ADA Integration Mandate

Steimel v. Wernert, 15-2377, 823 F.3d 902 (7th Cir. 2016)

For the purposes of the ADA integration mandate, protection is not limited to just those who are institutionalized. A state may violate the integration mandate if it refuses to provide already-existing treatment to disabled people where such services would improve community integration.

Background: Section 1915(c) of the Social Security Act established the Home and Community-Based Care Waiver Program, which allowed states to diverge from the traditional Medicaid program to provide community-based care for Medicaid receivers who would have otherwise been institutionalized. Nonetheless, the states must comply with the ADA’s integration mandate, which requires that the states administer services in “the most integrated setting appropriate” for qualified individuals.

The Indiana Family and Social Services Administration (The Agency) runs three of many home- and community-based services in the Medicaid program: the Aged and Disabled Medicaid Waiver Program (A & D waiver), the Community Integration and Habilitation Medicaid Waiver Program (CIH waiver), and the Family Supports Medicaid Waiver Program (FS waiver). The relevant differences between the three are the monetary cap on services and what must be demonstrated to qualify for said services. The FS waiver had a service cap of $16,545, whereas the CIH and A & D waivers did not have caps. In 2011, The Agency felt that it needed to change its policies to better adhere to A & D rules. The plaintiffs were moved to the FS waiver and were ineligible for the CIH waiver; they subsequently filed their claim, alleging that, because of this change, they enjoyed 30 fewer hours in the community than they did before the change. Furthermore, plaintiffs’ guardians alleged that the restriction of services led to lapses in supervision of plaintiffs that had and would result in injuries. The plaintiffs argued that this waiver structure violated the integration mandate because it effectively institutionalized the plaintiffs within their own homes and put them at risk for being institutionalized. The district court granted summary judgment to the defendants; plaintiffs appealed.

Holding: The Seventh Circuit extended the meaning of “institutionalized” to include in one’s own home, thus qualifying plaintiff’s argument. The court further noted that a state may be in violation of the integration mandate if it refuses to provide already-available services to individuals who could be more integrated into the community with such services. And because the plaintiffs sought services that already existed within the structure, the state was obligated to provide them if they enabled the plaintiffs to live in a more community-integrated setting.

Found in DMHL Volume 35, Issue 2

Liability Under 42 U.S.C. Section 1983 for Involuntary Custody

Myers v. Patterson, 819 F.3d 625 (2d Cir. 2016)

Second Circuit finds that the district court record was insufficient to support a finding of qualified immunity for police officer responding to child protective services report who took a mother into custody based on finding of danger to self or others due to mental illness, and remands for further proceedings.

Background: A Child Protective Services caseworker, Jodi Weitzman, was assigned to investigate Julia Johnson after reports from her son’s school. Weitzman eventually summoned police to Johnson’s home, believing that she should be sent for a psychological evaluation. The only record of the arrest was Weitzman’s handwritten notes; the police officer did not take notes and did not testify. The notes described Johnson as annoyed and uncooperative, and her son, DJM, as fearful. The officer, Patterson, arrested Johnson and she was sent to a medical facility for evaluation. The district court granted Patterson qualified immunity under 42 U.S.C. Section 1983 because Johnson did not put forth evidence that would suggest Patterson was not making a reasonable decision as a police officer when he detained her. The officer’s motion for summary judgment was granted.

Holding: A police officer must have probable cause to believe a person is at risk of harming himself or others in order to lawfully detain them. A police officer would have probable cause if other reasonable police officers would not disagree with his conduct or he was acting under the professional judgment of a licensed caseworker. The Second Circuit found that the record had insufficient detail to make a probable cause determination, one way or the other. The court vacated the district court’s assignment of qualified immunity and remanded the case to that court in order to further develop the record and reconsider the question of qualified immunity.

Notable Points:

Assessment for probable cause is anchored at time of custody: After Johnson was arrested, she was found to be a danger to herself and others, according to the psychological evaluation. Eventually, her parental rights were severed. Regardless of whether the subsequent facts make Patterson’s arrest seem more plausible, the court would only consider the facts at the time of the conduct.

Found in DMHL Volume 35, Issue 2

Treatment over Objection to Restore Defendant to Competency to Stand Trial

United States v. Sheikh, No. 15-4616, 2016 U.S. App. LEXIS 9920 (4th Cir. June 1, 2016)

Fourth Circuit upholds district court order authorizing treatment. [Editor’s Note: This is an unpublished opinion and, thus, is not binding precedent. It is included because it is an instructive case regarding fact-finding under Sell and United States v. Watson, 793 F.3d 416 (4th Cir. 2015). DMHL previously covered Watson in Volume 34, Issue 3.]

Background: The United States charged Basit Javed Sheikh with one count of violating 18 U.S.C. § 2339B after his alleged attempt to join al-Nusrah Front, a foreign terrorist organization designated by the Secretary of State as an alias for al-Qa’ida. The district court concluded that Sheikh was incompetent to stand trial after two pretrial competency examinations, and ordered him hospitalized for attempted competency restoration. Sheikh refused to cooperate with treatment, and the United States moved for permission to involuntarily medicate him based on his psychiatric evaluation. At the Sell hearing, three medical experts testified and the district court determined that involuntary medication was appropriate. The order was stayed pending Sheikh’s anticipated interlocutory appeal.

