United States of America v. Thunder

Filing 30

ORDER: IT IS HEREBY ORDERED that: 1. The Report and Recommendation of the Magistrate Judge is ADOPTED 16 ; and 2. The Government's Petition is DENIED 1 . (Written Opinion) Signed by The Hon. Paul A. Magnuson on 05/09/2017. (LLM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
United States of America,

Civ. No. 16-3019 (PAM/FLN)

Petitioner,
v.

MEMORANDUM AND ORDER

Patrick Brown Thunder,
Respondent.

This matter is before the Court on the Report and Recommendation (“R&R”) of
United States Magistrate Judge Franklin L. Noel dated February 24, 2017. In the R&R,
Magistrate Judge Noel recommends denying the Government’s Petition to Determine
Present Mental Condition of an Imprisoned Person under 18 U.S.C. § 4245. Judge Noel
assumed without deciding that Respondent Patrick Brown Thunder is suffering from
some kind of mental disease or defect, but concluded that the Government did not meet
its burden of proving that Thunder is in need of custody for care or treatment.
The Government filed a timely objection to Judge Noel’s conclusion that Thunder
is not in need of custody for care or treatment. According to statute, the Court must
conduct a de novo review of any portion of the R&R to which specific objections are
made. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b); D. Minn. L.R. 72.2(b). Based on
that de novo review, the Court adopts the R&R.
DISCUSSION
Under 18 U.S.C. § 4245, a federal prisoner may not be transferred to a mental
hospital for care and treatment without the prisoner’s consent or a court order. If the

prisoner objects to a transfer, the court must conduct a hearing to determine “if there is
reasonable cause to believe that the person may presently be suffering from a mental
disease or defect for the treatment of which he is in need of custody for care or treatment
in a suitable facility.” 18 U.S.C. § 4245(a). “If, after the hearing, the court finds by a
preponderance of the evidence that the person is presently suffering from a mental
disease or defect for treatment of which he is in need of custody for care or treatment in a
suitable facility, the court shall commit the person to the custody of the Attorney
General.” Id. § 4245(d).
Although § 4245 does not define when a prisoner is in need of custody for care or
treatment, a prisoner is in need if treatment is “more than merely beneficial” to the
prisoner. United States v. Horne, 955 F. Supp. 1141, 1147 (D. Minn. 1997). For
example, a prisoner is in need of treatment if he would pose a danger to himself or others
if placed in the general prison population. Id. at 1146. “A finding of dangerousness,
however, is not required.” United States v. Riley, No. 08cv171, 2008 WL 974839, at *3
(D. Minn. Apr. 8, 2008). A prisoner may be in need of treatment if he is unable to
function in the general population of a prison because of a mental disease or defect. Id.
A prisoner may also be in need of treatment where a diagnosis is properly supported by
psychological or psychiatric testimony. Horne, 955 F. Supp. at 1146.
The Government did not meet its burden of proving that Thunder is unable to
function in the general prison population. After the district court sentenced Thunder in
2013, FMC-Rochester staff conducted an initial mental health screening and determined
that Thunder did not have any mental health issues. (Gov’t Ex. 1 (Docket No. 14) at 22

3.)

Between April 2013 and November 2015, Thunder was stable in the general

population. (Id.) In November 2015, Thunder had the only fight he has ever been
involved in during his incarceration. (Gov’t Ex. 2 at 1.) Thunder took full responsibility
and explained:
It led to over a year ago when [my cellmate] first moved in. [He g]ot into it
with everyone. It is his hygiene. People get tired of things. I was not trying
to be an enforcer. [I] asked him to pick things up. He struck me. We both
hit each other. He’s been telling people what we have been charged for. He
has paperwork on our crimes . . . I made a mistake and I learned from it.
Yes, we were fighting.
(Id. at 2-3.)

A prison psychology intern interviewed Thunder after the fight and

concluded that Thunder has “no significant mental health issues” and was a “low” threat
to others. (Gov’t Ex. 3.)
On May 27, 2016, Dr. Jason Gabel conducted a clinical intervention with Thunder
and concluded that Thunder “continued to function adequately on the open unit despite
ongoing evidence of delusional beliefs.” (Gov’t Ex. 4 at 1.) Although Thunder “denied
any interest in psychiatric medication or speaking with a psychiatrist,” he agreed to move
to a mental health unit for further evaluation. (Id. at 2.) On July 19, 2016, Dr. John
McKenzie met Thunder for the first time. During the encounter, Thunder denied having
a mental illness, refused to accept psychological treatment, and did not understand why
he had been moved to solitary confinement the day before. (Gov’t Ex. 5.) Dr. Shelly
Stanton conducted a clinical evaluation the next day, diagnosed Thunder with
schizophrenia, and concluded that Thunder was at risk of harming others. (Gov’t Ex. 6 at
4.) Thunder continued to deny he had a mental illness. (Id.)
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Since prison staff moved Thunder to the mental health unit, Thunder has made
some vague, general threats of violence, but these threats stem from his poor relationship
with Dr. McKenzie, his forced meetings with mental health professionals, and his
frustration concerning his solitary confinement. Dr. McKenzie’s August 2016 report
even indicates that Thunder logically reasoned that he did not want to harm anyone
because he did not want to “lose any more good time.” (Gov’t Ex. 1.) In September
2016, Thunder insulted McKenzie and a subsequent disciplinary report indicated that
Thunder was “competent to participate in disciplinary proceedings, and he should be
considered responsible for his behavior at the time of the incident.” (Gov’t Ex. 7 at
BOP_001465.) Judge Noel also observed Thunder testify at the evidentiary hearing that
he did not “think anybody like [him] should be” in solitary confinement. (Tr. at 85.)
Given Thunder’s lack of violent behavior or specific threats of violence, his testimony at
the evidentiary hearing, and his previous ability to function in the general prison
population, the Government has failed to prove by a preponderance of the evidence that
Thunder is need of custody for care or treatment because he is unable to function in the
general population.
The Government also did not meet its burden of proving Thunder is in need of
custody for care and treatment because Dr. McKenzie’s report and testimony does not
properly support his diagnosis. Dr. McKenzie’s August 2016 report is based merely on
the observations of his interns, students, and staff, the Pre-Sentence Investigation Report,
the Psychology Data System, and other computer record and information systems.
(Gov’t Ex. 1.) Dr. McKenzie has been unable to perform a mental health assessment
4

because of his poor relationship with Thunder, and as of January 9, 2017, Thunder has
yet to complete a psychiatric treatment session. (Gov’t Ex. 7 at BP_001403.) Moreover,
Dr. McKenzie’s delusional-disorder diagnosis conflicts with Dr. Stanton’s schizophrenia
diagnosis. Based on that inconsistency and the lack of a proper mental health assessment,
Dr. McKenzie’s report and testimony does not properly support his diagnosis.
CONCLUSION
The Government did not prove by a preponderance of the evidence that Thunder is
in need of custody for care or treatment. Accordingly, IT IS HEREBY ORDERED
that:
1.

The R&R (Docket No. 16) is ADOPTED; and

2.

The Government’s Petition (Docket No. 1) is DENIED.

s/ Paul A. Magnuson

Dated: May 9, 2017

Paul A. Magnuson
United States District Court Judge

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