Patient A v. Vermont Agency of Human Services et al

Filing 27

OPINION AND ORDER granting in part and denying in part 17 PARTIAL MOTION to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim. Signed by Judge Geoffrey W. Crawford on 2/11/2015. (esb)

U.S. DIST CT CC
DISTRICT CF

FiLE
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

Z015FEB J I PM I: 28
BY

PATIENT A,
Plaintiff,

v.
STATE OF VERMONT, AGENCY OF
HUMAN SERVICES, DEPARTMENT OF
MENTAL HEALTH, PAUL DUPRE,
COMMISSIONER OF DEPARTMENT OF
MENTAL HEALTH, in his individual and
official capacity, CORRECT CARE
SOLUTIONS, DEPARTMENT OF
CORRECTIONS, and ANDREW PALLITO,
COMMISSIONER OF DEPARTMENT OF
CORRECTIONS, in his individual and
official capacity,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 5:14-cv-000206

OPINION AND ORDER RE:
DEFENDANTS' PARTIAL MOTION TO DISMISS
(Doc. 17)
Plaintiff Patient A alleges various causes of action against defendants State of Vennont,
Agency of Human Services ("AHS"); Department of Mental Health ("DMH"); Paul Dupre,
Commissioner of DMH; Correct Care Solutions ("CCS"); Department of Corrections ("DOC");
and Andrew Pallito, Commissioner of DOC, relating to Patient A's incarceration from August
13,2013 through on or about April 3, 2014. Patient A alleges that he suffers from various
cognitive impairments, that he spent over seven months of his incarceration in segregation, and
that this extended segregation worsened his psychological conditions and caused him harm.
(Doc. 1 at 1-3.) Defendants moved to dismiss Patient A's claims in part. (Doc. 17.) For the
reasons stated below, defendants' motion is GRANTED IN PART and DENIED IN PART.

1

I.

Background

The following facts are drawn from Patient A's complaint. (Doc. 1 at 1-3.) Patient Al
suffers from Autism Spectrum Disorder, Asperger's Type; Attention Deficit Hyperactivity
Disorder; Antisocial Personality Disorder; and Oppositional Defiant Disorder. He was
incarcerated at the Northeast Regional Correctional Facility in Vermont on August 13,2013 for
an alleged parole violation. Patient A was designated by DOC as "seriously functionally
impaired" soon thereafter. On or about August 30,2013, he was transferred to Southern State
Correctional Facility ("SSCF") in Springfield. On or about April 3, 2014, Patient A was
transferred to Vermont Psychiatric Care Hospital ("VPCH") in Morrisville.
Patient A claims that he was held in segregation for over seven months-"nearly all of
his incarceration since August 13, 20 13"-even though he required inpatient hospitalization for
his mental health conditions. (Doc. 1 at 4.) In segregation, Patient A was confined in isolation
to a small cell for approximately twenty-two hours each day. (!d. at 13.) He alleges that his
segregated confinement caused him to "engage(] in self-harming behaviors, suicidal ideations,
poor eating habits, and extended bouts of crying and/or screaming." (Id. at 6.) He also claims
that he suffered uses of force, including segregation, because ofhis mental disabilities and that
these uses of force would not have been permitted in the hospital setting that he required. (Id. at
11.) He claims that "the harassment and discriminatory treatment [he] suffered at the hands of
other prisoners and staff while incarcerated but after he was identified as needing hospital level
psychiatric treatment traumatized him and triggered ... paranoia and psychotic symptoms ...."

