Duncan et al v. Smith et al

Filing 92

ORDER granting in part and denying in part 29 Motion to Dismiss; granting in part and denying in part 43 Motion to Dismiss; denying 75 Motion to Amend/Correct; finding as moot 76 Motion for Preliminary Injunction. Signed by Judge D. P. Marshall Jr. on 3/30/12. (kpr)

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

D ARLA DUNCAN, as gu ardian of
John athan Duncan, on behalf of
Johnathan D u n can and all others similarly
situated; DARREN NORMAN, on behalf of
himself and all others similarly situated; and
WYNONA RANDOLPH , temporary guardian
of Kristian Smith, on behalf of Kristian Smith
and all others similarly situated

v.

PLAIN TIFFS

No.4:11-cv-325-DPM

CHARLES SMITH, individually and in his
official capacity as p olicy maker of the
Arkansas State Hos pital; STEVE DOMAN,
ind ividually and in his official capacity as
policy maker of the Arkansas State Hospital;
JAIVIE S SCOGGINS, individually and in his
official capacity as p olicy maker of the Arkansas
State Hospital; JOHN SELIG, individually and
in his official capacity as Director of the
Department of Human Services; JAMES GREEN,
D irector of DDS, in his individual and in his official
capacity; V ERONICA W ILLIAMS; in her official
and individual cap acities; and ANN TUCKER, in
her official and individual capacities

DEFENDANT S

ORDER
Johnathan D uncan, Darren Norman, and Kristian Smith are all current
or fonner Arkansas State Hospital patients. They say that officials from the
State H ospital and the Department of Human Services violated their rights

under Title II of the Americans with Disabilities Act, Section 504 of the
Rehabilitation Act of 1973, and the United States Constitution. The Plaintiffs
seek monetary, injunctive, and declaratory relief. Four motions are pending:
two motions to dismiss, a motion to amend, and a motion for preliminary
injuncti on .

1. Darren Norman. In ruling on a Rule 12(b)(6) motion to dismiss, this
Court" accept[s] all facts in the complaint as true and grant[s] all reasonable
inferences in favor of [Duncan, Norman, and Randolph]." Central Platte

Natural Resources Dist. v.

u.s. Dept. ofAgriculture, 643 F.3d 1142, 1148 (8th Cir.

2011). The fact that a complaint" does not state with precision all elements
that give rise to a legal basis for recovery" is not grounds for dismissal.

Schmedding v. Tnemec Co., Inc., 187 F.3d 862, 864 (8th Cir. 1999).

But

something" more than an unadorned, the-defendant-unlawfully-harmed-me
acc~sation"

is required. Ashcroft v. Iqbal, 556 U.s. 662, _ , 129 S.Ct. 1937, 1949

(2009).
The amended complaint states that "Darren Norman is a person with
a mental disability who was committed to the forensic unit, but who was
released." Document No. 60, at 1. While he was a patient at the State Hospital,

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Norman endured verbal and physical abuse, was denied timely services, and
was inappropriately placed. Beyond that, the amended complaint is void of
details about Norman. The Court does not know which Defendants allegedly
violated Norman's rights, or when, where, and how they did so.

The

proposed third amended complaint, Document No. 75-1, adds no details about
Norman.

The allegations here are precisely the sort of "unadorned"

accusations that Iqbal proscribes. Darren Norman's claims are therefore
dismissed without prejudice for failure to state a claim. FED. R. ClV. P. 8(a)(2).
2. Title II and the Rehabilitation Act of 1973. Duncan and Smith
allege that the Defendants violated the ADA and the Rehabilitation Act by
failing to place them in the least restrictive environment appropriate to their
needs. As to D uncan, this claim fails as a matter of law. Claims based on
medical treatment decisions cannot be brought under either the ADA or the
Rehabilitation Act. Burger v. Blooomberg, 418 F.3d 882, 883 (8th Cir. 2005) (per

curiam). For example, whether to place mentally ill patients under suicide
watch is a medical treatment decision. See generally Hott v. Hennepin County,

Minnesota, 260 F.3d 901, 905 (8th Cir. 2001); see also Shelton v. Arkansas

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Department of Human Services, No. 4:10-cv-1519-JLH, 2011 WL 1193026, at*3
(E.D. Ark. 29 Mar. 2011).
At issue in Duncan's case is the Defendants' decision to place him in
Unit 3 Lower at the State Hospital- a unit opened in 2007 to provide
treatment for adolescent males with co-occurring mental illness and
developmental disability.

