Ineffective assistance of counsel

United States v. Laureys, 866 F.3d 432 (D.C. Cir. 2017)

D.C. Circuit reverses defendant’s conviction for attempted sex crime involving a minor due to defense counsel’s failure to properly consider mental health expert findings regarding defendant’s mental condition, with the result that defense counsel wrongly pursued his own unsupported theory and neglected expert evidence regarding defendant’s capacity to form the requisite criminal intent.

Found in DMHL Volume 36, Issue 3

Forcible administration of antipsychotic medication; due process; Sell doctrine

Winkel v. Hammond, 2017 WL 3225632 (10th Cir. July 31, 2017)

Tenth Circuit rules that defendant hospitalized for restoration to competency to stand trial has filed a plausible claim of a due process violation by hospital staff when he alleges that he was forcibly medicated without any finding that he posed a danger to self or others or that he met the Sell standards for forcible medication to restore him to competency.

Found in DMHL Volume 36, Issue 3

Eighth Amendment right of jail inmate to be free from deliberate indifference to risk of suicide; qualified immunity

Estate of Clark v. Walker, 865 F.3d 544 (7th Cir. 2017)

Seventh Circuit denies motion for summary judgment and claims of qualified immunity by jail deputy and contract nurse in suicide case, where deceased inmate’s estate alleged defendants failed to follow jail’s suicide protocols despite testing that showed maximum suicide risk; private contract nurse found ineligible to invoke qualified immunity.

Found in DMHL Volume 36, Issue 3

Competence to stand trial; ineffective assistance of counsel

Anderson v. United States, 865 F.3d 914 (7th Cir. 2017)

Seventh Circuit rules that defendant who had entered guilty plea to a felony charge is entitled to a hearing on whether he was competent at the time to enter that plea, as neither his counsel nor the court made adequate inquiries despite evidence of his serious mental illness.

Found in DMHL Volume 36, Issue 3

Excessive force ; qualified immunity

Roell v. Hamilton Cty., 870 F.3d 471 (6th Cir. 2017)

Sixth Circuit upholds summary judgment in favor of law enforcement officers sued for use of excessive force by estate of man who died while being physically subdued and tasered by the officers in response to his acting out behaviors and active resistance of the officers.

Found in DMHL Volume 36, Issue 3

NGRI acquittees; constitutional standards for release from civil commitment

Poree v. Collins, 866 F.3d 235 (5th Cir. 2017)

Fifth Circuit rules that, although due process requires a finding of both current mental illness and dangerousness in order to maintain the civil confinement of an NGRI acquittee, the trial court’s determination of dangerousness may be based on the acquittee’s potential for dangerous conduct.

Found in DMHL Volume 36, Issue 3

Competency to be executed

Panetti v. Davis, 863 F.3d 366 (5th Cir. 2017)

Fifth Circuit finds petitioner who was convicted of murder and sentenced to death has a due process right to a hearing and funds for counsel and mental health experts to pursue a claim that he is not competent to be executed due to his serious mental illness.

Found in DMHL Volume 36, Issue 3

Execution of incompetent defendant

Madison v. Alabama Dept. of Corrections, 851 F.3d 1173 (11th Cir. 2017)

Eleventh Circuit holds that defendant who, as a result of dementia developing after his conviction for capital murder had become incapable of remembering or understanding that he had committed the crime for which he was to be executed, was incompetent for execution under Ford v. Wainwright and Panetti v. Quarterman

Found in DMHL Volume 36, Issue 2

Excessive force; qualified immunity

S.B. v. County of San Diego, et al., 2017 WL 1959984 (9th Cir. May 12, 2017)

Ninth Circuit reverses district court’s refusal to grant sheriff deputy’s motion for summary judgment based on qualified immunity, finding that, while the officer’s use of lethal force was objectively unreasonable, there were no existing court decisions at the time of the event that were specific enough to give the deputy clear prior notice that his use of force in those particular circumstances would be unreasonable.

Found in DMHL Volume 36, Issue 2


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

Administration of psychotropic medication; due process

Johnson v. Tinwalla, 855 F.3d 747 (7th Cir. 2017)

Seventh Circuit reverses summary judgment awarded by the district court to facility physician who prescribed and arranged for dispensing of psychotropic medication over an inmate’s objection, finding that an inmate can pursue claims that his resulting unknowing taking of the medication violated his constitutional due process rights and constituted common law medical battery.

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

Off-label Drug Prescriptions

United States ex rel. Ibanez v. Bristol-Myers Squibb Co., 874 F.3d 905 (6th Cir. 2017)
Sidney Hillman Health Ctr. of Rochester v. Abbott Labs., 873 F.3d 574 (7th Cir. 2017)

The following two cases both involved off-label drug prescriptions and improper promotion practices.

