United States of America v. Tabari

Filing 101

ORDER, denying Respondent Tabari's Motion to Dismiss for Lack of Jurisdiction 46 , Motion for Judgment on the Pleadings 43 , and Motion to Strike 67 ; denying United States of America's Motion for Summary Judgment 68 ; granting United States of America leave to file a Motion for Independent Psychiatric Examination, the Government shall file its Motion within 10 days of the date of this Order. Signed by Judge James A Teilborg on 7/22/11.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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United States of America,
Petitioner,

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vs.

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Jareer A. Tabari,
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Respondent.
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No. CV 10-1054-PHX-JAT
ORDER

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Pending before the Court are Respondent Jareer A. Tabari’s Motion for Judgment on

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the Pleadings (Doc. 43), Motion to Dismiss for Lack of Jurisdiction (Doc. 46), Motion to

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Strike Plaintiff’s Separate Statement of Facts in Support of Plaintiff’s Response in

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Opposition to Motion to Dismiss for Lack of Subject Matter Jurisdiction (Doc. 67), and

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Petitioner United States of America’s (“the Government”) Motion for Summary Judgment

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and Alternative Motion for an Independent Medical Psychiatric Examination (Doc. 68). The

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Court now rules on the motions.

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I.

Background

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A. Criminal and Immigration Proceedings

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In the 1970’s, Tabari came to the United States from Israel. In 1990, Tabari became

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a lawful permanent resident. On May 12, 1994, Tabari was convicted of Trespass in

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California and sentenced to nine days in jail. On March 14, 2002, Tabari was convicted of

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Disorderly Conduct, Soliciting Lewd Act in California and was sentenced to ten days in jail

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and three years of probation. On May 14, 2004, Tabari pleaded guilty to the felony offense

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of Resisting an Executive Officer. He was sentenced to six months in jail and three years of

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probation. Shortly after his release from jail, Tabari violated the terms of his parole and was

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sentenced to two years in the California penal system.

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On August 17, 2006, the California Superior Court found Tabari mentally incompetent

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to stand trial and ordered him to undergo treatment. On December 7, 2007, following

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treatment that included the involuntary administration of antipsychotic drugs, the Superior

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Court found Tabari restored to competency.

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On November 17, 2008, the Department of Homeland security (“DHS”),

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Immigration and Customs Enforcement (“ICE”), took custody of Tabari after his release

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from California state prison. ICE transferred Tabari to the Florence Service Processing

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Center in Florence, Arizona. ICE issued and served a Notice to Appear, alleging the 2004

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criminal conviction as a ground for removal under 8 U.S.C. § 1227(a)(2)(A)(iii).

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On February 23, 2009, Tabari had an individual hearing before the immigration court.

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The immigration judge ordered Tabari removed to Israel and denied Tabari’s applications

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for asylum, withholding of removal, and deferral of removal under Article III of the

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Convention Against Torture. Tabari reserved his right to appeal, but failed to file an appeal.

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The immigration judge’s order therefore became administratively final.

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B. Mental Health History

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On September 5, 2008, Tabari was diagnosed with Psychotic Disorder NOS by a

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California Mental Health Examination. Tabari’s medical file also contained diagnoses of

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schizophrenia and bipolar disorder. On June 5, 2009, Tabari was admitted to Sonora

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Behavioral Health Hospital for psychiatric evaluation.

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On August 14, 2009, after an expedited evaluation, Dr. Jack Potts opined that Tabari

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suffers from schizophrenia or schizoaffective disorder with moments of cooperation. On

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March 17, 2010, after two brief examinations, Dr. Ronald Segal opined that Tabari was

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gravely disabled and posed a risk of harm to other people due to his mental illness. On

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August 1, 2010, after reviewing Tabari’s medical records, but not personally examining him,
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Dr. Tariq Ghafoor opined that Tabari most likely suffers from schizophrenia, paranoid type,

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with schizoaffective disorder as secondary consideration with antisocial, narcissistic, and

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histrionic personality traits.

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II.

