Doe v. Comm'r, N.H. Dep't of Health & Human Servs.

2020 DNH 219

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

Civil No. 18-cv-1039-JD

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

December 18, 2020

ORDER

The plaintiff class, represented by the individual plaintiffs ("the plaintiffs"), challenges policies and practices used by the Commissioner of the New Hampshire Department of Health and Human Services ("the Commissioner") in detaining persons who are involuntarily admitted on an emergency basis to the state's mental health system. The plaintiffs contend that the Commissioner's practice of detaining those persons without probable cause hearings violates the due process clause of the Fourteenth Amendment. The Commissioner moves to dismiss on the grounds that the claim is barred by the Eleventh Amendment and that the plaintiffs lack standing to pursue the claim. The plaintiffs object, and the Commissioner filed a reply.

Background

The detailed factual background in this case, as alleged in the plaintiffs' amended complaint, was provided in the court's order denying the Commissioner's previous motion to dismiss, document number 147, and will not be repeated here.

The plaintiffs have one remaining claim against the Commissioner (Count I) brought pursuant to 42 U.S.C. § 1983.¹ That claim arises from the Commissioner's policies and practices with respect to involuntary emergency admission ("IEA") to the state's mental health services system and the detention of persons experiencing mental health crises who are certified for IEA. In Count I, the plaintiffs allege that the Commissioner is denying them procedural due process in violation of the Fourteenth Amendment by having them detained, while waiting for space in a designated receiving facility, without being provided a probable cause hearing. They seek an injunction against the Commissioner to stop that practice and to require the Commissioner to provide procedural due process under the Fourteenth Amendment.

Discussion

The Commissioner moves to dismiss Count I as barred by the Eleventh Amendment and for lack of standing under Article III. The plaintiffs object, arguing that their claim is within theexception to Eleventh Amendment immunity provided under Ex Parte Young, 209 U.S. 123 (1908). They contend that they have Article III standing to bring their federal claim because the denial of their procedural due process rights is an injury in fact that is fairly traceable to the Commissioner and could be redressed by the relief they seek.

I. Standard of Review

The Commissioner's motion to dismiss challenges the court's subject matter jurisdiction and is brought pursuant to Federal Rule of Civil Procedure 12(b)(1). Under Rule 12(b)(1), the court construes the allegations in the complaint liberally, treats all well-pleaded facts as true, and resolves inferences in the plaintiffs' favor. Jalbert v. U.S. Securities & Exchange Comm'n, 945 F.3d 587, 590-91 (1st Cir. 2019). In addition to the complaint, the court may consider other evidence submitted by the parties without objection. Hajdusek v. United States, 895 F.3d 146, 148 (1st Cir. 2018). The plaintiff, as the party invoking federal jurisdiction, bears the burden of showing that subject matter jurisdiction exists when challenged by a motion to dismiss on that ground. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

II. Eleventh Amendment

The Commissioner contends that the plaintiffs' claim in Count I does not come within the exception to sovereign immunity provided by Ex Parte Young because the plaintiffs allege only a violation of state law and because the state, rather than the Commissioner, is the real party in interest. The plaintiffs contend that that they allege a violation of procedural due process protected by the Fourteenth Amendment and that the Commissioner is the proper defendant.

In the absence of consent by the state, the Eleventh Amendment provides the state immunity from suit brought in federal court by citizens of that state or another state. Pennhurst St. Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). When a state official is sued, the suit is barred if "the state is the real, substantial party in interest." Id. at 101. Congress's enactment of 42 U.S.C. § 1983 did not waive states' sovereign immunity to suit in federal court. Spencer v. N.H. St. Police, 2019 WL 1546995, at *1 (D.N.H. Apr. 9, 2019). Any waiver of sovereign immunity must be express. Blanchette v. Tretyakov, 2020 WL 4219787, at *3 (D. Mass. July 23, 2020).

"[A] suit challenging the constitutionality of a state official's action is not one against the State." Pennhurst, 465U.S. at 102. For that reason, claims for prospective injunctive relief and declaratory judgments to stop an ongoing violation of federal law by a state official may be brought against the state official, sued in her official capacity. Va. Office for Protection & Advocacy v. Stewart, 563 U.S. 247, 255-56 (2011) ("VOPA"); Ex Parte Young, 209 U.S. at 156. While federal courts are authorized to require state officials to conform to federal law, they are not authorized to require state officials to conform to state law. Pennhurst, 465 U.S. at 101-02.

