Carrigan-Terrell v. Mohr et al

Filing 41

REPORT AND RECOMMENDATIONS Defendants # 34 First MOTION for Summary Judgment be granted; Objections to R&R due by 8/12/2013. Signed by Magistrate Judge Mark R. Abel on 7/26/13. (sh1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

D'Nanakai Carrigan-Terrell,

:

Plaintiff

:

Civil Action 2:12-cv-00215

:

Judge Frost

:

Magistrate Judge Abel

v.
Gary Mohr, et al.,
Defendants

:

Report and Recommendation
Plaintiff D'Nanakai Carrigan-Terrell, a State prisoner at the Ohio Reformatory for
Women (“ORW”), brings this action under 42 U.S.C. § 1983. This matter is before the
Magistrate Judge on the State of Ohio and defendants Genine Trim, Dr. Suseela Nalluri,
Dr. Christy Tinch, Dr. Edmund Burke, Erin Maldonado, Bethany Ritter, and Dr. Sheila
Tano’s April 19, 2013 motion for summary judgment (doc. 34).
I.

Allegations in the Complaint

The complaint alleges that around June 2010 plaintiff was told to go to the
Residential Treatment Unit to see Dr. Welch. But when she got to the Unit, she was
forcibly placed in a cell and made to undergo a psychological evaluation. She was
forced to remain in the cell 24 hours a day for about 4 days. Then she was required to
live in the Residential Treatment Unit. The complaint also alleges that after plaintiff had

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been off psychotropic medicine for five months, Dr. Nalluri requested a mandatory
medication hearing for her.
On September 7, plaintiff was given another mandatory medication hearing at
the request of defendants Dr. Nalluri, Dr. Tano, Dr. Tench, and Nurse Maldonado. Dr.
Nalluri lied, stating that plaintiff was assaultive, suicidal, and neglectful of her personal
hygiene. Defendants Dr. Nalluri, Dr. Tano, Dr. Tench, and Nurse Riter did not let
plaintiff attend the first hearing, even though she was competent to do so. Nurse Riter
was supposed to be plaintiff’s liaison, but she favored defendants.
On appeal, defendants Dr. Burke and Mr. Nicastro denied plaintiff the right to
call witnesses and upheld the initial hearing decision to require plaintiff to take
medication. The medication, which has unpleasant side effects, was administered to
punish plaintiff. Dr. Burke denied plaintiff’s appeal; and Warden Jennie Trim never
responded to her appeal. Plaintiff seeks to be removed from mandatory medications.
II.

Arguments of the Parties
A.

The State of Ohio and Defendants

Defendants argue that the record demonstrates that plaintiff suffers from a
serious mental illness and that defendants provided her with all the due process to
which she was entitled in making the decision to administer involuntary psychotropic
medication. Defendants maintain that plaintiff posed a serious threat of harm to herself,
others and property and refused to take psychotropic medication to treat her illness. As

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a result, Dr. Nalluri, plaintiff’s treating psychiatrist since 1998, made three involuntary
medication requests to treat plaintiff with psychotropic medication.
Pursuant to ODRC Policy 67-MNH-07, ORW formed a committee known as an
Involuntary Medication Committee (“IMC”) to determine whether it was appropriate to
administer plaintiff medication. The IMC consisted of a psychiatrist, psychologist, and a
licensed independent social worker, each of whom was not involved with plaintiff’s
mental health treatment prior to the hearing. Plaintiff was also provided with an inmate
advocate to assist her with the process. Prior to each hearing, plaintiff was advised of
her rights and given the opportunity to suspend medication on the date of the hearing.
Plaintiff chose not to attend her February 8, 2011 IMC hearing. Bethany Ritter,
BSN, plaintiff’s inmate advocate, attended the hearing and advocated plaintiff’s
position. Dr. Nalluri testified concerning plaintiff’s mental health and need for
medication. The IMC unanimously determined that plaintiff should be administered
medication for up to 30 days. On March 9, 2011, the day of plaintiff’s 30-day review
hearing, plaintiff’s anger escalated dramatically, and the IMC determined that plaintiff’s
attendance at the hearing would jeopardize the safety of the participants. Plaintiff was
not permitted to attend the meeting. Nurse Ritter attended the hearing, however, and
advocated on behalf of plaintiff. On September 7, 2011, at the 180-day hearing, plaintiff
actively participated. The IMC again determined that plaintiff should be administered
psychotropic medication for up to 180 days.

