Doe v. Dist. of Columbia

206 F.Supp.3d 583

Jane DOE I, by her conservator and next friend, Robert Dinerstein, et al., Plaintiffs,

v.DISTRICT OF COLUMBIA, Defendant.

Civil Action No.: 01-2398 (RC)

United States District Court, District of Columbia.

Signed September 9, 2016

Harvey Shepherd Williams, Williams Legal Group, Washington, DC, Irvin V. Cantor, Cantor, Arkema, Herman Aubrey Ford, III, Cantor Stoneburner Ford Grana & Buckner, Robert A. Dybing, Thompson & McMullan, P.C., Richmond, VA, for Plaintiffs.

Chad Wayne Copeland, Robert C. Utiger, Andrew J. Saindon, Ellen A. Efros, Richard S. Love, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, AND GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Plaintiffs Jane Doe I, Jane Doe II, and Jane Doe III, who brought suit against Defendant the District of Columbia in 2001, were women with intellectual disabilities committed to the District's care. Plaintiffs' original complaint alleged that the District denied them constitutional due process by consenting, against their wishes, to elective surgeries they received—which, for Jane Doe I and Jane Doe III, were elective abortions. After fifteen years of litigation, those claims' core allegations remain unresolved and are reiterated in Plaintiffs' Second Amended Complaint, which brings additional common law battery and District of Columbia statutory claims against the District.

The parties now move for summary judgment on the District's liability for the due process and battery claims, as well as for Plaintiffs' claims brought under D.C. Code § 7–1305.14, which provides a statutory cause of action for civil rights deprivations based on an individual's intellectual disability. The District also moves for summary judgment on Plaintiffs' claims brought under D.C. Code § 7–1305.13, which provides a statutory cause of action to compel the District to provide any rights guaranteed to intellectually disabled individuals under the District's Mentally Retarded Citizens Constitutional Rights and Dignity Act of 1978.

On review of the parties' filings and the record presented, the Court determines that the undisputed facts require the Court to conclude, as a matter of law, (1) that the District did not provide Jane Doe I and Jane Doe III with constitutionally adequate procedures before the District authorized abortions on their behalf, (2) that the District followed its official policies when doing so, (3) that the resulting abortions were therefore violations of Jane Doe I and Jane Doe III's procedural due process rights, (4) that the District is also liable for battery by failing to obtain valid consent for Jane Doe I and Jane Doe III's abortions; and (5) that the abortions violated Jane Doe I and Jane Doe III's rights under D.C. Code § 7–1305.14. The Court accordingly will enter judgment for Plaintiffs on Jane Doe I and Jane Doe III's due process claims, on their battery claims, and on their claims under D.C. Code § 7–1305.14. But because D.C. Code § 7–1305.13 provides a cause of action for only prospective relief, which Plaintiffs do not seek, the Court will enter judgment for the District on Plaintiffs' claims brought under that section. And because, for Jane Doe II, Plaintiffs do not assert a liberty interest protected by the substantive component of the Fifth Amendment's Due Process Clause, the Court will enter judgment for the District on Jane Doe II's due process claim to the extent that it alleges a substantive due process violation and not a procedural due process violation.

Genuine issues of material fact persist regarding whether the District denied Jane Doe II's family members the right to give or withdraw consent for Jane Doe II's surgery in accordance with the expectation created by a District statute. Accordingly, the Court will deny the parties' motions for summary judgment (1) on Jane Doe II's due process claim, to the extent that it alleges a procedural due process violation and not a substantive due process violation; (2) on Jane Doe II's battery claim; and (3) on Jane Doe II's claim under D.C. Code § 7–1305.14.¹

II. BACKGROUND

A. Care for the Intellectually Disabled in the District of Columbia

Forest Haven was a District institution located in Laurel, Maryland that served the District's intellectually disabled population. See Does I Through III v. District of Columbia , 216 F.R.D. 5, 7 (D.D.C. 2003) (describing Forest Haven).² Plaintiffs in this case were all residents at Forest Haven for some period of time before its closure. See First Am. Compl. ¶ 7, ECF No. 91; Answer to the First Am. Compl. ¶ 7, ECF No. 90. In 1978, the District consented to a judgment that found that the care provided at Forest Haven violated residents' federal constitutional rights, that prohibited any further admissions to Forest Haven, and that set an initial schedule for gradually deinstitutionalizing residents. Evans v. Washington , 459 F.Supp. 483, 484, 487–88 (D.D.C. 1978).