(Id.) Upon his arrival at VPCH, Patient A "was noted to have experienced substantial weight
loss, and had bruises, abrasions and scratches on his wrists, forearms, and ankles attributed to his
time in corrections." (Id. at 14.)
Patient A alleges that defendants knew ofhis need for inpatient psychiatric treatment but
did not fulfill their duties to secure him proper placement in a psychiatric care facility until April
2014. Specifically, he alleges that defendant Pallito knew in 2013 and 2014 "about specific
individuals in his correctional facilities who had been held in segregated circumstances for more
than a week due in part to the prisoners' mental health condition," (id. at 5) and in any case that
1

The court previously granted Patient A's motion to proceed under a pseudonym. (Docs. 2, 3.)
2

Pallito "learned about [Patient A's] placement in segregated circumstances due in part to [his]
mental health condition, some time prior to March 28,2014." (Id.) Patient A claims that
employees of defendants CCS2 and DOC identified him as requiring inpatient hospital care due
to decompensation of his mental health by February 8, 2014. (Id. at 6, 13.) Patient A alleges
that once DOC and CCS "notified Defendant DMH of [Patient A's] need for hospitalization, [he]
was ... eligible for involuntary treatment, and Defendants AHS,3 DMH4 and Dupre became
responsible for [his] appropriate treatment and hospitalization." (Id. at 6-7.) He also alleges that
at all times relevant to the complaint, defendant Dupre ''was aware that ... individuals in need of
treatment were not being placed in appropriate treatment settings in a timely manner but instead
at times were being held in segregated correctional cells for long periods of time," in violation of
Vermont law. (Id. at 7-8.)
Patient A also alleges that defendants continued to hold him in segregated confinement
despite their awareness that such confinement was causing his mental health to deteriorate. (Id.
at 6.) Defendant Pallito "did not personally intervene or document any effort to contact other
state officials to notify them of this emergency need for a hospital bed" for Patient A. (Id.)
Likewise, he claims that defendants DOC and CCS "were aware of [his] ... disabilities and
failed to identify and implement necessary accommodations to prevent those disabilities from
resulting in punitive actions or other hanns to [Patient A] while in DOC custody." (Id. at 10.)
Patient A alleges that defendant Dupre "had actual knowledge as early as February 28,2014 that
[Patient A] was being held in segregation in a correctional facility, suffering hann, and in need of
and eligible for hospital level of care." (Id. at 8.) However, Patient A claims, "Dupre failed to
adequately respond to the known hann and risk ofhann such placement was inflicting on
[Patient A.]" (Id. at 9.)

CCS is "a corporate contractor under contract with the State of Vermont to provide a
comprehensive health care program and services, including mental health care, to prisoners
housed in the State of Vermont." (Doc. 1 at 2.)

2

3 AHS "has overall responsibility for providing appropriate placement and care for people in
state[] custody insofar as Defendants DOC and DMH are major components thereof." (Doc. 1 at
2.)
4 DMH "is a governmental entity authorized by state law to provide comprehensive service to all
citizens ofthe state with mental health and related problems." (Doc. 1 at 2.)
3

Patient A also claims that defendant CCS discontinued his Focalin medication and
"ordered him" to take Ritalin, even after his mother "informed Defendant DOC that Ritalin had
made [him] psychotic in the past." (!d. at 13-40.)
Patient A alleges in his complaint six causes of action: (1) cruel and unusual punishment
in violation ofthe Eighth Amendment, pursuant to 42 U.S.C. § 1983, against defendant Pallito;
(2) violation of his substantive due process rights under the Fourteenth Amendment caused by
his segregated confinement in a correctional facility, pursuant to 42 U.S.C. § 1983, against
defendant Dupre; (3) violation of his rights under Title II of the Americans with Disabilities Act
("ADA") caused by his segregated confinement in a correctional facility due to his disability
related behavior, against defendants AHS, DOC, and DMH; (4) violation of the Rehabilitation
Act caused by his segregated confinement in a correctional facility, against defendants AHS,
DOC, and DMH; (5) violation of the Vermont Fair Housing and Public Accommodations Act
caused by segregated confinement in a correctional facility, against defendants AHS, DOC, and
DMH; and (6) medical malpractice against defendant CCS for failure to provide Patient A with
appropriate mental health treatment.
Defendants move to dismiss the first cause of action against defendant Pal1ito to the
extent Pallito is sued in his official capacity; the second cause of action against defendant Dupre
to the extent Dupre is sued in his official capacity and for failure to state a claim; and the fifth
cause of action against defendants AHS, DOC, and DMH on the ground that it is barred by
sovereign immunity. (Doc. 17.)