Holding: The Fourth Circuit affirmed, holding that the district court had properly applied the four-part test established by Sell, and had adequately explained its findings. The court found that involuntary medication of the defendant would significantly further the United States’ prosecution interests without a substantial likelihood of producing side effects that would interfere with the defendant’s ability to assist counsel in conducting a defense.

Notable Points:

The possibility of civil commitment did not sufficiently mitigate the United States’ prosecutorial interest to preclude involuntary medication: The first Sell factor weighs the government’s interest in bringing to trial an individual accused of a “serious” crime. Fourth Circuit precedent has recognized that a crime carrying a statutory maximum of ten years or more qualifies as “serious” within the Sell context—the crime of which Sheikh was accused carried a statutory maximum of fifteen years. Despite this strong prosecutorial interest, Sheikh contended that the district court had erred by failing to find the possibility of his civil commitment to be a special circumstance sufficient to negate the United States’ prosecutorial interests (see U.S. v. Onuoha below, which discusses special circumstances as well). Sheikh argued that the likelihood of his civil commitment mitigated (and negated) the government’s prosecutorial interest because they “need not be concerned that he will be released to the public” even in the absence of a conviction.

The Fourth Circuit disagreed. Although the district court did weigh the possibility of civil commitment, it found that, particularly given the nature of the charges against Sheikh, that possibility did not negate the government’s prosecutorial interests. Stating that “not every serious crime is equally serious,” the Fourth Circuit found that the government’s interest in combating terrorism is “an urgent objective of the highest order” and that the relevant criminal statute (§ 2339B) represents the “considered judgment of Congress and the Executive that providing material support to a designated foreign terrorist organization—even seemingly benign support— bolsters the terrorist activities of that organization.” Ultimately, the Fourth Circuit held that although the possibility of civil commitment mitigates one aspect of the government’s prosecutorial interest (i.e., ensuring Sheikh will not be released into the community), it did not address the additional prosecutorial interest of general deterrence that is achieved when “a person is convicted of a serious crime, thus deterring others from making the same mistake.”

Found in DMHL Volume 35, Issue 2

42 U.S.C Section 1983 Liability; Emergency Custody

Goines v. Valley Cmty. Servs. Bd., No. 15-1589, 2016 U.S. App. LEXIS 8512 (4th Cir. May 9, 2016)

Claim of Fourth Amendment seizure violation by officers who used independent emergency custody authority to take person into custody for mental health evaluation survives officers’ motion to dismiss, as facts alleged by plaintiff, if proved, would establish unlawful seizure. Related claim against CSB evaluator dismissed.

Background: In a complaint filed in the district federal court, Gordon Goines alleged that, on May 15, 2014, he was experiencing problems with his cable television service and was informed by a technician that one of his neighbors had spliced into his cable, and that that was the cause of the connectivity issues. Goines, according to his complaint, went across the street to a police station to report the theft. Goines took two officers back to his apartment, but the officers did not turn on the television and so did not hear the strange noises. Instead, according to Goines, the officers asked if Goines had any mental health issues or if he “wanted to talk to someone.” Goines believed they were referring to the problem with his television and so said yes. The officers then handcuffed Goines and transported him involuntarily to the area medical center. There he was interviewed by an intake clinician employed by Valley Community Services Board, who concluded that Goines suffered from a mental illness and posed a threat to the safety of his neighbors.

Goines was hospitalized until his release on May 20, 2014. Goines then brought an action under 42 U.S.C. § 1983, alleging that he was unlawfully seized without probable cause in violation of the Fourth and Fourteenth Amendments. Goines noted in his complaint that he suffers from cerebellar ataxia, which affects his speech, balance and fine motor coordination, but that he has no mental health issues. The district court granted defendants’ motion to dismiss for failure to state a claim and dismissed the complaint in its entirety.

Holding: On appeal, the Fourth Circuit held that the claims against the mental health intake clinician and her employer were properly dismissed, but that the claims against the two officers had been dismissed in error. The court found that the allegations in Goines’ complaint were sufficient to survive a motion to dismiss with regard to the officers because the complaint provided no reasonable basis for the officers to have concluded that Goines was a danger.

Notable Points:

Goines’ complaint plausibly alleged facts that no reasonable officer would have found sufficient to justify an emergency mental health detention: The Appeals Court noted that “a motion to dismiss tests the sufficiency of a complaint,” so that the Court’s review was limited to “a review of the allegations in the complaint itself.” The defendant officers, noting that Goines had included the officers’ Incident Report as an attachment, argued that, by including the Report, Goines had adopted all of the statements in the Incident Report as true. Those statements, which described behaviors by Goines and observations of Goines by the officers that Goines did not allege in his complaint, were cited by the officers as showing good cause for Goines’ seizure, and thereby supporting the officers’ motion to dismiss. Goines argued, and the Appeals Court agreed, that while Goines relied on the Incident Report for some of the facts in his complaint, he did not base his claims on the Incident Report, and none of his claims were dependent on the truth of any statements contained in the Incident Report. Goines merely used the report to support his theory that the police assumed from his physical difficulties that he was mentally ill. The Fourth Circuit determined that Goines’ complaint alleged facts indicating that the officers failed to make a sufficient inquiry before assuming a threat and transporting him to the evaluation center. Also important to the court were the alleged facts that (1) Goines had reported to the stationhouse seeking police assistance and (2) the officers were not faced with an emergency situation that would limit their ability to conduct further inquiry.