United States ex rel. Ibanez v. Bristol-Myers Squibb Co., 874 F.3d 905 (6th Cir. 2017)

Two former sales representatives of Bristol-Myers Squibb Co. (BMS) filed a qui tam action alleging improper promotion of Abilify. The district court had dismissed the complaint in part and denied the relators’ motion to amend. On review, the Sixth Circuit noted the long chain of causal links the relators alleged “reveals just what an awkward vehicle the [False Claims Act] is for punishing off-label promotion schemes,” but ultimately upheld the lower court’s rulings because the relators could not adequately amend the complaint to meet the requirements of the FCA (such as providing a representative claim). Judge Stranch concurred with one part of the court’s holding but dissented regarding many of its other findings about the relators’ claim sufficiency, noting the importance of combating health care fraud.

Sidney Hillman Health Ctr. of Rochester v. Abbott Labs., 873 F.3d 574 (7th Cir. 2017).

In 2012, Abbott Laboratories pleaded guilty to unlawful promotion and paid $1.6 billion for undercover promotion activities that encouraged off-label use of Depakote. In 2013, two welfare-benefit plans (Payors) filed suit seeking damages under the Racketeer Influenced and Corrupt Organizations (RICO) Act. As relevant here, a district judge dismissed the complaint, ruling that Payors could not hope to show proximate causation as required under RICO. On appeal, Payors claimed that Abbott’s activities directly injured them, but the Seventh Circuit noted that it was “not at all clear that they are the initially injured parties, let alone the sole injured parties.” The court noted that patients suffer most directly and expressed skepticism in Payors’ claimed ability to show damages using statistical and other means to identify how Abbott’s practices led to specific instances of Payors spending money on off-label Depakote prescriptions.

Found in DMHL Volume 37, Issue 1

Mental Health, Sentencing

United States v. Carlin, 712 F. App’x 365, (5th Cir. 2017); United States v. Stephens, 699 F. App'x 343 (5th Cir. 2017)
United States v. Wesberry, 709 F. App’x 895 (10th Cir. 2017)

The following three cases each involved defendant challenges to the imposition of mental health treatment as part of their sentencing. The cases are presented here in brief because of their relatively similar, short opinions that do not present notable fact patterns or developments in jurisprudence.

United States v. Carlin, 712 F. App’x 365, (5th Cir. 2017); United States v. Stephens, 699 F. App'x 343 (5th Cir. 2017).

Both Carlin and Stephens essentially concerned a misstatement of a condition of sentencing. In both cases, the court ordered that the defendant “participate in a mentalhealth program as deemed necessary and approved by the probation officer,” thus impermissibly delegating sentencing authority to the probation officer. In both cases, the Fifth Circuit affirmed a modified sentence that imposed mental health treatment, with details of the treatment to be supervised by the probation officer.

United States v. Wesberry, 709 F. App’x 895 (10th Cir. 2017).

In Wesberry, the defendant challenged the imposition of mental health treatment as part of his sentence under the U.S. Sentencing Guidelines, arguing that the condition was unreasonable because it bore no relation to the goals of the guidelines. The Tenth Circuit reviewed his claim for plain error because he had not challenged the condition in district court. The court found that there was no “well-settled” law supporting his challenge, thus there was no clear error to be found in the lower court’s sentencing decision. In addition, the court noted that the Guidelines’ policy statement recommends requiring participation in a mental health program if a court has reason, based on particularized findings, to believe the defendant is in need of psychological or psychiatric treatment; the court noted the district court’s reliance on presentence reports documenting Wesberry’s diagnoses and medications as meeting the requirement of particularized findings.

Found in DMHL Volume 37, Issue 1

Qualified Immunity, Law Enforcement, Excessive Force

Isayeva v. Sacramento Sheriff's Dep't, 872 F.3d 938 (9th Cir. 2017)

Ninth Circuit held that (1) disputation about the reasonableness of deputy’s actions did not preclude granting qualified immunity, and (2) deputy was entitled to qualified immunity for the tasing and fatal shooting of the decedent because the decedent held no clearly established right not to be shot in circumstances in which he was larger than two officers, was not incapacitated by the taser, and was “winning” in hand-to-hand combat with the officers.

Found in DMHL Volume 37, Issue 1

Qualified Immunity, Excessive Force, Law Enforcement

Frederick v. Motsinger, 873 F.3d 641 (8th Cir. 2017)

Eighth Circuit held that deploying a Taser against a person in a public area who was refusing law enforcement commands to drop a knife did not violate a clearly established right and the officers were eligible for qualified immunity.

Found in DMHL Volume 37, 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