II.

Motion to Dismiss Standard

A complaint must contain "a short and plain statement of the claim showing that the
pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A complaint need not contain "detailed
factual allegations," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), but to survive a
motion to dismiss it must contain "sufficient factual matter, accepted as true, to state a claim to
reliefthat is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662,678 (2009) (internal
quotation omitted). "A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct

4

alleged." ld. If a plaintiff has failed to "nudge[ ] [his] claims across the line from conceivable to
plausible," Twombly, 550 U.S. at 570, they must be dismissed.
III.
A.

Analysis
Patient A Has Failed to State a Claim Against State Officials in their
Official Capacities

Patient A names Dupre and Pallito as defendants in both their individual and official
capacities. Defendants move to dismiss the first and second causes of action to the extent Patient
A alleges them against Dupre and Pallito in their official capacities. (Doc. 17 at 3-4.)
"The Eleventh Amendment bars a suit against state officials when the state is the real,
substantial party in interest." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101
(1984) (internal quotation omitted). It is settled that neither a state nor any of its entities that
function as "arms of the state" may be sued under 42 U.S.C. § 1983. Komlosi v. NY. State

Office o/Mental Retardation & Dev. Disabilities, 64 F.3d 810, 815 (2d Cir. 1995) (internal
citations omitted). Nor has Vermont waived its sovereign immunity under § 1983. 12 V.S.A. §
5601(g) (Vermont Tort Claims Act provision reserving "the rights ofthe State under the
Eleventh Amendment").
Patient A concedes that he may not sue defendants Dupre and Pallito in their official
capacities. (Doc. 21 at 5.) Patient A's first and second causes of action are DISMISSED to the
extent they are alleged against defendants in their official capacities. The first cause of action is
retained against defendant Pallito in his individual capacity.
B.

Patient A Has Successfully Stated a Claim Against Defendant Dupre for
Violation of His Eighth Amendment Rights As Applied Through the
Fourteenth Amendment

Patient A alleges as his second cause of action that his "segregated confinement in a
correctional facility" violated his substantive due process rights under the Fourteenth
Amendment. (Doc. 1 at 16.) Specifically, Patient A alleges that Dupre's "acts and omissions
related to [Patient A's] continued incarceration, segregation, and lack of appropriate mental
health treatment from February 28,2014 through April 3, 2014 constituted deliberate
indifference to [Patient A's] right to appropriate medical care, in violation ofthe Fourteenth
Amendment." (ld.)
5

Defendants move to dismiss Patient A's second cause of action for failure to state a
claim. They argue that Patient A's second cause of action is a claim of inadequate mental health
treatment-a claim they argue is rooted in the Eighth Amendment. Because the Eighth
Amendment provides the explicit textual source of protection against inadequate mental health
treatment for an incarcerated person, defendants contend, Patient A's claim of inadequate mental
health treatment as a separate and additional violation of substantive due process under the
Fourteenth Amendment should be dismissed. (Doc. 17 at 5-6.) The court agrees that the claim
Patient A alleges is a deprivation of his Eighth Amendment rights, as applied through the
Fourteenth Amendment.
Because "[s]ection 1983 is not itsclf a source of substantive rights," the fIrst step in
analyzing a claim under it "is to identifY the specifIc constitutional right allegedly infringed."
Albright v. Oliver, 510 U.S. 266, 271 (1994) (internal quotation omitted). Substantive due
process for the most part protccts "matters relating to marriage, family, procreation, and the right
to bodily integrity." Id. at 272. As defendants properly point out, Supreme Court precedent
instructs that "[w ]here a particular Amendment provides an explicit textual source of
constitutional protection against a particular sort of government behavior, that Amendment, not
the more generalized notion of'substantive due process,' must be the guide for analyzing these
claims." Id. at 273 (internal quotations omitted); see also Cnty. ofSacramento v. Lewis, 523
U.S. 833, 843 (1998) ("[J]f a constitutional claim is covered by a specifIc constitutional
provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the
standard appropriate to that specifIc provision, not under the rubric of substantive due process.").
"The Eighth Amendment forbids deliberate indifference to serious medical needs of
prisoners, which includes needs for mental health care." Spavone v. NY. State Dep 't ofCorr.
Servs., 719 F.3d 127, 138 (2d Cir. 2013) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976»
(internal quotations and citation omitted). Patient A's second eause of action essentially alleges
that his segregated confInement constituted improper treatment of his mental health conditions
and that he consequently suffered harm. He claims that defendant Dupre was "responsible for
[his] appropriate treatment and hospitalization" (Doc. 1 at 7); that Dupre was aware that
individuals in need of inpatient psychiatric treatment were instead being held in segregation,
including, as of February 28,2014, Patient A himself (id. at 7-8); that Dupre knew or should
6

