BRANDT v. HOGAN et al

Filing 9

ORDER that Plaintiff's Motion to appoint the United States Marshal to serve theAmended Complaint [dkt. entry no. 8 ] is GRANTED as to Hogan, Foundas, Marty, Gladey, Pasupuleti, Main, Poag, and Velez. Signed by Magistrate Judge Douglas E. Arpert on 10/12/2011. (mmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOHN BRANDT,

:
:
Plaintiff,
:
:
v.
:
:
ELIZABETH HOGAN, et al.,
:
:
Defendants.
:
____________________________________:

Civil Action No.: 10-4944 (FLW)

ORDER

This matter having come before the Court on a Motion by pro se Plaintiff John Brandt
(“Plaintiff”) to appoint the United States Marshal to serve the Amended Complaint [dkt. entry no.
8], returnable October 17, 2011; and the Court noting that after screening Plaintiff’s original
Complaint, in an Order dated May 31, 2011, “Plaintiff’s claims...against...Defendants Elizabeth
Hogan (“Hogan”), Patricia Foundas (“Foundas”), Benito Marty (“Marty”), Reed Gladey (“Gladey”),
and Sasikala Pasupuleti (“Pasupuleti”) (collectively, “Defendants”)” were allowed to proceed and
Plaintiff’s claims against the remaining defendants named in the Complaint, including John Main
(“Main”), Jonathan Poag (“Poag”), and Jennifer Velez (“Velez”), were dismissed without prejudice,
based upon Plaintiff’s failure to allege their personal involvement (see dkt. entry no. 4); and the
Court noting that Plaintiff filed an Amended Complaint on June 16, 2011 that included Main, Poag,
and Velez in addition to Defendants (see dkt. entry no. 6); and the Court noting that in the Amended
Complaint, Plaintiff alleges that Main, Poag, and Velez, among others, “are responsible for
implementing, promulgating, creating, or possessed responsibility for the continued operation of the
hospital policy that has systematically confined Plaintiff to a jail cell throughout the day and night”,
that they “are aware that this hospital policy infringes on the rights of Krol status persons’ and
regular civil commit[ment’s] rights not to be arbitrarily restrained or secluded”, that they have

“continued the operation of a hospital policy by advice, consent, participation, and approval which
deprives patients of their right to freedom of movement by secluding them arbitrarily to a jail
cell...[despite the fact that] there is no legitimate budgetary restraints [and the fact that] affording
involuntary committed civil patients to the fundamental constitutional right of freedom of movement
could be easily implemented without costing to[o] much or being to[o] much of a burden” (Pl.’s
Amended Compl., dkt. entry no. 6 at ¶¶ 46-47); and the Court noting that although service of the
original Complaint (see dkt. entry no. 1) was effected on Defendants on September 12, 2011 (see dkt.
entry no. 7), to date Defendants have not filed a responsive pleading; and the Court noting that
pursuant 28 U.S.C. § 1915(d), in cases where a party is proceeding in forma pauperis, “[t]he officers
of the court shall issue and serve all process”; and the Court noting that pursuant to FED . R. CIV . P.
15(a)(1), “[a] party may amend its pleading once as a matter of course within: (A) 21 days after
serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after
service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f),
whichever is earlier”; and the Court noting that pursuant to FED . R. CIV . P. 15(c)(1), “[a]n
amendment to a pleading relates back to the date of the original pleading when: (A) the law that
provides the applicable statute of limitations allows relation back, (B) the amendment asserts a claim
or defense that arose out of the conduct, transaction, or occurrence set out – or attempted to be set
out – in the original pleading, or (C) the amendment changes the party or the naming of the party
against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied...”; and the Court noting that “[d]ue
process requires that the nature of commitment bear some reasonable relation to the purpose for
which the individual is committed” (Foucha v. Louisiana, 504 U.S. 71, 79 (1992) (citing Jones v.
United States, 463 U.S. 354, 368 (1983); Jackson v. Indiana, 406 U.S. 715, 738 (1972)); see also
2