Goines’ complaint failed to allege a constitutional violation by intake clinician: In contrast to the officers’ Incident Report, the Fourth Circuit found that Goines had incorporated by reference the intake Screening Report. Probable cause to seize a person for psychological evaluation exists “when the facts and circumstances within the defendant’s knowledge and of which the defendant had reasonably trustworthy information were sufficient to warrant a prudent man to believe that the person poses a danger to himself or others.” The Screening Report, which Goines had adopted for purposes of his claims against the clinician and community services board, showed that the clinician had observed Goines “behaving as if he were responding to visual hallucinations” and had received seemingly trustworthy information from the officers that Goines had been suffering from auditory hallucinations. Additionally, Goines, while in the clinician’s presence, threatened to attack his neighbors after his release. Taken together, the court held that these facts established probable cause for the emergency mental health detention, and supported the clinician’s motion to dismiss.

Found in DMHL Volume 35, Issue 2

Employment Discrimination in Mental Health Facilities

Blackburn v. Dep't of Soc. & Health Servs., 375 P.3d 1076 (Wash. 2016)

Washington Supreme Court rules that psychiatric hospital cannot modify staff assignments to accommodate racial prejudices of patient, even when patient threatens violence if staff members of a particular race are assigned to him.

Background: Plaintiffs were employees of a psychiatric hospital and challenged alleged discriminatory staffing practices. Employees were generally assigned a particular home ward, but could be reassigned based on a “pull list.” The pull list was meant to ensure that employees were reassigned to other wards on an equal basis. M.P., a particularly violent patient, threatened an African-American staff member, which resulted in a decision not to assign any African-American staff to that patient’s ward to ensure staff safety. The following day, a nurse directed that a white staff person be assigned to M.P.’s ward, which would have been a deviation from the pull list assignment system. The plaintiff employees sued claiming employment discrimination and disparate treatment. The trial court dismissed the claims, concluding the adverse employment action was not severe enough to be actionable and the overriding factor was safety. The plaintiffs appealed.

Holding: The Washington Supreme Court ruled that there were no valid legal justifications for the race-based determinations in the staffing directive. The court reversed the decision of the trial court on this claim and remanded for a determination of damages.

Notable Point:

Bona fide occupational qualification (BFOQ): The court found it doubtful that a BFOQ defense could apply in this case, but ruled that it had been waived by the defense at trial.

Found in DMHL Volume 35, Issue 3

Judicial Order Authorizing Involuntary Administration of Medication in Hospital Setting

In re I.G., 2016 VT 95

Vermont Supreme Court reverses lower court order authorizing medication over objection of involuntarily committed patient because the lower court failed to make specific findings on whether patient’s written statement of objection to medication, made prior to hospitalization, was a competent refusal that had to be honored under Vermont law.

Background: I.G. was hospitalized at the Vermont Psychiatric Care Hospital (VPCH) pursuant to a court order stemming from an arrest for assaulting his girlfriend. I.G. was previously hospitalized at VPCH and was diagnosed with schizophrenia. When he was discharged from VPCH after the previous hospitalization, he started living at a residence for people with mental illness. While there, I.G. signed a document purported to be an advance directive stating that he did not want any psychiatric medication. Following I.G.’s current hospitalization, VCPH filed an application to involuntarily medicate I.G. After a hearing, the trial court ordered I.G.’s involuntary medication for 90 days. I.G. appealed. 

Holding: The Vermont Supreme Court ruled that the trial court did not adequately address the issue of whether the purported advance directive was a competent written expression or preference regarding medication according to Vermont statute. The court reversed and remanded for a determination of I.G.’s competency at the time of signing the advance directive.

Notable Point:

Advance directive: The Vermont Supreme Court reversed the decision of the trial court even though the advance directive at issue in this case did not meet the statutory requirements of an advance directive because it was not signed by two witnesses.

Found in DMHL Volume 35, Issue 3

Provider Liability and Duty to Warn Third Parties in the “Zone of Danger” of Potential Harm by Patient

Kuligoski v. Brattleboro Retreat, No. 14-396, 2016 Vt. LEXIS 106 (Sep. 16, 2016)

Vermont Supreme Court replaces its May 6, 2016 opinion with an amended opinion, which still finds the existence of a duty of mental health care providers to warn a patient’s caregivers of dangers posed by a patient if those caregivers are actively involved in the patient’s treatment plan and are within the “zone of danger” posed by the patient’s violent propensities.

Background: E.R. was involuntarily committed to state mental health facilities and was diagnosed with a schizophreniform disorder before being transferred to Battleboro Retreat. After being discharged from the retreat to the home of his parents, who were his ongoing caregivers, and while undergoing outpatient treatment with Northeast Kingdom Human Services (NKHS), E.R. assaulted his father, Michael Kuligoski. Plaintiffs filed suit against Battleboro Retreat and NKHS for failure to warn of E.R.'s danger to others, failure to train E.R.'s parents in handling E.R., failure to treat, improper release, and negligent undertaking. The superior court granted the defendants’ motions to dismiss for failure to state a claim and plaintiffs appealed.

Holding: The Vermont Supreme Court reversed the rulings of the superior court relating to the failure to warn and failure to train claims. However, the court explained that the duty to warn included elements of the failure to train claim and held that there was no independent cause of action for a failure to train. The court also held that a provider has no duty to convey information in violation of HIPAA.