Later that year, the District Council enacted the Mentally Retarded Citizens Constitutional Rights and Dignity Act of 1978, which sought "[t]o secure constitutional rights to [intellectually disabled] persons" and "to provide and define rights of procedural due process ... for such persons." Mentally Retarded Citizens Constitutional Rights and Dignity Act of 1978, pmbl., No. 2–297, 25 D.C. Reg. 5094, 5094 (Nov. 8, 1978) (act codified as amended at D.C. Code §§ 7–1301.01 to 7–1306.05 ). For intellectually disabled individuals residing in the District's care, the Act created procedures that allowed relatives or medical officers to consent on the individuals' behalf to essential surgeries in medical emergencies, but it did not enact similar procedures for elective surgeries. See id. § 507, 25 D.C. Reg. at 5130–31 (originally codified at D.C. Code § 7–1305.07 ) (repealed 2008).

The District nonetheless had a policy in place from 1978 until 1990 for elective surgeries: a District official would "sign consent forms ... for elective surgery without having been appointed guardian and without consulting with the person having surgery." Does I Through III v. District of Columbia , No. 01–2398, 2006 WL 2864483, at *1 (D.D.C. Oct. 5, 2006) ; accord Def.'s Statement of Undisputed Material Facts ¶¶ 5–6, ECF No. 326-30 [hereinafter Def.'s Statement]; Pls.' Statement of Undisputed Material Facts ¶¶ 4–6, ECF No. 328-1 [hereinafter Pls.' Statement].³ This policy remained in place even after the District of Columbia Council enacted the Health-Care Decisions Act of 1988, which declared that

"[a]n individual shall be presumed capable of making health-care decisions unless certified otherwise under ... this act";

"[m]ental incapacity to make a health-care decision shall not be inferred from the fact that an individual ...[i]s [intellectually disabled] or has been determined by the court to be incompetent to refuse commitment";

"[m]ental incapacity to make a health-care decision shall be certified by 2 physicians"; and

"[i]n the absence of a durable power of attorney for health care and provided that the incapacity of the principal has been certified," consent to a health-care service, treatment, or procedure may be given, in the order of priority below, by

"(1) [a] court-appointed guardian or conservator of the patient, if the consent is within the scope of the guardianship or conservatorship;

(2) [t]he spouse of the patient;

(3) [a]n adult child of the patient;

(4) [a] parent of the patient;

(5) [a]n adult sibling of the patient; or

(6) [t]he nearest living relative of the patient."

Health-Care Decisions Act of 1988, §§ 4, 5(a), 11(a), No. 7–189, 35 D.C. Reg. 8653, 8654, 8660–61 (Dec. 1, 1988) (codified as amended at D.C. Code §§ 21–2203, 21–2204(a), 21–2210(a) ).

Indeed, despite how it differed from the Health-Care Decisions Act's requirements, the District's policy for intellectually disabled individuals' elective surgeries was put in writing in 1990. See Does I Through III , 2006 WL 2864483, at *1 ("In April 1990, [the District's] longstanding policy was put in writing."); accord Def.'s Statement ¶ 6; Pls.' Statement ¶ 7. In Forest Haven's written Policy H-18, the District detailed procedures for granting permission for residents' medical, dental, or surgical treatment, including elective surgeries: although either a resident's parent or the Forest Haven Superintendent could give informed consent for a resident's elective surgery, the Superintendent could also give consent alone, after discussing the matter with a medical officer. See Def.'s Statement ¶ 7; Pls.' Statement of Disputed Material Facts ¶ 7, ECF No. 337-20 [hereinafter Pls.' Opp'n Statement]; Pls.' Statement ¶¶ 7–8.⁴ The record shows that, in implementing Policy H-18, the District's staff would not always make contact with residents' family members or guardians before a medical procedure. See generally Hubbard Dep. 124:2–20, Def.'s Ex. 5, ECF No. 326-5 (indicating that the District would look for a parent or relative to sign a consent form, but estimating that two-thirds of intellectually disabled people in the District's care lacked a "next of kin" or guardian); Washington Dep. 61:5–67:1, 122:15–18, Pls.' Ex. 53, ECF No. 337-15 (explaining how one District employee attempted without success to contact a resident's family members).

Meanwhile, between 1978 and Forest Haven's ultimate closure in 1991, the District moved former Forest Haven residents out of Forest Haven and into community-based facilities, though the institution continued to house individuals during the transition period. See Evans v. Fenty , 701 F.Supp.2d 126, 131 (D.D.C. 2010) ("By October 1991, all plaintiffs had been moved from Forest Haven and the institution was closed."). Throughout the period before Forest Haven's 1991 closure, the District's Mental...