Youngberg v. Romeo, 457 U.S. 307, 324 (1982); Jackson v. Indiana, 406 U.S. 715, 738 (1972)); and
the Court noting that involuntarily committed mentally retarded persons retain substantive liberty
interests in adequate food, shelter, clothing, and medical care (Youngberg, 457 U.S. at 315) as well
as in safety, freedom of movement, and minimally adequate or reasonable training to ensure safety
and freedom from undue restraint (Id. at 317-19); and the Court noting that these interests, however,
are not absolute (Id. at 319-20) because “[i]n determining whether a substantive right protected by
the Due Process Clause has been violated, it is necessary to balance ‘the liberty of the individual’
and ‘the demands of an organized society’” (Id. at 320 (quoting Poe v. Ullman, 367 U.S. 497, 542
(1961)); and the Court noting that in seeking this balance, it must weigh “the individual’s interest
in liberty against the State’s asserted reasons for restraining individual liberty” (Id.) where “the
Constitution only requires that the courts make certain that professional judgment in fact was
exercised” as “[i]t is not appropriate for the courts to specify which of several professionally
acceptable choices should have been made” (Youngberg, 457 U.S. at 321); and the Court noting that
even when treatment decisions violate a protected liberty interest, such decisions made by a qualified
professional are presumptively valid and “liability may be imposed only when the decision by the
professional is such a substantial departure from accepted professional judgment, practice, or
standards as to demonstrate that the person responsible actually did not base the decision on such
a judgment”, although “[i]n an action for damages against a professional in his individual capacity,
however, the professional will not be liable if he was unable to satisfy his normal professional
standards because of budgetary constraints” because “good-faith immunity would bar liability”
(Youngberg, 457 U.S. at 323); and the Court noting that other liberty interests may be created by
state law (see Hewitt v. Helms, 459 U.S. 460, 466 (1983); see also Asquith v. Department of
3

Corrections, 186 F.3d 407, 409 (3d Cir. 1999)) and that the State of New Jersey has enacted
legislation providing that every individual who is mentally ill is entitled to fundamental civil rights
and to medical care (N.J.S.A. 30:4-24.1) by way of a “bill of rights” for civilly-committed mental
patients, which includes the rights to be free from physical restraint and isolation, to the least
restrictive conditions necessary to achieve the purposes of treatment, to privacy and dignity (N.J.S.A.
30:4-24.2), and liberty interests in treatment in the least restrictive conditions necessary to achieve
the purposes of that treatment (see, e.g., Scott v. Plante, 691 F.2d 634, 639 (3d Cir. 1982) (“At least
since the passage of N.J.Stat.Ann. 30:4-24.1 in 1965, and those cases which interpret this provision,
the state has an affirmative obligation to treat those mentally ill individuals who are committed to
its institutions. Each patient is also entitled to ‘the least restrictive conditions necessary to achieve
the purposes of treatment.’”); see also Matter of Commitment of J.L.J., 196 N.J. Super. 34
(N.J.Super. App. Div. 1984) (holding that N.J.S.A. 30:4-24.2(e)(2) creates a liberty interest in “least
restrictive” conditions subject to due process protection), cert. denied, 101 N.J. 209, 210 (1985);
N.J.S.A. 30:4-27.1 (setting forth the legislative findings regarding the State’s responsibility to
provide care, treatment, and rehabilitation services to mentally ill persons who are disabled); and the
Court noting that Plaintiff was granted in forma pauperis status on May 31, 2011 (see dkt. entry no.
4); and the Court noting that Plaintiff’s Amended Complaint was filed prior to the date service of
the original Complaint was effected (see dkt. entry nos. 6 & 7); and the Court, having reviewed the
original Complaint and the Amended Complaint (see dkt. entry nos. 1 & 6), finding that Plaintiff’s
allegations in the Amended Complaint against Main, Poag, and Velez sufficiently remedy the
deficiencies found in Plaintiff’s original Complaint – alleging that Main, Poag, and Velez are aware
that isolation for no medical or legal reason is unconstitutional, that they created, implemented,
4

promulgated, or have responsibility for continued operation of the hospital policy of unjustified
isolation, and that they continued the policy by their own personal advice, consent, participation, and
approval for reasons beyond therapeutic need or budgetary constraint – so as to state a claim which
may proceed (see dkt. entry no. 6 at ¶¶ 46-47); and the Court having reviewed the Plaintiff’s written
submission; and the Court having considered the matter pursuant to FED . R. CIV . P. 78; and for the
reasons stated above;
IT IS on this 12th day of October, 2011,
ORDERED that Plaintiff’s Motion to appoint the United States Marshal to serve the
Amended Complaint [dkt. entry no. 8] is GRANTED as to Hogan, Foundas, Marty, Gladey,
Pasupuleti, Main, Poag, and Velez.
s/ Douglas E. Arpert
DOUGLAS E. ARPERT
UNITED STATES MAGISTRATE JUDGE

5