—without procedural protections,” noting that it was “undisputed that he received no procedural due process, so the claim turns on whether he can establish a liberty interest.” Prisoners have a liberty interest, guaranteed by the Fourteenth Amendment, in “avoiding transfer to more restrictive prison conditions if those conditions result in an atypical and significant hardship when compared to the ordinary incidents of prison life.” In order to succeed on an Eighth Amendment claim, a prisoner must show that the BAP “imposed conditions that denied him the minimal civilized measure of life's necessities” and that defendants “acted in disregard of a substantial risk of serious harm to him.”

Found in DMHL Volume 34 Issue 1

Treatment of Mentally Ill Individuals in Custodial Settings: Custodial Interrogation

Police conduct with 18-year-old with Intellectual Disability is coercive under “totality of the circumstances”, rendering confession inadmissible

United States v. Preston, 751 F.3d 1008, 1010 (9th Cir. 2014)

The 9th Circuit, sitting en banc, held that under the totality of the circumstances, including the eighteen-year-old defendant's intellectual disability, a confession that resulted from police questioning was involuntarily given and should not have been admitted at trial. In reaching this decision, the court overruled Derrick v. Peterson, 924 F.2d 813 (9th Cir.1991) as well as subsequent cases relying on it, which had held that individual characteristics are “relevant to our due process inquiry only if we first conclude that the police's conduct was coercive.”

The court divided its initial inquiry into two categories—defendant’s reduced mental capacity and the techniques used during the interrogation. As to the first category, the court found that the intellectually impaired have a demonstrated increased vulnerability to coercion. The court also relied on scholarly assessment of common traits of intellectually disabled persons that may make them more susceptible to coercive interrogation techniques and then used those traits to inform their analysis of the techniques used to question the defendant, noting that “[A]s interrogators have turned to more subtle forms of psychological persuasion, and away from physical coercion, courts have found the mental condition of the defendant a more significant factor in the ‘voluntariness' calculus.”

The court based its totality of the circumstances inquiry into the coercive nature of the interrogation on several factors: (1) defendant's severe intellectual impairment, (2) repetitive questioning and the threats that questioning would continue without end, (3) pressure placed on the defendant to adopt certain responses, (4) the use of alternative questions that assumed defendant’s culpability, (5) the officers' multiple deceptions about how the statement would be used, (6) suggestive questioning that provided details of the alleged crime, and (7) false promises of leniency and confidentiality.

Found in DMHL Volume 34 Issue 1

Treatment of Mentally Ill Individuals in Custodial Settings: Eighth Amendment

Failure to follow national suicide screening prevention standards with prisoner who later commits suicide presents colorable eighth amendment claim that survives summary judgment motion

Barkes v. First Corr. Med., Inc., 766 F.3d 307 (3d Cir. 2014)

After Christopher Barkes committed suicide while being held at a correctional facility in Delaware, his wife and children brought a § 1983 suit against the commissioner of the state department of corrections (“DOC”), the warden, and the private company with whom the DOC contracted to provided medical services to the prison (“FCM”) alleging violations of the Eighth Amendment of the federal Constitution.

When Barkes was arrested in November, 2004, he underwent a medical intake screening procedure conducted by a licensed nurse employed by LCM, the private contractor hired to provide medical services to the prison. The procedure involved (1) a self-report intake form that included questions about suicidal ideation, (2) screening for seventeen suicide risk factors, and (3) a standard medical intake form with questions about “altered mental status ... or abnormal conduct.” Barkes indicated that he had attempted suicide in 2003, but made no mention of three other attempts (one in 1997 and two in 2004) and checked only two of the seventeen suicide screening factors (eight were required to initiate suicide prevention measures). Finally, the licensed practical nurse who conducted the evaluation reported that Barkes showed no signs of either altered mental status or abnormal conduct. Barkes did, however, place a call to his wife that evening and express his intention to kill himself, but his wife did not inform the DOC. The next morning, Barkes was observed lying on his bed in his cell at 10:45, 10:50, and 11:00 a.m. When an officer came to deliver his lunch at 11:35 a.m., Barkes had hanged himself with a bed sheet.

The Third Circuit held (1) for purposes of determining whether the warden and DOC commissioner were entitled to qualified immunity, Barkes’ constitutional right to “proper implementation of adequate suicide prevention tools” was clearly established at the time of his suicide; (2) that summary judgment was inappropriate given evidence that “FCM's policies and procedures in place at the time of Barkes's suicide created an unreasonable risk of a constitutional deprivation;” and (3) that a reasonable jury could have found that Barkes’ suicide was caused by the DOC’s failure to supervise FCM. The second holding was based on evidence of the DOC’s awareness that “FCM's suicide prevention screening practices were not in compliance with [National Commission on Correctional Health Care] standards, as required by their contract with the DOC.” The Third Circuit reached its third holding despite the fact that Barkes did not self-report any suicidal ideation or exhibit any suicidal behavior because, in the court’s view, “had Appellants properly supervised FCM and ensured compliance with the contract, Barkes's answers during his screening would have resulted in additional preventive measures being taken.”