Notable Points:

Duty to warn: The court explained that the duty to warn is narrow and “applies only when a caregiver is actively engaging with the patient's provider in connection with the patient's care or the patient's treatment plan (or in this case discharge plan), the provider substantially relies on that caregiver's ongoing participation, and the caregiver is himself or herself within the zone of danger of the patient's violent propensities.”

§ 43 of the Restatement Third of Tort Law: The court rejected the view that there is a duty to third parties based on the undertaking of another.

Found in DMHL Volume 35, Issue 3

Provider Liability and Duty of Care in Outpatient Mental Health Setting

Chirillo v. Granicz, 41 Fla. L. Weekly 345 (2016)

In medical malpractice suit against psychiatrist for suicide of patient, Supreme Court of Florida rules that while there is no provider duty to prevent suicide in the outpatient setting, there is still a duty of care owed to the patient and the case presented a genuine issue of material fact as to whether that duty was breached.

Background: Robert Granicz filed a medical malpractice case against his deceased wife’s primary care physician, Dr. Joseph Chirillo, alleging he breached his duty of care in treating her, which resulted in her suicide. The decedent had a history of depression and began seeing Dr. Chirillo, who changed her medication from Prozac to Effexor. Following that change the decendant called Dr. Chirillo’s office and told his medical assistant that she had stopped taking the Effexor because of side effects and that she had not felt right for the past few months. This information was given to Dr. Chirillo, who changed the decedent’s prescription to Lexapro. Dr. Chirillo’s office called the decedent and told her to pick up her new prescription, but did not request that she schedule an appointment with Dr. Chirillo. The decedent picked up her prescription later that same day, but Granicz found her body hanging in their garage the next day. Dr. Chirillo filed a motion for summary judgment claiming that he owed no duty to prevent a patient’s unforeseeable suicide while the patient was not in his control. The trial court granted the motion, but the Second District reversed on appeal.

Holding: The Supreme Court of Florida affirmed the decision of the Second District and held that the plaintiff showed a genuine issue of material fact regarding the proximate cause of his wife’s suicide. The court remanded the case for trial.

Notable Point:

First District Case: The Florida Supreme Court explicitly disapproved the analysis regarding duty used by the First District in Lawlor v. Orlando, 795 So. 2d 147 (Fla. Dist. Ct. App. 2001).

Found in DMHL Volume 35, Issue 3

Imposition of Probation Conditions Requiring Sex Offender Treatment

Villanueva v. State, 41 Fla. L. Weekly 319 (2016)

Florida Supreme Court rules that probation condition requirement that defendant attend sex offender therapy was invalid because it did not bear a “reasonable relation” to rehabilitation where defendant was charged with lewd and lascivious molestation but convicted of misdemeanor battery.

Background: Villanueva was charged with one count of lewd and lascivious molestation of a child older than 12 but less than 16 years old. The victim was Villanueva’s daughter, who testified that Villanueva touched her breast and buttocks on three separate occasions. The jury acquitted Villanueva of lewd and lascivious molestation, but found him guilty of a lesser included offense of misdemeanor battery. The trial judge sentenced Villanueva to 90 days in jail followed by one year of probation. A special condition of the probation was a requirement that Villanueva participate in sex offender therapy pursuant to a Florida statute. That statute set probation standards including sex offender treatment for certain enumerated offenses, which included the charge of lewd and lascivious molestation, but not misdemeanor battery. Villanueva appealed, raising the issue of whether sex offender therapy was restricted by statute to only the enumerated offenses and whether the imposition the condition in this case comports with probation standards announced by the Florida Supreme Court in Biller. The district court upheld the sex offender treatment imposed by the trial court.

Holding: The Florida Supreme Court ruled that sex offender treatment was not limited to certain enumerated offenses, overruling a lower court decision in Arias v. State, 65 So. 3d 104 (Fla. Dist. Ct. App. 2011). The court also ruled that the imposition of sex offender treatment in the present case was invalid under Biller, because the condition did not rationally relate to future criminality.

Notable Point:

Rational relation to future criminality: The court explained that Villanueva’s conviction of the lesser included offense of misdemeanor battery indicated that the touching was not committed in a lewd and lascivious manner; therefore, he should not be a candidate for sex offender treatment. The court also relied on the fact that Villanueva did not have any prior convictions.

Found in DMHL Volume 35, Issue 3

Intellectual Disability and Death Penalty

Hall v. State, 41 Fla. L. Weekly 372 (2016)

On remand from the U.S. Supreme Court decision in Hall v. Florida, Florida Supreme Court finds that Hall meets the clinical, statutory, and constitutional requirements to establish that Hall’s intellectual disability precludes his being executed for the murders he committed.

Background: Freddie Lee Hall was convicted of murder in 1978 and his conviction and sentence were upheld by the Florida Supreme Court in 1981. After numerous appeals, Hall’s case received cert to the U.S. Supreme Court on a claim that Florida’s requirement that an inmate show an IQ test score of 70 or below before presenting any additional evidence of intellectual disability violated the Eighth Amendment. The U.S. Supreme Court agreed and remanded the case for a determination of Hall’s intellectual disability. 

Holding: The Florida Supreme Court found that despite Hall’s IQ test scores above 70, he met the clinical definition of intellectually disabled based on evidence of organic brain damage, mental illness, and records indicating low intellectual ability. The court reversed the order of the circuit court denying post-conviction relief, vacated Hall’s death sentence, and imposed a life sentence.

