Doe v. NH Department of Health and Human Services, Commissioner et al

Filing 149

ORDER granting 79 Motion to Certify Class. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

John Doe, et al.
v.

Civil No. 18-cv-1039-JD
Opinion No. 2020 DNH 073

Commissioner, New Hampshire
Department of Health and Human
Services, et al.

O R D E R
The individual plaintiffs filed a putative class action
that challenges policies and practices used by the Commissioner
of the New Hampshire Department of Health and Human Services
(“the Commissioner”) and four New Hampshire hospitals to
involuntarily detain individuals on an emergency basis who
experience mental health crises and seek treatment in hospital
emergency rooms.

The individual plaintiffs have moved for class

certification for their claims against the Commissioner in
Counts I, II, and III of their amended complaint.1

The

Commissioner objects to certification of the proposed class.

The New Hampshire Hospital Association and twenty
hospitals have intervened as plaintiffs in this case.
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Background
Four plaintiffs bring this putative class action,
challenging the practices of the Commissioner with respect to
involuntary emergency admissions of persons with mental illness.
Three of the plaintiffs, John Doe, Charles Coe, and Jane Roe,
have been granted permission to proceed under pseudonyms.

The

fourth plaintiff, Deborah A. Taylor, is proceeding as the
guardian for her son, Scott Stephen Johnstone.

A.

Practice of Psychiatric Boarding

Under New Hampshire law, persons, like the plaintiffs, who
experience mental health crises may be involuntarily admitted on
an emergency basis pursuant to RSA 135-C:27-33.

The plaintiffs

allege they and other persons who experience mental health
crises are involuntarily detained in hospital emergency rooms,
pursuant to an IEA petition and certificate, without counsel, a
hearing, or any process for challenging the detention.

They

allege that the hospitals are not equipped to provide treatment
while certified persons await admission to designated receiving
facilities.
The plaintiffs allege that on August 21, 2017, there were
seventy-one adults waiting for admission to designated receiving
facilities and that on May 25, 2017, there were twenty-seven
children waiting.

Some persons have experienced waiting times
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lasting up to four weeks.

The plaintiffs further allege that

the Commissioner is aware of the problem but has failed to
correct it.
B.

Experiences of Individual Plaintiffs
1.

John Doe

John Doe was admitted to the emergency room at Southern New
Hampshire Medical Center (“SNHMC”) in Nashua, New Hampshire, on
November 5, 2018, after attempting suicide.

SNHMC clinicians on

staff believed that Doe was refusing treatment and, for that
reason, completed a petition and a certificate for involuntary
emergency admission under RSA 135-C:28.

Doe contends that the

clinicians were mistaken and that he was willing to be treated
for his mental health issues on an out-patient basis.
After the involuntary emergency admission (“IEA”)
certificate was completed, Doe was detained at SNHMC.
renewed the IEA petition on November 8, 2018.

SNHMC

After this action

was filed on Doe’s behalf, SNHMC changed Doe’s status to
voluntary admission, and the IEA petition and certificate were
rescinded.

He was discharged on November 15, 2018, ten days

after the initial IEA petition and certificate were completed.
Doe did not receive a probable cause hearing during the ten days
of his detention at SNHMC.

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2.

Charles Coe

Charles Coe’s family brought him to the emergency room at
Concord Hospital on July 20, 2018, because he was experiencing
significant anxiety.

Although Coe thought he would be admitted

voluntarily, Concord Hospital personnel completed a petition and
an IEA certificate.

Coe was placed in the psychiatric ward.

He asked to be released on July 25, but Concord Hospital
refused.

Instead, hospital personnel completed another petition

and IEA certificate.

Coe then was transferred to a wing of the

hospital for behavioral health emergencies.
renewed the IEA certificate three times.

The hospital

He was not provided a

probable cause hearing during that time.
Coe hired an attorney who challenged his involuntary
admission by filing a petition for a writ of habeas corpus on
August 3.

The hospital released Coe on August 8.

Merrimack

County Superior Court issued an order on the habeas petition on
August 9.

The court ruled that that if a new IEA petition were

filed as to Coe, he would have to be released or provided a
probable cause hearing within three days pursuant to RSA 135C:31, I.

