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

2020 DNH 070

John Doe, et al. v. Commissioner, New Hampshire Department of Health and Human Services, et al.¹

Civil No. 18-cv-1039-JD

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

April 30, 2020

ORDER

The individual plaintiffs filed a putative class action that challenges 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 persons who experience mental health crises and seek treatment in hospital emergency rooms.² The Commissioner moves to dismiss the individual plaintiffs' claims. The plaintiffs object.

Standard of Review

In considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court accepts the well-pleaded factual allegations in the complaint as true and construes reasonable inferences in the plaintiff's favor. Breiding v. Eversource Energy, 939 F.3d 47, 49 (1st Cir. 2019). "To withstand a Rule 12(b)(6) motion, a complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face." Rios-Campbell v. U.S. Dept. of Commerce, 927 F.3d 21, 24 (1st Cir. 2019) (internal quotation marks omitted). The plausibility standard requires sufficient factual allegations "to remove the possibility of relief from the realm of mere conjecture." Dumont v. Reily Foods Co., 934 F.3d 35, 44 (1st Cir. 2019) (internal quotation marks omitted). The purpose of the plausibility standard is to "weed out cases that do not warrant either discovery or trial." Rios-Campbell, 927 F.3d at 24 (internal quotation marks omitted).

Background

Four named 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. Thefourth 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 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. SNHMC renewed the IEA petition on November 8, 2018. 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.

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 admittedvoluntarily, 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. The hospital renewed the IEA certificate three times. 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 135-C:31, I. Doe v. Concord Hospital, No. 217-2018-CV-00448 (Merrimack Cty. Sup. Ct. Aug. 9, 2018).³

3. Jane Roe

Jane Roe had a contentious interaction with her adult daughter on September 21, 2018. Her daughter called the policeand an ambulance. 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. The certificate was renewed six times through October 9. 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. This was his third involuntary emergency admission. 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. The IEA 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. Claims by Individual Plaintiffs 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.

For relief, the plaintiffs 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 violatesRSA 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.

D. Hearing

The court held a hearing on the motions to dismiss, by videoconference, on April 2, 2020. Counsel for the Commissioner, the Doe plaintiffs, and the hospital plaintiffs participated in the hearing.

One issue concerning whether or not Monell v. Department of Social Services, 436 U.S. 658 (1978), applies to the circumstances of this case required additional briefing. That briefing has been submitted.

Discussion

The Commissioner moves to dismiss the claims brought against her on the grounds that the individual plaintiffs do not allege state action in support of their § 1983 claim, Count I, or comply with Federal Rule of Civil Procedure 8(a). TheCommissioner asks the court to decline to exercise supplemental jurisdiction over the state law claims, Counts II and III. Alternatively, the Commissioner challenges the state law claims on the merits. The plaintiffs contend that their amended complaint sufficiently alleges actionable claims.

I. Proper Party as Defendant

The plaintiffs name the Commissioner of DHHS in her official capacity as the plaintiff in this case. The parties, however, from time to time, also refer to DHHS and the state as the defendant. It is understood by the parties that the Commissioner in her official capacity is the proper party defendant.

In their surreply, the plaintiffs argued that they "are attributing liability to the State—through the Commissioner in her official capacity—for an unconstitutional policy, practice, and custom under Monell v. Department of Social Services, 436 U.S. 658 (1978)." Doc. no. 137, at *6. At the hearing, the court questioned the plaintiffs' reliance on Monell and gave them an opportunity to...