Tanner v Sanders

Filing 4

IT IS ORDERED, for the reasons stated in the Report and Recommendation (Doc. #3), Plaintiffs Petition for Habeas Corpus (Doc. #1) is DISMISSED. It is further ORDERED that Magistrate Judge Rushs Report and Recommendation be attached to and made part of this Order. Signed on 5/6/15 by District Judge Brian C. Wimes. (Attachments: # 1 Supplement DPR R & R) (Baldwin, Joella) Modified on 5/6/2015 to reflect copy of order and attachment mailed to pro se plaintiff this date. (Baldwin, Joella).

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
JEFFREY TANNER,
Petitioner,
v.
WARDEN LINDA SANDERS,
Respondent.

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Case No. 13-3461-CV-H-BCW

REPORT AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Petitioner, Jeffrey Tanner, an inmate who was confined in the United States Medical
Center for Federal Prisoners at the time he filed his petition, petitions this Court for a writ of
habeas corpus. The pro se petition has been referred to the undersigned for preliminary review
under 28 U.S.C. § 636(b). Because the Petitioner is not entitled to the relief he seeks, it will be
recommended that the petition be DISMISSED.1
BACKGROUND
Petitioner Jeffrey Tanner was charged with threatening to assault and murder an
employee and/or family members of an employee of the Veterans Administration in the District
of Hawaii in July 2000. The trial court ordered Tanner to undergo psychological evaluation for
determination whether or not he was competent to stand trial. Upon recommendation of a risk
assessment panel at the United States Medical Center for Federal Prisoners (USMCFP) in

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Rule 4 of the Rules Governing Section 2254 Cases in the United States District Court directs
the Court to conduct a preliminary review of a habeas petition. “If it plainly appears from the
petition and any attached exhibits that the petitioner is not entitled to relief in the district court,
the judge must dismiss the petition . . . .”

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Springfield, Missouri, the trial court determined that Tanner then suffered from “a mental disease
or defect rendering him mentally incompetent to the extent that he is unable to understand the
nature and consequences of the proceedings against him or to assist properly in his defense.” The
trial court ordered Tanner “committed to the custody of the Attorney General for further
evaluation, and, if appropriate, proceedings under 18 U.S.C. § 4246.” See United States v.
Tanner, Case No. 1:02-cr-00379-SOM, Doc. 75 (D. Haw. filed June 17, 2003).
On September 18, 2003, the government filed a Petition to Determine the Present Mental
Condition of an Imprisoned Person pursuant to 18 U.S.C. § 4246. United States v. Tanner, Case
No. 6:03-cv-03341-MDH (W.D. Mo. filed September 18, 2003) (“Tanner Commitment”). A
Risk Assessment Panel of mental health professionals at USMCFP found that Tanner suffered
from Bipolar I disorder, most recent episode manic, with psychotic features, and Personality
disorder, NOS. The panel recommended that as a result of his mental illness, Tanner’s release
“would create a substantial risk of bodily injury to another person or serious damage to the
property of another.” The panel further recommended that Tanner be committed for care and
custody in a suitable facility pursuant to 18 U.S.C. § 4246 (Tanner Commitment Doc. 1). United
States Magistrate Judge James C. England held a hearing in the matter on April 15, 2004.
Tanner was represented by counsel. Judge England recommended that Tanner be committed
pursuant to the statute. On June 4, 2004, United States District Judge Richard E. Dorr adopted
the magistrate’s recommendation and entered judgment committing Tanner under 18 U.S.C. §
4246 (Id. Doc. 32).
On September 26, 2006, the government filed a Motion for Conditional Release,
reporting that a risk assessment panel at USMCFP had determined that although Tanner
continued to suffer from mental illness, the illness was controlled with medication, and Tanner

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would no longer present a substantial risk of bodily injury to another person or serious damage to
the property of another so long as conditions were placed on his release (Id. Doc. 37). The panel
recommended that Tanner be released to a group home in Anaheim, California. Judge England
held a hearing on the government’s motion on September 28, 2006, at which Tanner testified that
he was aware of and agreed to abide by the conditions of release. Judge England therefore
recommended Tanner’s conditional release.