Duncan argues that this placement was too

restrictive. But "the State generally may rely on the reasonable assessments
of its own professionals in determining whether an individual meets the
essential eligibility requirements for habitation in a community-based
program. Absent such qualification, it would be inappropriate to remove a
patient from the more restrictive setting." Olmstead v. Zimring, 527 U.S. 581,
602 (1999) (quotation Olnitted).
Duncan also offers no authority for the proposition that this placement
decision is not a medical treatment decision; and this strikes the Court as a
decision requiring some professional medical judgment. Duncan was not just
assigned to a particular room on a certain floor in a hospital. His diagnosis
determined where he was assigned. This decision is like deciding to put a
patient in a card iac intensive care unit.

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The treatment is driving the

placement. Burger therefore applies and binds this Court. Duncan's ADA
and Rehabilitation Act claims must be dismissed because they are premised
on the medical decision to place Duncan in Unit 3 Lower.
As to Kristian Smith, however, it is not clear at this point that Burger
applies or bars his Title II and Rehabilitation Act claims. Smith's claims here
are based on the fact that the State Hospital failed to find bed space for him
within a reasonable time. As a result, Smith had to remain in the Pulaski
County jail, where he allegedly was not receiving appropriate medical care.
Unlike the decision to place a patient in a particular unit, the failure to place
someone in a timely manner is not necessarily an active decision about
medical treatment. Instead, it is often the type of passive decision that occurs
when hospital facilities, state employees, and resource dollars are all stretched
too thin. The Cou rt therefore declines to hold, as a matter of law, that Burger
bars Smith's ADA and Rehabilitation Act claims at this stage.
What about immunity? Arkansas has waived its sovereign immunity
under § 504 of the Rehabilitation Act. Jim C. v. United States, 235 F.3d 1079
(8th Cir. 2000) (en bane). But sovereign imlTIunity under the ADA is more
complicated.

"[I]nsofar as Title II creates a private cause of action for

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damages against the States for conduct that actually violates the Fourteenth
Amendment, Title II validly abrogates state sovereign immunity." United

States v. Georgia, 546 U.s. 151, 159 (2006) (emphasis original). Determining
whether sovereign immunity bars Smith's Title II claims therefore requires
analysis" on a claim-by-claim basis[.]" Ibid.
Among other things, Smith alleges that state officials' failure to timely
provid e him with needed psychiatric services in an appropriate environment
constituted deliberate indifference to his serious medical needs in violation
of the Fourteenth Amendment. His claim for money damages against State
agencies and officials under Title II is therefore based, at least in part, on
conduct that (he says) independently violated the Fourteenth Amendment.
The Court therefore cannot hold, at this early stage, that sovereign immunity
bars Smith's Title II claim.
Similarly, the Court cannot say at this point that Smith's ADA and
Rehabilitation Act claims are barred by qualified immunity. Jones v. McNeese,
_

F.3d _ , _

,2012 WL 1033539, at *2 (8th Cir. 29 Mar. 2012). Taking the

limited record presented thus far in the light most favorable to Smith, "it is
quite plausible that the alleged deliberate refusal of [State Hospital] officials

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to accommodate [Smith's] disability-related needs ... constituted exclusion
from participation in or ... denial of the benefits of the [Hospital's] services,
programs, or activities." Georgia, 546 U.S. at 157 (quotations and alterations
omitted). And Smith's rights under the Acts were clearly established at the
time of the alleged violations. See, e.g., Pennsylvania Department of Corrections

v. Yeskey, 524 U.S. 206, 210 (1998) (ADA protects state prisoners). The
particulars of the immunity issues can be more clearly articulated - and more
thoroughly supported and briefed - at a later stage on a more complete
record. They should be. But at this point, Defendants' motion to dismiss
Smith's Title II and Rehabilitation Act claims must be denied without
prejudice.
3. Constitutional Claims. Duncan and Smith also allege that the

Defendants violated their constitutional rights without due process of law.

Document No. 60, at 7-8. Generally, claims for monetary damages against a
state or state employees acting in their official capacities are barred by the
Eleventh Amend ment. Treleven v. University of Minnesota, 73 F.3d 816, 818
(8th Cir. 1996). And the Plaintiffs admit that they are not seeking monetary
relief against the Arkansas agencies or employees in their official capacities

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under § 1983. Document No. 45, at 1; see also Will v. Michigan Department of

State Police, 491 U.s. 58, 71 (1989) (suit against employees acting in their
official capacities is no different from a suit against the State itself). To the
extent that Duncan and Smith p lead any official-capacity constitutional claims
for monetary damages, those claims must therefore be dismissed.
The individual-capacity Defendants also argue that, as a matter of law,
qualified immunity bars the due-process claims against them. Government
officials performing discretionary functions are immune from suit so long as
they do not violate a clearly established constitutional right. Wallingford v.