Notable Point:

Age of onset for intellectual disability: The court reiterated that Florida statute requires only that intellectual disability be demonstrated to have manifested prior to age 18, not that it be diagnosed prior to age 18.

Found in DMHL Volume 35, Issue 3

Burden of Proof for Involuntary Commitment

In re Hospitalization of Mark V., 375 P.3d 51 (Alaska 2016)

Alaska Supreme Court rules that for involuntary commitment based upon the person’s inability to care for self in the community, the petitioner has the burden to prove that, even with the services and supports that are available in the community, the person is too disabled to care for self and that commitment is the least restrictive alternative.

Background: Anchorage police took Mark V. into custody and transported him to an emergency psychiatric facility after he was found nude in public claiming to be the King of England. The treatment facility petitioned the superior court for an ex parte order authorizing Mark’s hospitalization at Alaska Psychiatric Institute based on a determination that he was “gravely disabled” as a result of paranoid schizophrenia. The superior court granted the petition and ordered an evaluation period of 72 hours. During that initial evaluation period, Mark’s treating psychiatrist filed a petition seeking to extend Mark’s commitment for an additional 30 days. The superior court approved the 30-day commitment order based on testimony by Mark’s psychiatrist that Mark’s inappropriate behavior would continue if he were released before his manic symptoms improved.

Holding: The Alaska Supreme Court held that a 30-day commitment petition must allege less restrictive alternatives have been considered and petitioners must prove by clear and convincing evidence at a hearing that there are no less restrictive alternatives. The court found that this burden was met during the hearing and affirmed the decision of the superior court granting the 30-day commitment.

Notable Point:

No less restrictive alternative: The court explained that it is a constitutional prerequisite for involuntary commitment to prove that no less restrictive alternatives exist.

Found in DMHL Volume 35, Issue 3

ADA Non-discrimination Requirement for “Public Accommodations”

Levorsen v. Octapharma Plasma, Inc., 828 F.3d 1227 (10th Cir. 2016)

Tenth Circuit adopts a definition of “public accommodations” under the ADA that results in a commercial plasma donation center being prohibited from refusing to do business with a person with schizophrenia who seeks to donate plasma.

Background: Brent Levorsen had various psychiatric disorders including borderline schizophrenia. For years, Levorsen donated plasma in exchange for money in an effort to supplement his limited income. In May 2013, he attempted to do so at a Salt Lake City branch of Octapharma Plasma, Inc., but an employee at that location became aware that Levorsen had borderline schizophrenia. The employee informed Levorsen that he was ineligible to donate plasma out of a fear of him lashing out during the donation process, possibly injuring himself or others. Levorsen then obtained a note from his psychiatrists clearing him to donate, but Octapharma maintained its refusal to allow Levorsen to donate. Levorsen then brought suit claiming discrimination under the ADA. The district court granted Octapharma’s motion to dismiss for failure to state a claim based on a determination that plasma donation centers do not fit the definition of a service establishment under the ADA.

Holding: The Tenth Circuit reversed the district court’s finding and held that plasma donation centers fit the definition of service establishments under the ADA. The court reasoned that the “ordinary meaning” of service establishment was not tied to the purchase of services from the establishment; rather, an establishment that provides a service, which could include accepting and paying for donations of plasma, is the essence of the term and what the ADA sought to cover. The court remanded the case for further proceedings consistent with that determination.

Found in DMHL Volume 35, Issue 3

Individuals with Disabilities Education Act (IDEA) and Mental Health Services

L.J. v. Pittsburg Unified Sch. Dist., No. 14-16139, 2016 U.S. App. LEXIS 16201 (9th Cir. Sep. 1, 2016)

Ninth Circuit rules that a student was eligible for special education services based on prior psychiatric hospitalizations and suicide attempts even though those incidents occurred outside the school environment, and directs that an individualized education plan be developed for the student despite findings that the student was performing well at school.

Background: L.J. was a primary school student exhibiting behavioral problems in grades two through five. L.J.’s mother repeatedly requested that the school district find L.J. eligible for special education under the IDEA, but the requests were denied. Through mediation, the school district agreed to transfer L.J. to another school, provide one-onone counseling through a paraeducator, and provide an assessment by a school psychologist. Despite the services provided, L.J. continued to act out violently and made two suicide attempts resulting in his confinement to a psychiatric hospital, which caused him to miss six school days. L.J.’s mother filed a request for a due process hearing claiming the school district failed to provide a Free Appropriate Public Education (FAPE) by denying L.J special education services and that the district failed to make requested records relating to L.J.’s counseling available. An administrative law judge ruled that L.J. did not have any qualifying disabilities and even if he had such qualifying disabilities, L.J. was not eligible for special education services because his academic performance was satisfactory when he was able to attend school. On appeal, the district court ruled that L.J. had qualifying disabilities, but did not need special education services because of his satisfactory academic performance. 

Holding: The Ninth Circuit reversed and held that the student was eligible for special education services. The court ruled that the student exhibited a need for services because his improved performance was due to his receipt of special education services, and that the student's psychiatric hospitalizations and suicide attempts were relevant to his eligibility for specialized instruction even though they occurred outside the school environment. The court also held that the school district committed procedural violations of the IDEA by failing to disclose school records and failing to conduct a health assessment.