Judge Dorr adopted Judge England’s

recommendation and ordered Tanner conditionally released on October 6, 2006 (Id. Doc. 41).
On November 9, 2006, the government filed a Motion for Revocation of Tanner’s
Conditional Release upon information from his probation officer that while residing at a halfway
house in Los Angeles, California, Tanner was found to have written letters to Arnold
Schwarzenegger, Governor of California, which contained delusional content and potential
threats. Halfway house staff and the probation officer determined that Tanner had a number of
delusions involving the governor. Those delusions, coupled with Tanner’s history of threatening
government officials, led the probation officer to believe that Tanner had become a danger to the
community. The probation officer recommended that Tanner’s conditional release should be
revoked (Id. Doc. 42-1). Tanner was returned to USMCFP on November 30, 2006. Tanner was
evaluated by a risk assessment panel at USMCFP and an independent psychologist, Kenneth
Burstin, Ph.D. Both the panel and Doctor Burstin recommended that although Tanner continued
to suffer from mental illness, his continued release on conditions that he comply with
medications, reside in a group home, and be supervised by a probation officer, would not pose a
substantial risk of injury to others or damage to the property of others (Id. Docs. 51 and 52-1).
After a hearing at which Tanner was represented by counsel, Judge England determined that
Tanner had violated his conditions of release and recommended that revocation of his

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conditional release was required (Id. Doc. 55). On August 1, 2007, United States District Judge
Richard Dorr adopted the recommendations of Magistrate Judge England, ordered Tanner’s
conditional release revoked, and committed him to the custody of the Attorney General (Id. Doc.
57).
On June 6, 2008, the government filed a Motion for Conditional Release on the basis of a
January 9, 2008, Risk Assessment Review Panel’s recommendation that Tanner was no longer in
need of inpatient psychiatric treatment and his conditional release to a halfway house in
Lewisport, Kentucky, would not pose a substantial risk to others or the property of others (Id.
Doc. 59). Judge England held a hearing on the motion on June 10, 2008. Judge England
recommended Tanner’s conditional release.

Judge Dorr adopted that recommendation and

released Tanner on conditions on June 18, 2008 (Id. Doc. 64).
On September 30, 2010, the government again filed a Motion to Revoke Tanner’s
Conditional Release based upon the report of his probation officer that he had been hospitalized
at Western State Hospital in Hopkinsville, Kentucky, for mental health evaluation.

While

hospitalized, Tanner refused to take prescribed medication, and involuntary administration was
required. The probation officer reported that Tanner physically resisted and assaulted three
nurses in their attempt to involuntarily medicate him. It was later discovered that Tanner had
attempted to write letters to President Barack Obama, Senator Jim Bunning, Kentucky Governor
Steve Beshear, and other government officials, all in violation of his conditions of release (Id.
Doc. 66). Judge England issued a warrant for Tanner’s arrest. He was returned to USMCFP.
Tanner was again evaluated by a risk assessment panel and independently by Doctor Burstin.
Unlike his 2006 revocation, however, both the panel and Doctor Burstin recommended that
continued hospitalization and confinement in USMCFP were warranted based on his active

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psychosis (Id. Docs. 72-1 and 75). Judge England held a hearing on September 7, 2011, at
which Tanner was represented by counsel. Based on the information gathered, Judge England
recommended that Tanner’s conditional release be revoked (Id. Doc. 76). Judge Dorr adopted
the recommendation, ordered revocation of Tanner’s conditional release, and ordered his
continued confinement pursuant to 18 U.S.C. § 4246 (Id. Doc. 80).
The government filed with the Court annual risk assessment reports in 2012, 2013, and
2014 (Id. Docs. 82, 83, and 84). In each report, the risk assessment panel opined that Tanner
suffered from a major mental illness, but given his improvement with consistent medication
compliance, he could safely be released from commitment on conditions that he continue to take
medication, participate in outpatient treatment, and have his compliance monitored.
Tanner filed the instant petition for writ of habeas corpus on November 6, 2013 (Doc. 1).
Tanner requests that his civil commitment case be stricken or overturned because his continued
commitment violated his constitutional rights.2
DISCUSSION
Commitment under 18 U.S.C. § 4246 is appropriate when release of a federal prisoner
would pose a substantial risk of bodily injury to another person or serious damage to the property
of another. The government is required to show by clear and convincing evidence that the
inmate suffers from a mental disease or defect; would be dangerous if released; and suitable state
placement cannot be found. See United States v. Williams, 299 F.3d 673, 676 (8th Cir. 2002). A
district court holds the authority to revoke a grant of conditional release under 18 U.S.C. §
2