Olson, 592 F.3d 888, 892 (8th Cir. 2010). The Defendants here are half right:
they are entitled to qualified immunity on Duncan's due-process claims, but
not on Smith's.
Duncan's parents voluntarily admitted him to the State Hospital; and
the law is not clearly established in favor of due-process rights on the part of
voluntarily admitted patients. Kennedy v. Schafer, 71 F.3d 292, 294 (8th Cir.

1995); see also Shelton, 2011 WL 1193026, at *4. The Defendants are therefore
entitled to qualified immunity on Duncan's constitutional claims.

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Duncan argues that, although his parents voluntarily admitted him, he
was " u n able to leave the Arkansas State Hospital voluntarily without losing
his DDS waiver." Document No. 60, at 4. He therefore argues that, like in the
Kennedy case, a fact issue exists about whether he was voluntarily at the State

Hospital. The Court disagrees. In Kennedy, the minor's parents voluntarily
admitted her to a Missouri psychiatric hospital. A minor in this situation in
Missouri can usually be released at her parents' request. But if the head of the
facility determines that the patient presents a likelihood of serious physical
harm to herself, then that administrator can refuse the release. Kennedy,71
F.3d at 294~95. Because the hospital placed the minor patient under suicide
watch, the Kennedy Court found that it was possible that" the situation that
she was in was sufficiently analogous to incarceration or institutionalization
to give rise to an affirmative duty to protect." 71 F.3d at 295 (quotations
omitted).
Duncan's situation is different from the one presented in Kennedy.
There, a Missouri statute made it possible for the hospital to hold the patient
against her will and against her parents' wishes. Here, Duncan says that the
long waiting list for community services made it impractical for his parents

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to voluntarily check him out of the State Hospital. This impracticality is a far
cry from the potential impossibility of removing the childin Kennedy from the
hospital. The Court therefore declines to hold, as a matter of law, that Duncan
was an involuntary patient at the State Hospital during the time at issue.
Becau se Duncan was voluntarily admitted, and no State action had rendered
him a de facto involuntary patient, there was no clearly established due­
process right. Th e individual-capacity Defendants are entitled to qualified
immunity; and D uncan's constitutional claims are dismissed with prejudice.
Kristian Sm ith's situation is different. He is not a voluntary patient at
the State I-Iospital. Smith is a state-court defendant found unfit to proceed
and therefore involuntarily committed pursuant to ARK. CODE ANN. § 5-2-310.
"[T]he deprivation of liberty [that] triggers the protections of the Due Process
Clause is the State's affirmative act of restraining [Smith's] freedom to act on
his own behalf - through incarceration, institutionalization, or other similar
restraint of personal liberty." Kennedy, 71 F.3d at 294. Smith has a clearly
established righ t to due process because the State has involuntarily
institutionalized h im. His due-process claims are not barred by qualified

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immunity; and he may proceed with those claims against the individual­
capacity D efendants.

4. Injunctive Relief. Duncan and Smith also ask for an injunction to
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require the Defendants to provide mentally ill or disabled patients with care
in the least restrictive environment appropriate to their needs[.]" Document
No. 60, at 11. Th ey do not have standing to request this relief for all mentally

ill or disabled patients; but they are entitled to seek this equitable relief on

their own behalf u nder Ex parte Young. 209 US. 123 (1908); see also Kentucky

v. Graham, 473 US. 159, 167 n.14 (official-capacity actions for prospective relief
not treated as actions against the State itself).
D u ncan's and Smith's claims for injunctive relief are nonetheless moot.
An admittedly

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appropriate" treatment plan

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designed to place young

Duncan in the community" has been implemented; and Unit 3 Lower no
longer h ou ses dually diagnosed adolescents at the State Hospital. Kristian
Smith was admitted for treatment at the State Hospital on 19 January 2012; he
is no longer being held in the Pulaski County Jail. Document No. 91, at 1.
Because Dtmcan and Smith have received the prospective relief they sought

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on their o\vn behalf, their claims for injunctive relief are dismissed as moot.
Similarly, Sn1ith's motion for a preliminary injunction is denied as moot.

***
IvIotions to dismiss, Document Nos. 29 & 43, granted in part and denied
in part. All Norman's claims are dismissed without prejudice; all of Duncan's
claims are

dismissed

with prejudice; and Smith's official-capacity

constitutional claims are dismissed with prejudice. Smith's Title II and ADA
claims, as well as his individual-capacity constitutional claims, survive. The
second motion for preliminary injunction, Document No. 76, is denied as moot.
Smith's counsel recently withdrew, Document No. 89, and the Court
ordered Smith's guardian to secure new counsel promptly. In light of these
events, the Court denies without prejudice the second motion to amend,
Document No. 75. When Smith's new counsel appears, he or she will still have

until the end of July to request any pleading amendment. Document No. 73.
So Ordered.

D.P. Marshall Jr.

United States District Judge

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