USA v. Perales

Filing 94

ORDER denying 89 motion and adopting 91 report and recommendation. The Clerk is directed to mail a copy of this order to Defendant at his last known address. Signed on 1/6/21 by District Judge M. Douglas Harpool. (Maerz, Mary)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA,

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Plaintiff,
v.
RICHARD PERALES
Defendant.

Case No. 99-03283-CV-S-MDH

ORDER
Before the Court is Defendant Richard Perales’ pro se Motion to Be Unconditionally
Released or Released to a State Hospital. (Doc. 89). Defendant claims the Government “has
violated his civil and constitutional amendment rights by neglecting and failing to make every
reasonable effort to get the state to take over his treatment and care as directed by 18 U.S.C.
§ 4246(d) not once since being committed.” A Report and Recommendation (Doc. 91) has been
submitted by the Magistrate Judge, Judge Rush.
Perales is in the custody of the BOP pursuant to a civil commitment under 18 U.S.C.
§ 4246. As a result, he is not authorized to personally file a motion to determine whether he should
be discharged. United States v. O’Laughlin, 934 F.3d 840, 841 (8th Cir. 2019) (Section 4247(h)
requires that “motions for release from civil commitment be filed by an attorney or legal guardian
for the committed person”), cert. denied, 140 S. Ct. 2535 (Mar. 23, 2020). And, Perales has an
attorney, who may file a motion requesting a discharge hearing, if appropriate.
Furthermore, the Report and Recommendation notes that Perales’s conclusory assertions
are contradicted by the record in this matter. In each of the last five years, the Government has
filed reports indicating it has attempted to cause the State of Texas to assume responsibility for

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Perales’s custody, care and treatment as required by Section 4246(d), but the State of Texas has
refused to do so. See Annual Risk Assessment dated Nov. 19, 2019 (Doc. 87-1 at 21) (“[d]uring
the review period, Mr. Perales’s referral to the Interstate Compact Coordinator in Texas was
denied, meaning the state remained unwilling to accept responsibility for his custody, care, and
treatment”); Risk Assessment dated Oct. 11, 2018 (Doc. 71-1 at 15) (“[d]uring the review period,
Mr. Perales’s referral to the Interstate Compact Coordinator in Texas was denied, meaning the
state remained unwilling to accept responsibility for his custody, care, and treatment”); Risk
Assessment dated Nov. 16, 2017 (Doc. 66-1 at 14) (“[d]uring the review period, Mr. Perales’s
referral to the Interstate Compact Coordinator in Texas was denied, meaning the state remained
unwilling to accept responsibility for his custody, care, and treatment”); Annual Risk Assessment
dated Nov. 3, 2016 (Doc. 60-1 at 33) (“Mr. Perales was referred to the Interstate Compact
Coordinator and multiple nursing facilities in Texas; however, his applications for admission were
denied”); Annual Risk Assessment dated Dec. 17, 2015 (Doc. 59-1 at 31) (Perales “was referred
to the Interstate Compact Coordinator, the Texas Department of Criminal Justice Psychiatric Unit,
and numerous nursing care facilities in Texas; however, he was denied acceptance by each of these
placements”).
It is recommended that this Motion be denied. The Report and Recommendation (Doc. 91)
is hereby adopted, and Defendant’s Motion to be Unconditionally Released or Released to a State
Hospital (Doc. 89) is DENIED.

IT IS SO ORDERED.
Dated: January 6, 2021

/s/ Douglas Harpool______
DOUGLAS HARPOOL
United States District Judge

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