On March 16, 2015, after the filing of his habeas petition, the Court released Tanner to the
Harris Manor Care Center in Farmington, Missouri. Among the conditions of release posed
upon Tanner were conditions that he continue to take his prescribed psychotropic medications,
cooperate with residential placement, and follow instructions of his probation officer (Tanner
Commitment Doc. 91).

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4246(f) for a defendant’s “failure to comply with the prescribed regimen of medical, psychiatric,
or psychological care or treatment” to the extent that “continued release would create a
substantial risk of bodily injury to another person or serious damage to the property of another.”
See United States v. Franklin, 435 F.3d 885, 890 (8th Cir. 2006).
The undersigned has thoroughly reviewed the record, and recommends that Tanner is not
entitled to relief on his claims that his constitutional rights have been violated. The record
establishes that Tanner was afforded the full panoply of due process rights at each stage of the
commitment and release process, including examinations by an independent mental health
examiner and hearings where he was represented by counsel and afforded the opportunity to
testify on his own behalf. The Court infers from the record in his commitment case, that staff at
the USMCFP put in significant effort over the course of twelve years to find medications that
most effectively treated the symptoms of Tanner’s mental illness.

Furthermore, when

appropriate community placements were found, the government moved for Tanner’s conditional
release. To date, Tanner has thrice been released from confinement at USMCFP to community
reentry facilities.
The undersigned finds no merit to an argument that Tanner is entitled to unconditional
release. By statute, unconditional release may occur only after a court finds by a preponderance
of the evidence that a defendant has recovered from his mental disease or defect to such an
extent that “his release would no longer create a substantial risk of bodily injury to another
person or serious damage to property of another.” 18 U.S.C. § 4246(e)(1). No mental health
professional has made any such recommendation, and there is no basis in the record upon which
the court could make such a finding. According to reports filed in his commitment case, Tanner
has a long-standing history of mental illness; he has consistently been diagnosed with Bipolar

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Disorder I, with psychotic features. His psychosis manifests in delusional beliefs that he has
personal relationships with government officials, some of whom, he contends, communicate with
him telepathically. He also exhibits paranoia, representing, among other things, that government
officials are attempting to steal from him millions of dollars he stands to inherit.
Significantly, Tanner has decompensated while released to the community upon
conditions. He has a history of writing delusional and threatening letters to government officials,
including the President of the United States, two state governors, and a United States Senator.
During one period of conditional release, in 2010, Tanner refused to voluntarily take prescribed
medications. His delusional behavior escalated, and he was committed to a Kentucky hospital.
The record shows that he assaulted three nurses at that facility when they attempted to forcibly
medicate him. Taking together Tanner’s consistent and long-term history of Bipolar Disorder
with psychotic features, his continued delusions and paranoia, his lack of insight into his mental
illness, his continued inappropriate letter-writing, and the violations of his conditions of release,
the undersigned recommends that Tanner’s revocations of conditional release and subsequent
confinement in USMCFP, were lawful, and the procedures used to procure his commitment were
constitutional.
CONCLUSION
Therefore, based on all the foregoing, IT IS HEREBY RECOMMENDED that
Petitioner Jeffrey Tanner is not entitled to the relief requested in his petition for writ of habeas
corpus. IT IS FURTHER RECOMMENDED that his petition be DISMISSED.
DATED: April 10, 2015
/s/ David P. Rush
DAVID P. RUSH
United States Magistrate Judge

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