Respondent Tabari’s Motions

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A. Motion to Dismiss for Lack of Jurisdiction and Motion to Strike

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Tabari argues that this Court lacks jurisdiction over the Government’s Petition

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because the Government’s request to involuntarily medicate Tabari does not rely on a

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specific provision of the Constitution or federal law. But Tabari’s arguments ignore the fact

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that the United States of America, as Petitioner, commenced this case. 28 U.S.C. §1345

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provides, “Except as otherwise provided by Act of Congress, the district courts shall have

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original jurisdiction of all civil actions, suits or proceedings commenced by the United States,

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or by any agency or officer thereof expressly authorized to sue by Act of Congress.”

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Tabari has not pointed to an Act of Congress that would divest this Court of its

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jurisdiction over a case instituted by the United States. Tabari may believe that this Court

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does not have the authority to do what the Government asks, but that does not mean that this

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Court lacks jurisdiction over this matter. The Court can resolve quickly Tabari’s Motion to

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Dismiss. The Court has jurisdiction over this case pursuant to 28 U.S.C. §1345 because the

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United States commenced this action. The Court therefore denies Tabari’s Motion to

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Dismiss for Lack of Jurisdiction (Doc. 46).

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Tabari has filed a Motion to Strike (Doc. 67) the separate Statement of Facts that the

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Government filed along with its Response to the Motion to Dismiss. Tabari argues that

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neither the Federal Rules of Civil Procedure nor this Court’s Local Rules provide for the

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filing of a separate statement of facts in support of a response in opposition to a motion to

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dismiss for lack of subject matter jurisdiction.

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The Court notes that it can resolve factual issues when deciding a motion to dismiss

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for lack of jurisdiction. Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983).

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The Court therefore cannot say categorically that a statement of facts in support of a response

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to a motion to dismiss for lack of subject matter jurisdiction is never appropriate. But the
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Court need not address the propriety of the separate statement of facts because the Court did

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not review the facts while deciding the Motion to Dismiss. The Court therefore denies the

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Motion to Strike as moot.

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B. Motion for Judgment on the Pleadings

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1. Legal Standard

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Federal Rule of Civil Procedure 12(c) is “functionally identical” to Rule 12(b)(6).

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The same legal standard therefore applies to motions brought under either rule. Cafasso,

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U.S. ex rel. v. Gen. Dynamics C4 Sys., - - F.3d - -, 2011 WL 1053366, *11 n.4 (9th Cir.

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March 24, 2011); Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir.

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1989)(“The principal difference between motions filed pursuant to Rule 12(b) and Rule 12(c)

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is the time of filing. Because the motions are functionally identical, the same standard of

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review applicable to a Rule 12(b) motion applies to its Rule 12(c) analog.”).

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The standard for deciding Rule 12(b)(6) and Rule 12(c) motions has evolved since the

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Supreme Court’s recent decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)

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and Ashcroft v. Iqbal, - - U.S. - -, 129 S.Ct. 1937 (2009).1 To survive a motion for failure to

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state a claim, a complaint must meet the requirements of Rule 8(a)(2). Rule 8(a)(2) requires

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a “short and plain statement of the claim showing that the pleader is entitled to relief,” so that

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the defendant has “fair notice of what the . . . claim is and the grounds upon which it rests.”

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Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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Although a complaint attacked for failure to state a claim does not need detailed

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factual allegations, the pleader’s obligation to provide the grounds for relief requires “more

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than labels and conclusions, and a formulaic recitation of the elements of a cause of action

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will not do.” Twombly, 550 U.S. at 555 (internal citations omitted). The factual allegations

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of the complaint must be sufficient to raise a right to relief above a speculative level. Id.

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Rule 8(a)(2) “requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief.

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The Ninth Circuit Court of Appeals has applied Iqbal to Rule 12(c) motions. Cafasso
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Without some factual allegation in the complaint, it is hard to see how a claimant could

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satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but also

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‘grounds’ on which the claim rests.” Id. (citing 5 C. Wright & A. Miller, Federal Practice

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and Procedure §1202, pp. 94, 95(3d ed. 2004)).