Doe v. Concord Hospital, No. 217-2018-CV-00448

(Merrimack Cty. Sup. Ct. Aug. 9, 2018).2

In response to the hospital’s motion for reconsideration,
the superior court issued an order on September 5, 2018, holding
that the August 9 order had no preclusive effect because Doe’s
petition had become moot.
2

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3.

Jane Roe

Jane Roe had a contentious interaction with her adult
daughter on September 21, 2018.
and an ambulance.

Her daughter called the police

When Roe declined to go with the EMTs, they

injected her with a sedative and took her into custody.

She was

taken to the emergency room at St. Joseph’s Hospital and was
involuntarily admitted pursuant to a petition and an IEA
certificate.
October 9.

The certificate was renewed six times through
Roe did not receive a probable cause hearing while

she was detained at St. Joseph’s Hospital.
Roe was transferred to New Hampshire Hospital on October
10, 2018.

A probable cause hearing was scheduled there.

When

Roe’s daughter was unavailable for the probable cause hearing,
however, Roe was released.

4.

Deborah Taylor

Scott Stephen Johnstone was involuntarily admitted to the
emergency room at Memorial Hospital in North Conway under an IEA
petition and certificate on July 17, 2018.
involuntary emergency admission.

This was his third

His mother and guardian,

Deborah Taylor, completed the petition.

Johnstone was detained

at Memorial Hospital for twenty-seven days while awaiting
admission to a designated treatment facility.
5

The IEA

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certificate was renewed eleven times during that period.
Johnstone was not provided a probable cause hearing while
detained at Memorial Hospital.
Taylor became concerned about the lack of treatment for
Johnstone’s mental illness and the conditions of his detention.
After Taylor told her story to political leaders in New
Hampshire and to the press, Johnstone was transferred to New
Hampshire Hospital on August 13, 2018.

Following a hearing,

probable cause was found to keep him there for a month.

C.

Individual Plaintiffs’ Claims against the Commissioner

The individual plaintiffs bring three counts against the
Commissioner.

In Count I, brought pursuant to 42 U.S.C. § 1983,

the plaintiffs allege that the Commissioner denied them
procedural due process in violation of the Fourteenth Amendment
to the United States Constitution.

In Count II, the plaintiffs

allege that the Commissioner has violated their due process
rights under the New Hampshire Constitution, Part I, Article 15.
In Count III, the plaintiffs allege that the Commissioner
violated RSA 135-C:31, I by failing to provide them probable
cause hearings within three days after the IEA certificates were
completed.
The Commissioner moved to dismiss the individual
plaintiffs’ § 1983 claim against her, Count I, arguing that they
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had not alleged facts showing state action.3

The Commissioner

also moved to dismiss the state law claims, Counts II and III,
for lack of supplemental jurisdiction and on the merits.

The

court denied the motion to dismiss, construing RSA 135-C:31, I
to mean that the Commissioner has a duty to provide for probable
cause hearings within three days of when an IEA certificate is
completed and that a failure to comply with this statutory duty
constitutes state action.

D.

Proposed Class

The four named plaintiffs move to certify a class “of
themselves and other individuals who are currently being, have
been, or will be involuntarily detained in a non-DRF hospital
under RSA 135-C:27-33 without having been given a probable cause
hearing by the State of New Hampshire within three days (not
including Sundays and holidays) of the completion of an
involuntary emergency admission certificate.”4

Doc. no. 78,

¶ 15.
The plaintiffs allege that there is a stigma associated
with individuals who have been the subject of IEA certificates

In addition, the Commissioner moved to dismiss the
hospital plaintiffs’ claims, and that motion was also denied.
3

4

DRF stands for designated receiving facility.
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so that they are perceived to have a mental illness and are more
likely to be involuntarily admitted in the future.

They allege

that individuals who are subject to IEA certificates are not
provided procedural due process to challenge the finding that
they meet the criteria for involuntary emergency admission.
They also allege that the proposed class of individuals being
involuntarily detained in non-designated receiving facilities
without due process was at least fifty in October of 2018 and in
July of 2019 was sixteen.
For relief, the plaintiffs, on their own behalf and on
behalf of the class, seek a declaration that the Commissioner’s
practice of not providing a probable cause hearing to persons
involuntarily detained in private hospitals within three days
after an IEA certificate is completed violates RSA 135-C:31, I
and the Due Process Clause of the Fourteenth Amendment.