Notable Point:

Qualifications for special education services: The court explained that a student with qualifying disabilities is nonetheless ineligible for special education services if support provided through general education services is sufficient to address the needs of the student. The Ninth Circuit ruled that the lower courts mischaracterized the specialized services L.J. was receiving as falling under general education services.

Found in DMHL Volume 35, Issue 3

Mental Health Treatment Regulation and First Amendment Claims of Patients

Welch v. Brown, No. 15-16598, 2016 U.S. App. LEXIS 17867 (9th Cir. Oct. 3, 2016)

Ninth Circuit upholds California statute prohibiting state-licensed mental health providers from engaging in sexual orientation change efforts (SOCE) with minor patients, rejecting claims under the Free Exercise and Establishment clauses of the First Amendment.

Background: California SB 1172 went into effect prohibiting mental health providers from engaging in SOCE with patients under 18 years of age. Plaintiffs provided counseling and other services involving SOCE and appealed the denial of a motion for a preliminary injunction to prevent the enforcement of California SB 1172. Plaintiffs claimed that SB 1172 violated the Free Exercise and Establishment Clauses by excessively entangling the state with religion and advancing or inhibiting a religion. Plaintiffs also claimed that SB1172 violated a substantive due process right to privacy in seeking a particular type of treatment.

Holding: On appeal, the Ninth Circuit affirmed the district court's judgment upholding the California statute. The court held that plaintiffs' claims failed because the scope of the law regulated conduct only within the confines of the counselor-client relationship and the prohibition against sexual orientation change efforts applied without regard to the nature of the minor's motivation for seeking treatment. The court also ruled that substantive due process rights did not extend to the choice of type of treatment or provider.

Notable Point:

Confines of the counselor-client relationship: The court specifically held that SB 1172 does not apply to clergy or pastoral counselors “as long as they do not hold themselves out as operating pursuant to their license.”

Found in DMHL Volume 35, Issue 3

Medical Care and Substantive Due Process Violations in Correctional Facilities

Daniel v. Cook Cnty., No. 15-2832, 2016 U.S. App. LEXIS 14886 (7th Cir. Aug. 12, 2016)

Seventh Circuit rules that a plaintiff may submit into evidence a DOJ report showing “systemic flaws” in the jail’s medical care of inmates under the hearsay exception for “factual findings from legally authorized investigations.” [Editor’s note: While the substandard care addressed in this case did not involve mental health care, the court’s ruling has important implications for litigation involving mental health care in public facilities.].

Background: Alex Daniel was a pretrial detainee when he suffered multiple fractures in his wrist after falling during a basketball game. Daniel was initially treated by an on-duty general practitioner with an elastic bandage and a sling and after a delay was eventually treated by an orthopedic specialist. Daniel was placed in a long arm cast, which was replaced by a short arm cast three weeks later. The orthopedic specialist instructed Daniel to return in another three weeks to have the short arm cast removed; however, Daniel’s cast was not removed until ten weeks later. During this delay, Daniel filed multiple grievances with the jail staff seeking treatment for his wrist. Daniel was examined by another orthopedist who concluded that Daniel suffered from “residual and permanent stiffness of his left hand and wrist,” more likely than not caused by the long immobilization in the short arm cast. Daniel filed suit and offered as evidence a report from the DOJ detailing systemic health care problems at the jail. The district court granted summary judgment for defendant Cook County ruling that the DOJ report was inadmissible hearsay.

Holding: The Seventh Circuit ruled that the DOJ report met the requirements for a presumption of admissibility in civil cases for “factual findings from a legally authorized investigation” under the Federal Rules of Evidence. The court reversed the grant of summary judgment and remanded for further proceedings.

Found in DMHL Volume 35, Issue 3

Probation Supervision of Sex Offenders and Delegation of Judicial Authority

United States v. Morin, No. 15-50197, 2016 U.S. App. LEXIS 14549 (5th Cir. Aug. 8, 2016).

Fifth Circuit rules District Court’s probation requirement that the offender comply with “unspecified lifestyle restrictions” imposed by the offender’s therapist during supervised release constitutes an unauthorized delegation of judicial authority and the oral sentencing pronouncement controls when in conflict with the written record.

Background: Robert Morin pleaded guilty to failing to register as a sex offender as required by the Sex Offender Registration and Notification Act (SORNA). The district court sentenced Morin to 33 months of imprisonment and five years of supervised release. Morin challenged two conditions of his supervised release. He contended that the district court impermissibly delegated judicial authority by directing that Morin comply with unspecified "lifestyle restrictions" that might be imposed by a therapist throughout the term of his supervised release. He contended that the breadth of this requirement permitted a therapist, not the court, “to decide the nature and extent of the punishment imposed.” Morin additionally argued that the written requirement that he abstain from the use of alcohol during his term of supervised release was not included in the district court's oral pronouncement of the sentence, making it invalid. Holding: The Fifth Circuit agreed and vacated the two challenged conditions.

Notable Point:

Scope of conditions of supervised release: The Fifth Circuit emphasized that only courts have the authority to impose conditions of supervised release beyond the mandatory restrictions. The court agreed that the manner and means of therapy during treatment may be devised by therapists. Therapists and other non-judicial actors could forward to the court recommendations for new conditions.