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Plaintiff alleges that Dr. Burke denied her appeals and Warden Trim did not
respond to her appeals. She maintains that she was administered medication based on
Dr. Nalluri’s lies and as a form of punishment. Defendants contend that the decisions of
the IMC and defendants to medicate plaintiff involuntarily were made after careful
consideration and review of the medical evidence. Defendants further maintain that
plaintiff was afforded all the procedural protections that were due.
B.

Plaintiff

Plaintiff filed a motion requesting that the Court deny defendants’ motion for
summary judgment, but she failed to submit any evidence on behalf of her response or
make any legal arguments as to why summary judgment was not appropriate.
III.

Summary Judgment

Summary judgment shall be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A party asserting the absence or presence of a
genuine dispute must support that assertion by either “(A) citing to particular parts of
materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or other materials”; or “(B)
showing that the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the
fact.” Fed. R. Civ. P. 56(c)(1).
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A party may object that the cited material “cannot be presented in a form that
would be admissible in evidence,” and “[t]he burden is on the proponent to show that
the material is admissible as presented or to explain the admissible form that is
anticipated.” Fed. R. Civ. P. 56(c)(2); Fed. R. Civ. P. 56 advisory committee’s note. If a
party uses an affidavit or declaration to support or oppose a motion, such affidavit or
declaration “must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to testify on
the matters stated.” Fed. R. Civ. P. 56(c)(4).
While the court must consider the cited materials, it may also consider other
materials in the record. Fed. R. Civ. P. 56(c)(3). However, “[i]n considering a motion for
summary judgment, the district court must construe the evidence and draw all
reasonable inferences in favor of the nonmoving party.” Revis v. Meldrum, 489 F.3d 273,
279 (6th Cir. 2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986)). “The central issue is ‘whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.’” Id., 489 F.3d at 279–80 (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251–52 (1986)).
IV.