have known that people with "intense mental illness" often suffer harm as a result ofbeing
confined in segregation (id. at 8-9); and that Dupre "failed to adequately respond to the known
harm and risk of harm such placement was inflicting on [Patient A]." (Id. at 9.) The complaint
alleges under the second cause of action that defendant Dupre's behavior "constituted deliberate
indifference to [Patient A]'s right to appropriate medical care ...." (Id. at 16.) Patient A's
second cause of action thus "merely recloak[ s] an Eighth Amendment claim as a Fourteenth
Amendment claim." Bain v. Cotton, No. 2:06 CV 217, 2009 WL 1660051, at *7 (D. Vt. June 12,
2009).5
The cases that Patient A invokes to support his contention that "claims for deliberate
indifference to a serious medical condition ... are brought under both the Eighth Amendment
and the Due Process Clause of the Fourteenth Amendment," (doc. 21 at 6), concern people
subject to involuntary medical treatment outside of the prison setting. Bolmer v. Oliveira, 594
F.3d 134 (2d Cir. 2010), and Youngberg v. Romeo, 457 U.S. 307 (1982), cited by Patient A in his
brief, both concern substantivc due process claims arising from involuntary commitment to
psychiatric facilities, not a prison inmate's placement in segregation or access to adequate
medical care. The latter type of claim is clearly governed by the Eighth Amendment.
Other case citations revcal that Paticnt A does not distinguish between the application of
the Eighth Amendment's protection against cruel and unusual punishmcnt to the states through
the Fourteenth Amendment and analysis of an independent substantive due process right. He
argues that ''the Constitutional violation asserted here has a substantial history of being
actionable through application of the Fourteenth Amendment." (Doc. 21 at 10.) He cites
Spavone, 719 F.3d at 134, for the proposition that courts consider cruel and unusual punishment
claims under both the Eighth and Fourteenth Amendments. (Doc. 21 at 9.) However, the
Spavone court described the plaintiff s right to be free from cruel and unusual punishment as
5 It is true that an inmatc who is placed in segregation for extended periods of time may have a
valid substantive due process claim stemming from a liberty intercst in remaining with the
general prison population. See, e.g., Deane v. Dunbar, 777 F.2d 871, 875-76 (2d Cir. 1985).
Patient A does not make this particular claim, to which the level of mental health care he
received while incarcerated is analytically irrelevant. Even if count two of Patient A's complaint
is construed to make such a claim, it fails because Patient A points to no Vermont law creating
the requisite liberty interest. See id. ("Since the due process clause of the Fourteenth
Amendment does not create such a liberty interest [in remaining with the general prison
population], plaintiffs must rely on [state] law." (internal citation omitted».