They

also seek a declaration that the Commissioner’s practice
violates Part I, Article 15 of the New Hampshire Constitution.
They ask the court to impose a preliminary and a permanent
injunction to require the Commissioner to provide procedural due
process to IEA-certified persons who are detained in hospitals
while waiting to be delivered to a designated receiving
facility.

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Standard of Review
The plaintiffs move to certify a class under Federal Rules
of Civil Procedure 23(a) and 23(b)(2).

For purposes of class

certification, the named plaintiffs must meet the threshold
requirements of Rule 23(a) by showing sufficient numerosity of
the proposed class, common questions of law or fact, the
representative parties’ claims are typical of the class, and the
representative parties will fairly and adequately represent the
class.
(1997).

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 612
Under Rule 23(b)(2), a class action may be maintained

when “the party opposing the class has acted or refused to act
on grounds that apply generally to the class, so that final
injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole.”

The party seeking

class certification bears the burden of showing compliance with
the requirements of Rule 23.

In re Nexium Antitrust Litig, 777

F.3d 9, 18 (1st Cir. 2015).

Discussion
In their motion, the plaintiffs assert that they meet the
requirements of Rule 23(a) and (b)(2) for purposes of class
certification.

The Commissioner objects to certification of the

proposed class, attacking Count I on the merits as lacking
allegations of state action, and arguing that the plaintiffs
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cannot meet the requirements of commonality and typicality under
Rule 23(a)(3) and (4).

The Commissioner does not challenge the

plaintiffs’ showing as to the requirements of numerosity and
adequacy of representation or as to the application of Rule
23(b)(2).

A.

State Action

The Commissioner argues that the plaintiffs lack
allegations of state action to support their § 1983 claim, Count
I, and on that basis opposes the motion for class certification.
In essence, the Commissioner repeats the theories she raised in
her motion to dismiss.

She states:

The plaintiffs’ class certification motion
proceeds from the erroneous premise that private
hospitals, their staff, and/or other private persons
seeking involuntary emergency admissions of persons to
the New Hampshire Hospital or another receiving
facility under RSA 135-C:27–54 are either state actors
themselves or have some authorization from the state
to detain those persons until law enforcement takes
them into custody pursuant to RSA 135-C:29. For the
reasons set forth in the defendant’s motion to dismiss
and accompanying memorandum of law filed this day,
those legal premises are incorrect. In fact, except
in certain limited, narrow circumstances, every
individual “sought to be admitted for treatment on an
involuntary basis shall be at liberty.” RSA 135-C:39.
Doc. no. 106 at *2-*3.
That issue has been resolved against the Commissioner.

As

is noted above, in denying the Commissioner’s motion to dismiss,
the court held that RSA 135-C:39 does not apply to involuntary
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emergency admissions under RSA 135-C:27-33 and that the
plaintiffs sufficiently alleged state action to avoid dismissal.
Doc. no. 147, at *26, n.11, & *29-*30.

Therefore, the

Commissioner’s theory that class certification must be denied
due to a lack of state action fails.

B.

Commonality and Typicality – Rule 23(a)(2) and (3)

The Commissioner contends that the plaintiffs do not meet
the commonality and typicality requirements of Rule 23(a)(2) and
(3).

To satisfy Rule 23(a)(2), the plaintiffs must show that

the class shares common questions of law or fact.

The Supreme

Court has explained that the commonality requirement means
showing “that the class members have suffered the same injury.”
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).

The

class’s claim must arise from a common contention that is
“capable of classwide resolution—which means that determination
of its truth or falsity will resolve an issue that is central to
the validity of each one of the claims in one stroke.”

Id.;

accord Parent/Professional Advocacy League v. City of
Springfield, 934 F.3d 12, 28 (1st Cir. 2019).
To meet the typicality requirement, Rule 23(a)(3), the
plaintiffs must show that their claims against the Commissioner
are typical of the claims of the class.
23(a)(3).

Fed. R. Civ. Pro.

The claims are typical if they “arise from the same
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event or practice or course of conduct that gives rise to the
claims of other class members, and are based on the same legal
theory.”

Garcia-Rubiera v. Calderon, 570 F.3d 443, 460 (1st

Cir. 2009); accord Rapuano v. Trs. Of Dartmouth Coll., 2020 WL
475630, at *7 (D.N.H. Jan. 29, 2020).
The Commissioner argues that the proposed class does not
meet the commonality or typicality requirements because “[t]he
policy or practice complained of varies based on the different
private practices of four hospitals.”5

Doc. no. 106, at *8.