Found in DMHL Volume 34 Issue 1

Cruel and unusual punishment

Cox v. Glanz, No. 14-5022, 2015 WL 5210607 (10th Cir. Sept. 8, 2015)

Claim by surviving family member that inmate’s suicide was result of deliberate indifference by jail staff survives motion for summary judgment in claim against sheriff in his official capacity, but summary judgment is granted to sheriff on claim against him in his individual capacity due to qualified immunity

Background: Charles Jernegan surrendered to the Tulsa, Oklahoma jail in response to a warrant for his arrest. His intake screening included a mental health and suicide questionnaire. Jernegan reported that he was taking medication for paranoid schizophrenia, and he answered “yes” to questions asking about experience of paranoia and experience of nervousness or depression. Jail protocols called for a person with such responses being directly referred to mental health staff, but no such referral was made. Jernegan did deny to jail staff and a screening nurse that he had any suicidal thoughts. Jernegan later made a request to “talk” with jail mental health staff about unspecified “problems,” but the responding staff person reported that when she went to see Jernegan he had been moved to another cell. The staff person had not followed up on this or seen Jernegan when, two days later, Jernegan committed suicide by hanging himself with a sheet. Jernegan’s mother brought § 1983 action against the county sheriff, in both his personal and official capacity, alleging that the jail’s “deliberate indifference” to her son’s mental health needs constituted cruel and unusual punishment in violation of the 8th amendment. The district court denied the sheriff's motion for summary judgment, on the grounds that there were facts in controversy in the matter that were determinative of the issue of the sheriff’s liability. The sheriff filed an interlocutory appeal.

Holdings: Qualified immunity for individual liability granted and claim dismissed: A 3-judge panel found that at the time of Jernegan’s suicide in 2009, there was no “clearly established” law that would have put the sheriff on notice that his conduct constituted “deliberate indifference” to Jernegan’s mental condition in the jail in violation of the 8 th amendment. The Court found that the then-existing law required a threshold finding that the sheriff had personal knowledge that Mr. Jernegan “presented a substantial risk of suicide” before liability could attach. Summary judgment motion for official capacity liability claim denied: The sheriff argued that “official capacity” liability requires proof of a policy, pattern or practice that resulted in the alleged constitutional violation, and that the record did not support a finding of any such policy, pattern or practice in this case. The panel responded that, although denial of a claim of qualified immunity is a final action that can be heard and reviewed on interlocutory appeal, the denial of a motion for summary judgment that is unrelated to a denial of qualified immunity is not a final action and therefore cannot (except in rare instances) be heard and reviewed on interlocutory appeal.

Notable Points: The panel’s decision is notable for its review of federal case law relating to jail operations that would put jail officials on notice as to what conduct constitutes such “deliberate indifference” to an inmate’s condition that it amounts to “cruel and unusual punishment” in violation of the 8 th amendment. That review included mention of the U.S. Supreme Court’s recent decision in Taylor v. Barkes, --- U.S. ----, 135 S. Ct. 2042 (2015) (per curiam), where the Court found that, as of November 2004, there was no clearly established "right" of an inmate to be adequately screened for suicide.

Found in DMHL Volume 34 Issue 3

Cruel and unusual punishment

Young v. Martin, No. 13-4057, 2015 WL 5202968 (3d Cir. Sept. 8, 2015)

Claim by prisoner with history of mental illness and behavioral disorder that being restrained naked in a chair for 14 hours violated the 8 th amendment survives summary judgment

Background: State prisoner Young brought a § 1983 action alleging violations of the 8 th Amendment. Young had a long history of serious mental illness and extensive disciplinary problems in different Pennsylvania prisons, and had been in solitary confinement for several years, during which time his symptoms of mental illness had intensified. The incident resulting in his being placed naked in four-point mechanical restraint in a restraint chair occurred when a guard inadvertently left Young’s cell door open. Young went out to an internal ledge above the prison’s law library, where he voiced his objections to the conditions of his confinement. Young never acted aggressively, never threatened others, and when taken into physical custody by guards he initially cooperated, and then engaged in passive resistance, forcing guards to carry him but offering no active resistance to being stripped naked, subjected to a body cavity search and secured to the restraint chair. Prison policies provide for use of the restraint chair when an inmate acts or threatens to act in a manner that places the inmate or others at risk of harm, and provides for a maximum time period of 8 hours (with extension requiring a written request and approval that was never obtained here).