7

arising "under the Eighth and Fourteenth Amendments" because the Eighth Amendment is
applicable to the states through the Fourteenth Amendment. See Phelps v. Kapnolas, 308 F.3d
180, 185 (2d Cir. 2002) ("[TJhe Eighth Amendment ... applies to the states through the
Fourteenth Amendment."). The Spavone court did not say that a claim sounding in the Eighth
Amendment should be analyzed as a Fourteenth Amendment substantive due process violation.
Similarly, Caiozzo v. Koreman, 581 F.3d 63, 66 (2d Cir. 2009), which Patient A cites, merely
applied the subjective standard for cruel and unusual punishment claims by convicted inmates
under the Eighth Amendment to the same claims brought by pre-trial detainees under the
Fourteenth Amendment. See United States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999) ("While the
Eighth Amendment's protection does not apply until after conviction and sentence, the right of
pretrial detainees to be free from excessive force amounting to punishment is protected by the
Due Process Clause ofthe Fourteenth Amendment.") (internal quotation and citations omitted).
Defendants argue for dismissal of the claim--even properly construed as one derived
from the Eighth Amendment -because Dupre is not a "prison official." (Doc. 24 at 2.) Patient
A concedes that Dupre is not a prison official. (Doc. 21 at 7.) A plaintiff may nonetheless assert
an Eighth Amendment claim against individuals who are not technically prison officials­
contractors, for instance, or mental health providers operating under other agencies within
correctional facilities. See, e.g., Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass 'n, 531
U.S. 288,295 (2001) ("[S]tate action may be found if, though only if, there is such a close nexus
between the State and the challenged action that seemingly private behavior may be fairly treated
as that of the State itself.") (internal quotations omitted); Barnes v. Ross, 926 F. Supp. 2d 499,
505-06 (S.D.N.Y. 2013) (analyzing Eighth Amendment claim against state mental health office
employees).
"To state a claim under Section 1983, [a] plaintiff must allege direct or personal
involvement in the alleged constitutional violation." Anderson v. Ford, No. 3:06CV1968 (HBF),
2007 WL 3025292, at *5 (D. Conn. Oct. 16,2007) (citing Provost v. City o/Newburgh, 262 F.3d
146, 154 (2d Cir. 2001)). Patient A has alleged sufficient personal involvement on the part of
Dupre, already discussed above, to sustain a claim that Dupre was deliberately indifferent to his
right to adequate mental health care while imprisoned. See Barnes, 926 F. Supp. 2d at 507

8

(denying motion to dismiss § 1983 claim against state office of mental health employee because
five-minute interview by employee of inmate constituted sufficient direct personal involvement).
Patient A has sufficiently alleged a claim against Dupre for deliberate indifference to his
right to adequate mental health care. Patient A's claim against Dupre therefore survives as an
alleged violation of Patient A's Eighth Amendment rights, as applied through the Fourteenth
Amendment. See Makas v. Miraglia, 300 F. App'x 9, 10 (2d Cif. 2008) (analyzing claim pled as
substantive due process violation under the Fourth Amendment).

C.

Patient A's Claim Under Vermont's Public Accommodations Act is
Barred by Sovereign Immunity

Patient A's fifth cause of action alleges a violation of9 V.S.A. § 4502, the Vermont Fair
Housing and Public Accommodation Act, against defendants AHS, DOC, and DMH. (Doc. 1 at
18.) A plaintiff may not sue a state or an agency thereof in federal court without the state's
consent. Pennhurst, 465 U.S. at 100. Vermont has consented to suit in state court under this
Act, but not federal court. See 9 V.S.A. at § 4506(a) ("A person aggrieved by a violation of this
chapter may ... bring an action ... in the Superior Court of the county in which the violation is
alleged to have occurred."); College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense

Bd., 527 U.S. 666, 676 (1999) ("[A] State does not consent to suit in federal court merely by
consenting to suit in the courts of its own creation."). Patient A concedes that this claim is
barred by sovereign immunity. (Doc. 21 at 10.) Patient A's fifth cause of action is
DISMISSED.

CONCLUSION
For the reasons stated above, defendants' partial motion to dismiss Patient A's claims is
GRANTED IN PART and DENIED IN PART.
Dated at Rutland, in the District of Vermont, this

11th

day of February, 2015.

Geoffrey W. Crawford, Judge
United States District Court

9