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Rule 8’s pleading standard demands more than “an unadorned, the-defendant-

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unlawfully-harmed-me accusation.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at

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555). A complaint that offers nothing more than naked assertions will not suffice. To

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survive a motion to dismiss, a complaint must contain sufficient factual matter, which, if

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accepted as true, states a claim to relief that is “plausible on its face.” Iqbal, 129 S.Ct. at

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1949. Facial plausibility exists if the pleader pleads factual content that allows the court to

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draw the reasonable inference that the defendant is liable for the misconduct alleged. Id.

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Plausibility does not equal “probability,” but plausibility requires more than a sheer

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possibility that a defendant has acted unlawfully. Id. “Where a complaint pleads facts that

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are ‘merely consistent’ with a defendant’s liability, it ‘stops short of the line between

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possibility and plausibility of ‘entitlement to relief.’” Id. (citing Twombly, 550 U.S. at 557).

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In deciding a motion to dismiss, the Court must construe the facts alleged in the

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complaint in the light most favorable to the drafter of the complaint and must accept all

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well-pleaded factual allegations as true. See Shwarz v. United States, 234 F.3d 428, 435 (9th

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Cir. 2000). Nonetheless, the Court does not have to accept as true a legal conclusion

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couched as a factual allegation. Papasan v. Allain, 478 U.S. 265, 286 (1986). The Court may

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dismiss a complaint for two reasons: 1) lack of a cognizable legal theory and 2) insufficient

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facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d

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696, 699 (9th Cir. 1990).

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2. Analysis and Conclusion

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As set out above, the Court can grant a judgment on the pleadings for two reasons: 1)

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lack of a cognizable legal theory and 2) insufficient facts alleged under a cognizable legal

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theory. Balistreri, 901 F.2d at 699. Tabari’s arguments seem to urge the Court to grant the

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Motion for the first reason, but could be directed toward the second reason as well.
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Tabari argues the Court must dismiss the Government’s Petition because the

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Government has not identified any statutory or regulatory scheme that gives ICE the

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authority to forcibly medicate him.2 ICE’s current “procedure” for involuntarily medicating

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detainees is to seek court approval. ICE does not have a procedure at the administrative

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level.

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Tabari correctly notes that the cases addressing whether to involuntarily medicate

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happen to have arisen in the context of reviewing set administrative or state procedures. But

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that does not mean that the Government cannot petition this Court to authorize forced

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medication in the absence of a specific administrative procedure if forced medication would

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be in the best medical interests of the respondent and in the best interests of others under the

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Government’s supervision. ICE’s policy of seeking court approval for forced medication

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arguably might provide more due process to a detainee than an administrative-level policy

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or procedure.

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The Court finds that it has the power to grant the relief requested by the Government

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if the Government meets the applicable standard, which the Court sets forth below. Because

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the Court cannot say that the Government could never prevail on the facts as alleged in the

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Petition, the Court will deny Tabari’s Motion for Judgment on the Pleadings.

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III.

Government’s Motion for Summary Judgment

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A. Legal Standard

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Summary judgment is appropriate when “there is no genuine dispute as to any

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material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).

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A party asserting that a fact cannot be or is genuinely disputed must support that assertion

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by “citing to particular parts of materials in the record,” including depositions, affidavits,

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interrogatory answers or other materials, or by “showing that materials cited do not establish

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the absence or presence of a genuine dispute, or that an adverse party cannot produce

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Tabari makes other arguments that are not appropriate for a Judgment on the
Pleadings in the pending case, e.g, the validity of Tabari’s continued detention. The Court
therefore will not address those arguments here.
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admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). Thus, summary judgment

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is mandated “against a party who fails to make a showing sufficient to establish the existence

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of an element essential to that party’s case, and on which that party will bear the burden of

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proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

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Initially, the movant bears the burden of pointing out to the Court the basis for the

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motion and the elements of the causes of action upon which the non-movant will be unable

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to establish a genuine issue of material fact. Id. at 323. The burden then shifts to the non-

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movant to establish the existence of material fact. Id. The non-movant “must do more than

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simply show that there is some metaphysical doubt as to the material facts” by “com[ing]

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forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec.