She

further contends that because the only state action addressed by
the plaintiffs is the absence of state action, there is no basis
for a § 1983 claim.

As is noted above, the Commissioner’s

erroneous theory about the hospitals’ role in the certification
process and the lack of state action has been resolved in favor
of the plaintiffs.

The Commissioner attempts to shift blame for the
psychiatric boarding practice to the hospitals and argues that
the hospitals are the actual defendants. The Commissioner is
mistaken. The plaintiffs’ claims in Counts I, II, and III are
brought against the Commissioner, not the hospitals. They
allege that she has violated their due process rights under the
Fourteenth Amendment of the United States Constitution by
failing to provide probable cause hearings within three days of
IEA certification and that the same practice by the Commissioner
has violated their rights to due process under the New Hampshire
Constitution and the statutory requirements under RSA 135-C:2733.
5

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As alleged, the named plaintiffs and the proposed class
members have been and will be subjected to the same policy and
practice by the Commissioner.6

That is, once an individual is

certified for involuntary emergency admission, the Commissioner
is required to but does not provide for a probable cause hearing
until after the IEA-certified person is delivered to a
designated receiving facility.

The result of that policy and

practice, as alleged, is that the named plaintiffs and the
proposed class have been and will continue to be detained for
days and even weeks without due process protection.

Despite the

Commissioner’s objections, the plaintiffs have provided a
sufficient showing that the proposed class meets the commonality
and typicality requirements of Rule 23(a)(2) and (3).

C. Numerosity and Adequacy of Representation Rule 23(a)(1)
and (4)
The commissioner objected only to the plaintiffs’ showing
with respect to the commonality and typicality requirements.
Therefore, the Commissioner does not challenge the plaintiffs’

The Commissioner argues that the plaintiffs were not in
state custody based on two inapposite statutes. RSA 135-C:28,
III limits the time a person may be held in “protective custody”
by a “peace officer.” There is no claim here that a plaintiff
was held in protective custody by a peace officer. RSA 135C:39, I does not apply to individuals who are subject to an IEA
certificate. The Commissioner’s reliance on statutory
provisions that do not apply to the facts of the case is not
persuasive.
6

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showing as to numerosity and the adequacy of presentation, under
Rule 23(a)(1) and (4).
1.

Numerosity

The plaintiffs contend that the proposed class will be at
least fifty individuals based on the numbers of persons who have
been subject to psychiatric boarding in the past.

A proposed

class that exceeds forty members is deemed to be sufficiently
numerous to meet the requirement of Rule 23(a)(1).

Rapuano v.

Trs. Of Dartmouth Coll., 2020 DNH 013, --- F.R.D. ---, 2020 WL
475630, at *5 (D.N.H. Jan. 29, 2020).
Although the numbers of IEA-certified persons being held in
hospital emergency departments for more than three days without
probable cause hearings appears to be declining, the
Commissioner is continuing to use the psychiatric boarding
practice.

As a result, there will continue to be potential

class members.

Further the plaintiffs point out the likelihood

that persons with a history of mental illness and a past IEAcertification will be subject to involuntary emergency
admissions in the future.

Therefore, the plaintiffs have made a

sufficient showing of numerosity.

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2.

Adequacy of Representation

Rule 23(a)(4) requires that “the representative parties
will fairly and adequately protect the interests of the class.”
That requirement is “generally satisfied if the interests of the
named Plaintiffs do not conflict with the interests of any class
members.”

Conant v. FMC Corp., 2020 WL 1482634, at *2 (D. Me.

Mar. 27, 2020).

The plaintiffs here are seeking a prospective

injunction, that would affect all of the plaintiffs and the
potential class members in the same way – that is, the
Commissioner would be required to provide for probable cause
hearings within three days of when an IEA certificate is
completed.

Therefore, their interests are aligned and not in

conflict.

D.

Rule 23(b)(2)

The plaintiffs are seeking to certify a class under Rule
23(b)(2), which applies when “the party opposing the class has
acted or refused to act on grounds that apply generally to the
class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a
whole.”

The Commissioner does not challenge that part of the

class certification motion.
“The key to the (b)(2) class is the indivisible nature of
the injunctive or declaratory remedy warranted—the notion that
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the conduct is such that it can be enjoined or declared unlawful
only as to all of the class members or as to none of them.”
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011)
(internal quotation marks omitted).