Found in DMHL Volume 35, Issue 3

Excessive Force

Hughes v. Kisela, 841 F.3d 1081 (9th Cir. 2016)

Ninth Circuit reverses district court’s grant of summary judgment to police officers based on qualified immunity when there were disputed facts as to whether the officer acted reasonably when he shot a woman who was holding a knife, but not acting aggressively.

Background: In May 2010, three officers responded to a welfare check call and reports of a woman acting erratically and hacking at a tree with a large knife. Soon after the officers arrived, Amy Hughes exited her house carrying a large kitchen knife at her side with the blade pointing backwards. Sharon Chadwick, who lived with Hughes, was standing outside the house near the driveway at the time. She later testified that Hughes was composed and content. Chadwick also testified that she did not consider Hughes a threat and was not in any fear. The three officers each drew their guns and ordered Hughes to drop the knife; Corporal Kisela contended that the officers yelled several times but Chadwick remembered hearing only two commands in rapid succession. Corporal Kisela testified that he saw Hughes raise the knife as if to attack, but the other two responding officers told investigators that they did not see her raise the knife. Corporal Kisela fired four shots each of which struck Hughes, but the injuries were not fatal. Chadwick testified that Hughes was taking medication for bipolar disorder, and Chadwick was always able to manage Hughes’s behavior in the past. Chadwick also testified that she believes Hughes did not understand what was happening when the police yelled for her to drop the knife. The district court granted summary judgment in favor of the police officer on a theory of qualified immunity.

Holding: The Ninth Circuit ruled that the officer was not entitled to summary judgment with respect to the reasonableness of his actions. The court also explained that qualified immunity requires a determination that the actions of the officer were reasonable, which in this case involved disputed facts that should properly be weighed by a jury. The Ninth Circuit reversed the grant of summary judgment and remanded for a jury to determine whether the responding officer acted reasonably.

Notable Point:

Excessive Force and Mental Illness: The Ninth Circuit noted that there are not separate excessive force analyses for those with mental illness and serious criminals, but the government interest in using such force is diminished when confronted with an individual with mental illness.

Found in DMHL Volume 35, Issue 4

Content Link Block

Select a page and create a visual link to it. Learn more

Case Law

Excessive Force

Aldaba v. Pickens, 844 F.3d 870 (10th Cir. 2016)

The Tenth Circuit (following remand from the U.S. Supreme Court) reverses its prior decision that had denied qualified immunity to police officers in regard to a claim they used excessive force in subduing a medical patient attempting to leave the hospital (and risking death) due to temporary delirium, finding on remand that there were no existing case decisions that would have clearly informed those officers that their conduct violated Fourth amendment standards.

Background: Johnny Manuel Leija was admitted to the hospital after feeling ill for several days and was diagnosed with dehydration and severe pneumonia in both lungs. He was initially alert and cooperative and he was given an IV and an oxygen tube. The treatment improved Leija’s condition, but a nurse later found that Leija had cut his IV and removed his oxygen tube. She also found blood on the floor and in the bathroom. The nurse reconnected his IV and oxygen tube, but Leija became increasingly agitated. A doctor prescribed Xanax to treat his anxiety, but Leija refused to take it and again removed his IV and oxygen tube while loudly claiming that the nurse was telling lies and trying to poison him. The female nurse became concerned for her safety based on Leija’s behavior and a male nurse was sent to try to calm Leija. The male nurse found Leija claiming to be god and superman. The nurse attempted to inject Leija with Haldol and Ativan to calm him, but Leija refused to cooperate. The doctor was concerned about Leija’s low oxygen levels, and the nurse did not think they could restrain Leija sufficiently to administer the drugs for treatment. Law enforcement was called to assist. Three officers responded and found Leija in the hallway walking toward the hospital lobby and exit. The doctor told the officers that if Leija left the hospital he would die. The officers ordered Leija to return to his room, but he grew more agitated. Leija removed bandages from his arms and a “fairly steady stream of blood” began to flow from both of his arms. The officers tried to calm Leija and warned him that they might use a Taser. When Leija refused to cooperate, a Taser was deployed, but one of the probes missed. The other officers grabbed Leija and struggled to subdue him. As the three officers struggled with Leija, the male nurse injected him with Haldol and Ativan. Leija went limp, grunted and vomited clear liquid almost immediately after being injected with the drugs. Medical staff began CPR, but were unable to revive him. The cause of death was determined to be respiratory insufficiency secondary to pneumonia that was exacerbated by Leija’s exertion during the struggle with the officers. The Tenth circuit originally affirmed the district court’s denial of summary judgment for the officers, but the U.S. Supreme Court remanded with instructions to reconsider consistent with Mullenix v. Luna, 136 S. Ct. 305 (2015). In Mullenix, the Court ruled that qualified immunity should be denied only when “clearly established case law” would put officers on notice that it was “beyond debate” that their actions amounted to excessive force.

Holding: The Tenth Circuit found no cases that would have informed the officers “beyond debate” that their actions would be excessive force. Accordingly, the court remanded the case with instructions for the district court to grant summary judgment in favor of the officers based on qualified immunity.

Notable Point:

Qualified Immunity analysis: The Mullenix court emphasized that courts should not define clearly established case law at a high level of generality. The Court explained that “specificity is especially important in the Fourth Amendment context” because officers may have difficulty in determining how the legal doctrine will apply to the particular factual situation with which an officer may be confronted. The Court stressed that the inquiry must be focused on the specific facts and context of a particular case.