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Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (quoting Fed.R.Civ.P. 56(e)

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(1963) (amended 2010)). A dispute about a fact is “genuine” if the evidence is such that a

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reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby,

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Inc., 477 U.S. 242, 248 (1986). The non-movant’s bare assertions, standing alone, are

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insufficient to create a material issue of fact and defeat a motion for summary judgment. Id.

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at 247–48. However, in the summary judgment context, the Court construes all disputed

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facts in the light most favorable to the non-moving party. Ellison v. Robertson, 357 F.3d

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1072, 1075 (9th Cir. 2004).

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B. Analysis and Conclusion

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In ruling on the Motion for Summary Judgment, the Court first must decide the proper

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standard to apply for the involuntary medication of a detainee in an immigration facility. The

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Court then must decide whether the Government has met that standard as a matter of law.

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Individuals undisputedly have a significant, constitutionally protected liberty interest

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in avoiding the unwanted administration of antipsychotic drugs. Washington v. Harper, 494

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U.S. 210, 221 (1990). The “forcible injection of medication into a nonconsenting person’s

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body represents a substantial interference with that person’s liberty.”

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Nonetheless, forced medication may by appropriate under certain circumstances.

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Id. at 228.

The parties do not cite any cases that specifically address when ICE can involuntarily
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medicate a detainee, and the Court did not find any such cases. The Government argues that

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the standards established in Harper should apply. Tabari argues that the Harper standards

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do not apply because he is not a state prisoner convicted of a crime.

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In Harper, the Supreme Court addressed whether a Washington state prison policy

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for forcibly medicating prisoners provided adequate due process. After balancing the state’s

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interests in prisoner and staff safety against prisoners’ constitutional rights to liberty, the

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Supreme Court determined that the Washington Special Offender Center’s policy comported

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with constitutional requirements by affording sufficient due process. Id. at 224. The

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Supreme Court held that due process permits involuntary treatment with antipsychotic drugs

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for serious mental illness if an inmate is dangerous to himself or others and if the treatment

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is in the inmate’s best medical interest. Id. at 227.

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At least one Circuit Court has applied the Harper standards in a civil setting. In

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Jurasek v. Utah State Hosp., 158 F.3d 506 (10th Cir. 1998), the Tenth Circuit Court of

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Appeals reviewed the §1983 claims of a civilly committed man who objected to the state

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hospital’s involuntary treatment of him with psychotropic drugs. The Court of Appeals noted

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that while an individual has a constitutional right to be free from involuntary medication,

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state institutions also have an interest in preventing individuals from harming themselves or

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others residing or working in the institution. Id. at 510.

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The Jurasek court found that although the case before it differed from Harper because

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the plaintiff was a civilly committed patient and not a prison inmate, the Harper standards

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nonetheless should control. Id. at 511 (“We conclude the standards established in Harper

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for involuntarily medicating prisoners strike the appropriate balance.”). The court held that

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the Due Process Clause allows a state hospital to forcibly drug a mentally ill patient who is

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incompetent to make his own medical decisions if the patient is dangerous to himself or

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others and the treatment is in the patient’s medical interests. Id.

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The Court finds that the Harper standards should apply here as well, even though

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Tabari is a civil detainee, not an inmate. Although the immigration detention facility is not

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a state prison, it has the same concerns for the safety of its detainees and employees as a
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prison. The Court finds that the Harper standards strike the right balance between the

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facility’s interests and Tabari’s liberty interests.

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The Court finds the circumstances of Sell v. United States, 539 U.S. 166 (2003) less

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analogous and therefore will not apply the standards set out in that case. In Sell, the Supreme

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Court analyzed the proper standards for involuntarily medicating mentally ill pretrial

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detainees in order to restore them to competency for trial. The goals of the Government in

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this case are more similar to the prison’s goals in Harper than the goal of rendering someone

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competent to stand trial.