A. Federal or State Law Claim

The Commissioner contends that the plaintiffs' claim in Count I only alleges a violation of New Hampshire law. In her reply, the Commissioner states: "It remains unclear to the Commissioner how precisely the class plaintiffs believe Count I asserts a Fourteenth Amendment violation." Doc. no. 196, at *7. The Commissioner further asserts that the complaint seeks relief based on the requirements of RSA 135-C:31 and not based on the Fourteenth Amendment.

As the court stated in the order denying the Commissioner's previous motion to dismiss, the plaintiffs' claim in Count I is "that the Commissioner's psychiatric boarding practice violates their right to procedural due process under the FourteenthAmendment."² Doc. no. 147, at *12. Under the Fourteenth Amendment, "the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333 (1976). The Supreme Court "repeatedly has recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection." Addington v. Texas, 441 U.S. 418, 425 (1979). Individuals suffering from mental illness have due process rights and cannot be deprived of their liberty without procedural safeguards. Zinermon v. Burch, 494 U.S. 113, 136-139 (1990); see also Foucha v. Louisiana, 504 U.S. 71, 86 (1992); Vitek v. Jones, 445 U.S. 480, 491-92 (1980). "[T]o determine whether a constitutional violation has occurred, it is necessary to ask what process the State provided, and whether it was constitutionally adequate." Zinermon, 494 U.S. at 125-126.

The plaintiffs seek a declaratory judgment and a prospective injunction to stop the Commissioner's practice of failing to provide probable cause hearings within a reasonable time. The plaintiffs are challenging that practice as a violation of the due process clause of the Fourteenth Amendment, whether or not that practice also violates RSA chapter 135-C.The plaintiffs' references in the amended complaint to the three-day period for providing a probable cause hearing under RSA 135-C:31 is their suggestion as to a reasonable amount of time within which to provide a hearing, for purposes of providing due process. See, e.g., Addington, 441 U.S. at 431-32 (considering burdens of proof adopted by states in deciding the constitutional minimum for civil commitment proceedings). Those references to the statute as a benchmark do not convert their federal constitutional claim into a state law claim.

The Commissioner also argues that the claim is based on state law because admission of an IEA-certified person to the state's mental health services system is governed by RSA chapter 135-C.³ The court previously construed the applicable sections of RSA chapter 135-C to mean that an IEA-certified person is admitted into the state's mental health services system when the IEA certificate is complete. Although the Commissioner disputes that result and will argue for a different interpretation beforethe New Hampshire Supreme Court, for purposes of this motion, that is the law of the case, at this point.⁴

Therefore, the plaintiffs' claim is a federal claim brought against a state official, seeking declaratory and prospective injunctive relief to stop alleged violations of the Fourteenth Amendment.

B. Real Party in Interest

The Commissioner also contends that the State of New Hampshire is the real party in interest, making the claim subject to sovereign immunity under the Eleventh Amendment. "The general rule is that relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter." Pennhurst, 465 U.S. at 101. As explained above, however, Ex Parte Young provides an exceptionto that rule when a suit challenges the constitutionality of a state official's action and seeks to enjoin an official's unconstitutional future conduct. Pennhurst, 465 U.S. at 102.

The Ex Parte Young exception does not apply when the state is the real and substantial party in interest, based on the effect of the relief sought. VOPA, 563 U.S. at 255-56. A suit is against the state, and not the official, "when the judgment sought would expend itself on the public treasury or domain, or interfere with public administration." Id. at 255. For that reason, the Eleventh Amendment bars suits that seek damages or payments from the state's treasury, seek specific performance of a state contract, or raise the functional equivalent of a quiet title action against the state. VOPA, 563 U.S. at 256-57; see also Waterfront Comm'n of N.Y. Harbor v. Governor of New Jersey, 961 F.3d 234, 240-41 (3d Cir. 2020) (commission's suit to reinstate its assessment authority deemed to...