Found in DMHL Volume 35, Issue 4

Excessive Force

Wate v. Kubler, 839 F.3d 1012 (11th Cir. 2016)

Eleventh Circuit upholds district court’s refusal to grant law enforcement officer’s motion for summary judgment based on qualified immunity in response to a claim that he used excessive force in responding to a person in mental health crisis where there was evidence that the officer Tasered the detained person at least twice after the person had stopped actively resisting the officer.

Background: James Barnes was visiting a beach on Honeymoon Island in Florida with his aunt Paula Yount in order to conduct a baptismal ritual. While in the water, Barnes began acting erratically by flailing around and yelling about a demon. The only law enforcement officer on the Island at the time was Officer Tactuk, who responded to the commotion in the water. Yount came out of the water to speak with Tactuk, who then believed there was probable cause to arrest Barnes for battery on Yount. Tactuk entered the water and attempted to arrest Barnes, but a struggle ensued and Tactuk repeatedly struck Barnes in the face. Tactuk was able to place a handcuff on one of Barnes’s hands and they continued to struggle in the water. Bystanders eventually helped Tactuk drag Barnes onto the beach. Multiple witnesses had called 911 to report the incident and Tacktuk called for backup over the police radio. Tactuk attempted to place Barnes’s other hand in handcuffs, and a bystander observed that during the struggle, Barnes was coughing blood and appeared to have difficulty breathing. Officer Kubler responded to the incident about seven minutes after Tacktuk’s initial encounter with Barnes. Kubler and Tactuk continued to struggle with Barnes until Kubler deployed his Taser a total of five times over the course of nearly two minutes. Barnes became still and the officers were able to handcuff him. There was a dispute between the officers’ testimony and that of bystanders regarding when Barnes stopped resisting. An off-duty fire lieutenant who came to the scene at that point told the officers to take the handcuffs off because Barnes was not breathing and had turned blueish gray. The officers then removed the handcuffs and began CPR. Rescue personnel responded to the scene and took over the rescue, but Barnes died two days later. The cause of death was determined to be complications of asphyxia with contributory conditions of blunt trauma and restraint. Barnes’s representative brought suit against the officers and agencies involved. The other parties in the case settled with the plaintiff, but Officer Kubler moved for summary judgment based on qualified immunity. The district court denied the motion and Kubler appealed.

Holding: The Eleventh Circuit ruled that Kubler was not entitled to summary judgment and affirmed the holding of the district court. The court found that by reviewing the evidence in the light most favorable to the plaintiff, as required at the summary judgment stage, “a reasonable officer in Kubler's position and under these circumstances would have had fair warning that repeatedly deploying a Taser on Barnes, after he was handcuffed and had ceased resisting, was unconstitutionally excessive.”

Found in DMHL Volume 35, Issue 4

Unlawful Seizure

May v. City of Nahunta, 841 F.3d 1173 (11th Cir. 2016)

Eleventh Circuit reverses district court’s grant of summary judgment based on qualified immunity in seizure of individual for mental health evaluation, finding that although the evidence supported the officer’s initial seizure, the officer carried out the seizure in a manner that violated the individual’s constitutionally protected privacy interests.

Background: Phyllis May was the sole caregiver for her mother who was suffering from Alzheimer’s with sundowning syndrome, a condition that caused her to stay awake for days at a time. May became exhausted and called her brother to come help care for her mother before lying down. When her brother arrived several hours later, he was unable to wake May and called 911. Four EMTs responded and used an ammonia capsule to wake May. The EMTs evaluated May, but she refused to be transported to the hospital and the EMTs determined that she did not require further treatment. May executed a form refusing treatment. At the same time, Officer Allen responded to a 911 call requesting assistance at May’s residence. The EMTs told Allen that May had “been a little combative to herself” and was upset. Allen entered May’s bedroom to investigate and found her hair in disarray and decided to transport her to a hospital for a psychological evaluation. Allen instructed the EMTs to leave the bedroom and then locked himself in the bedroom with May. He instructed her to take off her nightgown and put on suitable clothes to go to the hospital. May became upset and began to cry, but Allen insisted that she change, even pulling on her nightgown to remove it. May put on shorts, but Allen insisted she take them off and first put on undergarments. May refused, but Allen patted his gun and told her “yes you will.” Allen remained in the locked room with May for 15 to 20 minutes, while her sister was outside requesting the door be opened. When they emerged from the bedroom, Allen stated that he was taking May to the hospital and she again objected. Allen escorted May to the emergency room and asked hospital staff about May’s prior diagnoses before leaving. May was subsequently released from the hospital after no more than two hours. May brought suit alleging unlawful seizure, false imprisonment, assault and battery, and invasion of privacy. The district court granted Officer Allen’s motion for summary judgment based on qualified immunity

Holding: The Eleventh Circuit affirmed the district court’s finding of qualified immunity for Allen’s decision to seize May for a mental health evaluation, but reversed and remanded to determine whether the manner of the seizure unreasonably violated May’s privacy interests.

Notable Point:

Manner of Seizure: The court explained that searches conducted in an abusive fashion may violate the Constitution. The court emphasized that if Officer Allen’s alleged conduct were proven, it would be “representative of the type of unnecessarily invasive and demeaning intrusion that is undoubtedly within the sphere of what the Fourth Amendment prohibits.”

Found in DMHL Volume 35, Issue 4