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The Sell court itself pointed out that courts need not consider the Sell standards if

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involuntary medication is warranted for a different purpose, such as reasons relating to an

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individual’s dangerousness to himself or others or the individual’s health risks. Id. at 181-82

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(citing Harper, 494 U.S. at 225-26). “There are often strong reasons for a court to determine

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whether forced administration of drugs can be justified on these alternative grounds before

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turning to the trial competence question.” Id. at 182.

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The Court therefore holds that the Harper standards apply here. The Government can

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prevail on its Petition to involuntarily medicate Tabari with antipsychotic drugs if it

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establishes that: 1) Tabari suffers from a serious mental illness; 2) Tabari is a danger to

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himself or others; and 3) treatment is in his medical interest. The Court, however, will depart

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from Harper in one respect. Because the Court, not medical professionals, will be making

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the determination regarding forced medication, the Government must offer clear and

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convincing proof of each of the three elements. See Harper, 494 U.S. at 235 (rejecting clear

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and convincing burden because medical personnel were making the judgment required by

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the regulations at issue); U.S. v. Ruiz-Gaxiola, 623 F.3d 684, 692 (9th Cir. 2010)(joining all

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other circuits in requiring clear and convincing proof for Sell hearings and stating

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“[A]lthough the Supreme Court rejected the contention that the clear and convincing standard

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was required for Harper hearings conducted by medical professionals, the more error-prone

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analysis involved in a Sell hearing conducted by judicial officers, calls for a more stringent

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burden of proof.”)(internal citations omitted).
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The Court now turns to deciding whether the Government has met those standards

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with clear and convincing proof as a matter of law or whether the Court should deny the

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Motion and hold a hearing on the Petition. This case presents an unusual situation because

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Respondent’s counsel have not received cooperation from Tabari, who, at times, has refused

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even to speak with his counsel.

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Tabari’s lack of cooperation has made it difficult for counsel to oppose the Motion for

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Summary Judgment. Counsel for Tabari also points out that the Government has not

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presented any “fresh” medical opinions regarding Tabari’s current mental status and

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dangerousness to himself and others. On the other hand, the Court acknowledges the validity

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of the Government’s arguments regarding opposing counsel’s failure to obtain expert

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opinions and other controverting evidence. Nonetheless, given the importance of the liberty

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interests at stake, the Court finds a hearing is warranted. The Court therefore will deny the

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Motion for Summary Judgment, but does not hold that the Government could never prevail

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at the summary judgment stage in a forced medication proceeding for an immigration

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detainee.

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IV.

Alternative Motion for Independent Psychiatric Exam

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As an alternative to granting its Motion for Summary Judgment, the Government asks

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the Court to order an independent psychiatric examination. Although discovery has closed,

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the Court finds that an independent examination could help the Court to assess Tabari’s

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current mental condition. The Court therefore will allow the Government to file a Motion

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for an Independent Medical Examination pursuant to Civil Rule of Civil Procedure 15(a)(2).

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The Court will set the time for the hearing on the Petition after it rules on the forthcoming

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Motion for Independent Medical Examination. The Court also notes that if it grants the

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forthcoming Motion, it will not allow additional dispositive motion briefing.

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Accordingly,

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IT IS ORDERED DENYING Respondent Tabari’s Motion to Dismiss for Lack of

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Jurisdiction (Doc. 46), Motion for Judgment on the Pleadings (Doc. 43), and Motion to Strike

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(Doc. 67).
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IT IS FURTHER ORDERED DENYING United States of America’s Motion for
Summary Judgment (Doc. 68).

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IT IS FURTHER ORDERED GRANTING United States of America leave to file

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a Motion for Independent Psychiatric Examination pursuant to Federal Rule of Civil

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Procedure 35. The Government shall file its Motion within ten (10) days of the date of this

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Order.

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DATED this 22nd day of July, 2011.

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