As noted with respect to

Rule 23(a)(4), the injunction and declaratory judgment that the
plaintiffs are seeking in this case would apply equally to the
named plaintiffs and the class members.

Therefore, the

plaintiffs have satisfied the requirement for a class under Rule
23(b)(2).

E.

Class Certification

The plaintiffs have satisfied the requirements of Rule
23(a) and (b)(2).

Therefore, a plaintiff class is certified

under Rule 23(b)(2) as follows:
As to Counts I, II, and III, a class is certified of all
persons who are currently being, have been, or will be
involuntarily detained in a non-DRF hospital under RSA 135-C:27–
33 without having been given a probable cause hearing by the
Commissioner of the Department of Health and Human Services of
the State of New Hampshire within three days (not including
Sundays and holidays) of the completion of an involuntary
emergency admission certificate.

John Doe, Charles Coe, Jane

Roe, and Deborah A. Taylor are approved as the class
representatives.
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F.

Class Counsel

Once a class is certified, the court must appoint class
counsel.

Fed. R. Civ. P. 23(c)(1)(B) & (g)(1).

The named

plaintiffs move to have their counsel, Gilles Bissonnette, Esq.
and Thoedore E. Tsekerides, Esq., appointed as class counsel.
The commissioner does not object to the appointment of the
plaintiffs’ counsel as class counsel.
Rule 23(g)(1) provides pertinent considerations in
appointing class counsel.

Those considerations include work

counsel has already done in the case to identify and investigate
potential claims, counsel’s prior experience in class actions
and other complex litigation, counsel’s knowledge of the
applicable law, counsel’s available resources.
Attorney Gilles Bissonnette works for the American Civil
Liberties Union of New Hampshire, and Attorney Theodore E.
Tsekerides is a partner at Weil, Gotshal & Manges LLP in New
York.

Both Bissonnette and Tsekerides provide affidavits that

show their experience in civil rights cases and other complex
litigation.

The court is satisfied that Attorneys Bissonnette

and Tsekerides qualify for appointment as class counsel.

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G.

Additional Issues and Notice

Once the court has determined that a class will be
certified, an order certifying a class “must define the class
and the class claims, issues, or defenses and must appoint class
counsel under Rule 23(g).”

Fed. R. Civ. P. 23(c)(1)(B).

To the

extent counsel for the class or for the commissioner seek to
supplement this order with an additional statement about the
class claims, issues, or defenses, counsel shall confer and file
a joint proposed supplemental order for that purpose.
When a class is certified under Rule 23(b)(2), the court
may direct appropriate notice.

Fed. R. Civ. P. 23(c)(2)(A).

Counsel for the class and for the commissioner shall confer
about notice to be provided to the class.

If possible, they

shall file a joint proposed order addressing notice.

If they do

not agree, counsel for the class shall file a proposed order
addressing notice and the commissioner will have an opportunity
to respond.

Conclusion
For the foregoing reasons, the plaintiffs’ motion to
certify a class (document no. 79) is granted, and the following
class is certified:
As to Counts I, II, and III, a class is certified of
all persons who are currently being, have been, or
will be involuntarily detained in a non-DRF hospital
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under RSA 135-C:27–33 without having been given a
probable cause hearing by the Commissioner of the
Department of Health and Human Services of the State
of New Hampshire within three days (not including
Sundays and holidays) of the completion of an
involuntary emergency admission certificate.
John Doe, Charles Coe, Jane Roe, and Deborah A. Taylor are
approved as the class representatives.
Gilles Bissonnette, Esq. and Theodore E. Tsekerides, Esq.
are appointed as class counsel.
If the class or the Commissioner seeks an additional
statement of the class claims, issues, or defenses, that motion
shall be filed on or before May 22, 2020.

If either party

opposes a proposed additional statement, a response may be filed
within fourteen days.
The class and the Commissioner shall file a joint proposed
order addressing notice, or if they do not agree, the class
shall file a proposed order addressing notice, on or before May
22, 2020.

If the class files a proposed order, the Commissioner

may file a response within fourteen days.
SO ORDERED.

______________________________
Joseph A. DiClerico, Jr.
United States District Judge
May 4, 2020
cc:

Counsel of record.

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