The district court granted defendants' motion for summary judgment, finding that the guards “acted professionally and within constitutional parameters” in “subduing” Young and placing him in the restraint chair. The district court also denied Young’s request for a stay of the proceedings to allow for the release of the U.S. Department of Justice’s report on its investigation of the Pennsylvania prison system’s treatment of inmates with serious mental illness.

Holdings: A 3-judge panel of the Court of Appeals found that the conduct of the guards alleged by Young fell under the “use of excessive force” test to determine whether Young had been subjected to cruel and unusual punishment in violation of the 8 th Amendment. Reviewing the record under the criteria identified in Hope v. Pelzer, 536 U.S. 730 (2002)11 , and “drawing all inferences in favor of Young as the nonmoving party,” the Court ruled that “we cannot say that ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”12 The Court thereupon remanded the case back to the district court. The panel directed that the district court on remand consider whether the DOJ report was admissible, and whether such admission would be “unduly prejudicial” to the defendants.

Notable Points:

Eighth amendment analysis of use of mechanical restraints—“excessive force” vs. “conditions of confinement”: The panel rejected the defendants’ claim that their treatment of Young should be analyzed under the “conditions of confinement” framework. The panel noted that the U.S. Supreme Court in Hope ruled that the use of mechanical restraints in a prison setting could constitute cruel and unusual punishment. Applying the Hope criteria, the panel found the following: (1) Young was already subdued, and further was not violent, combative or self-destructive at any point during the incident leading up to his being placed in the restraint chair, (2) the events involved in the incident leading to Young’s placement in the restraint chair did not amount to an “emergency situation,” and (3) there was an issue of fact as to whether the guards’ use of the restraint chair subjected Young to “substantial risk of physical harm” and “unnecessary pain.”

Qualified immunity of the guards: The panel noted that the defendants made a onesentence claim in their appeal that they were entitled to summary judgment on the grounds of qualified immunity—that the state of the law at that time did not give them fair warning that their treatment of Young was unconstitutional. Noting that this claim was not addressed by the district court or briefed on appeal, the panel remanded the issue to the district court for consideration.

Found in DMHL Volume 34 Issue 3

Liability of Public Officials for Care of Mentally Ill Inmates in Correctional Setting

Saylor v. Nebraska, 812 F.3d 637 (8th Cir. 2016), as amended (Mar. 4, 2016)

Claim by jail inmate with mental illness against jail doctors and staff under 42 USC § 1983 did not establish deliberate indifference required under the Eighth Amendment to establish liability. Summary judgment granted to all defendants based upon qualified immunity.

Background: James Saylor sued the State of Nebraska, the Nebraska Department of Correctional Services (“NDCS”), Correct Care, LLC, and several individuals alleging violations of his First, Eighth, and Fourteenth Amendment rights under 42 U.S.C. § 1983. Saylor alleged that defendants acted with deliberate indifference to his serious medical needs by failing properly to treat him for PTSD. He claimed that his level of care at Nebraska State Prison was so low as to constitute cruel and unusual punishment. The district court dismissed Saylor’s claims against the State of Nebraska and the NDCS and the claims for monetary relief against the individual defendants in their official capacities. The district court then denied the remaining defendants’ motions for summary judgment on the basis of qualified immunity.

Holdings: On appeal, the Eighth Circuit reversed, holding that there were not genuine disputes concerning “the predicate facts material to the qualified immunity issue.” Because the Court found that the record showed that all defendants “met Saylor’s medical needs beyond the minimum standard required,” there was no deprivation of Saylor’s Eighth Amendment rights. Thus, defendants were entitled to qualified immunity.

Notable Points:

Qualified immunity for non-medical defendants: In order to overcome a defense of qualified immunity for the non-medical defendants, a plaintiff must show that supervisors had direct responsibility for the alleged violations, had actual knowledge of the violation, or gave tacit authorization for the violation. The Court held that the non-medical prison supervisors who approved Saylor’s transfer were not indifferent to his PTSD in violation of the Eight Amendment because Saylor provided “no specific evidence that they were involved in, or directly responsible for, his allegedly insufficient medical care.”

Qualified immunity for medical defendants: In order to overcome a defense of qualified immunity for the medical defendants, a plaintiff must show that defendants were personally responsible for violations, or were responsible for a systematic condition that violated Constitution. Here, the Court held that the State prison’s medical staff was not deliberately indifferent to Saylor’s PTSD even though Saylor argued that he received treatment that rose to the level of cruel and unusual punishment after his original treating physician left. Records showed that medical staff provided beyond the minimum standard required after his previous treater left, first providing Saylor with another physician at the same facility and then ultimately a physiatrist at a different facility. They also continued his medication consistent with their independent medical judgment. The staff also granted Saylor’s request for a private cell and sought his agreement for certain deviations from his original treatment plan.

Found in Found in DMHL Volume 35, Issue 1