Discussion

In Washington v. Harper, 494 U.S. 210, 227 (1990), the United States Supreme Court
held that “given the requirements of the prison environment, the Due Process Clause
permits the State to treat a prison inmate who has a serious mental illness with
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antipsychotic drugs against his will, if the inmate is dangerous to himself or others and
the treatment is in the inmate's medical interest.” Before an inmate is involuntarily
medicated, due process requires notice of a hearing and a meaningful opportunity to be
heard. Id. at 228-29. Due process does not require a judicial decisionmaker. Rather, the
decision to involuntarily medicate a prisoner may be made by medical professionals
and corrections officials. Id.
Ohio Department of Rehabilitation and Correction Policy 67-MNH-07 provides
that an inmate with a documented serious illness who refuses voluntary treatment may
be involuntarily medicated after a hearing by a panel of three mental health
professionals consisting of at least one psychiatrist and one psychologist or licensed
independent social worker. See doc. 34-22. The inmate has a right to be present and to
offer relevant evidence, including a right to present testimony and call witnesses,
concerning the necessity of treatment. Id. Involuntary medication may be approved
only if it is demonstrated by clear and convincing evidence that the inmate suffers from
a serious mental illness and as a result of the illness there is a substantial likelihood of
serious harm to himself or others, significant property damage, or that the inmate is
gravely disabled if he is not medicated. Id.
Under Turner v. Safley, U.S. 78, 89 (1987), the standard for determining whether
prison regulation infringes an inmate’s constitutional rights is whether the regulation is
reasonably related to legitimate penological interests. An inmate, such as plaintiff,
possesses a significant liberty interest in avoiding the unwanted administration of
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psychotropic medication. However, the Fourteenth Amendment does allow the State to
treat an inmate who has a serious mental illness with medication against her will if the
inmate is a danger to herself or others and the treatment is in her medical interest. A
prison has a legitimate government interest in the safety of its staff and inmates.
When a liberty interest is at stake–such as the interest in not being subject to
involuntary medication–an inmate is entitled to due process protections. Procedural
due process requires the State to provide an inmate with notice and opportunity to be
heard at a meaningful time and in a meaningful manner.
ODRC Policy 67-MNH-07 provides plaintiff with sufficient procedural
safeguards. Dr. Nalluri submitted an Involuntary Medication Request Form prior to
convening each IMC. Docs. 34-1, 34-2, 34-3, 34-4. Plaintiff was provided an Involuntary
Medication Hearing with a 30-day and a 180-day review. Docs. 34-13, 34-14, 34-15.
Plaintiff was advised of all hearings in writing more than 24 hours prior to each
hearing. Plaintiff was permitted the right to suspend medication during each hearings.
Docs. 34-6, 34-7, 34-9, 34-10, 34-12.
Although plaintiff alleges that she was not permitted to attend the February 8
and March 9, 2011 hearings, plaintiff did not offer any evidence to support this
allegation. Defendants, on the other hand, documented plaintiff’s decision not to attend
the February 8 hearing. Doc. 34-14. Plaintiff was not permitted to attend the March 9
hearing due to her escalating behavior. Docs. 34-1, 34-13, 34-16, 34-19. ODRC Policy 67MNH-07 authorized defendants to limit plaintiff’s right to be present for reasons related
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to institutional security and order. See doc. 34-22. Plaintiff failed to avail herself of the
right to request witnesses to testify.
Defendants did not violate plaintiff’s substantive due process right to refuse
medical treatment. Dr. Nalluri requested that plaintiff be treated with medication to
control her mental illness. Doc. 34-1. Plaintiff is diagnosed with schizoaffective disorder
and experiences mood swings and psychosis. Id. Plaintiff is also diagnosed with
antisocial personality disorder, which causes her to engage in assaultive and aggressive
behavior, mood swings, delusions of grandiosity, mania and psychosis. Id. When
plaintiff is not medicated, she cannot function in the general prison population or
perform activities of daily living. Id. Defendants maintain that plaintiff poses a danger
to herself as evidenced by her deterioration of her self-care and because of her past
history of suicide attempts and threats. Id. Plaintiff is also a threat to others as
evidenced by aggressive and assaultive behavior. Id. She is incarcerated for murder, and
she has assaulted ORW correction officers. Id. Plaintiff has not come forth with any
evidence to support her assertion that Dr. Nalluri lied. Therefore, I RECOMMEND that
defendants’ motion for summary judgment be GRANTED.
Plaintiff has failed to state a claim against defendants Trim and Burke. The
complaint fails to contain any factual allegations of unconstitutional conduct on the part
of Warden Trim or Dr. Burke. The complaint alleges that Trim failed to respond to
plaintiff’s appeal and neglected her duty to listen to the tapes and make a decision.
Under ODRC Policy 67-MNH-07, the warden does not have an active role in the
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involuntary medication proceedings Either the Director of Clinical Services or the
physician designee decides appeals under the policy. Dr. Burke, the Director of Clinical
Services, affirmed the IMC’s September 7, 2011 decision to administer her medication
after reviewing the decision and the record. The complaint does not allege any
constitutional violations by Dr. Burke, nor does it allege that the appeals policy for IMC
decisions is unconstitutional.
The Magistrate Judge RECOMMENDS that defendant Nicastro be DISMISSED
pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
V.

Conclusion

For the reasons stated above, the Magistrate Judge RECOMMENDS that the State
of Ohio and defendants Genine Trim, Dr. Suseela Nalluri, Dr. Christy Tinch, Dr.
Edmund Burke, Erin Maldonado, Bethany Ritter, and Dr. Sheila Tano’s April 19, 2013
motion for summary judgment (doc. 34) be GRANTED.
If any party objects to this Report and Recommendation, that party may, within
fourteen (14) days, file and serve on all parties a motion for reconsideration by the
Court, specifically designating this Report and Recommendation, and the part thereof
in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),
Fed. R. Civ. P.
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District
Judge and waiver of the right to appeal the judgment of the District Court. Thomas v.
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Arn, 474 U.S. 140, 150-152 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981);
United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005); Miller v. Currie, 50 F.3d 373,
380 (6th Cir. 1995). Even when timely objections are filed, appellate review of issues not
raised in those objections is waived. Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991).

s/Mark R. Abel
United States Magistrate Judge

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