Ferch v. Jett

Harley Ferch, Plaintiff, v. Warden B.R. Jett, Dr. Dionne Hart, Dr. Shelley R. Stanton, MD,and Barb Banitt, (AWS), Defendants.

Case No. 14-cv-1961 (SRN/TNL)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

January 28, 2016

REPORT & RECOMMENDATION

Harley Ferch, # 03916-017, 506 Clay Street, Woodstock, IL 60098 (pro se Plaintiff); and

Ana H. Voss and D. Gerald Wilhelm, United States Attorney's Office, 300 South Fourth Street, Suite 600, Minneapolis, MN 55415 (for Defendants).

I. INTRODUCTION

This matter comes before the Court, United States Magistrate Judge Tony N. Leung, on Defendants' Amended Motion to Dismiss (ECF No. 65) and Motion to Dismiss Amended Complaint (Docket Nos. 63 and 77) (ECF No. 79). These motions have been referred to the undersigned for a report and recommendation to the district court, the Honorable Susan Richard Nelson, District Judge for the United States District Court for the District of Minnesota, under 28 U.S.C. § 636 and D. Minn. LR 72.1.

Based upon the record, memoranda, and the proceedings herein, IT IS HEREBY RECOMMENDED that Defendants' Amended Motion to Dismiss (ECF No. 65) and Motion to Dismiss Amended Complaint (Docket Nos. 63 and 77) (ECF No. 79) be GRANTED.

II. BACKGROUND

Plaintiff Harley Ferch "was civilly committed by the U.S. District Court for the Western District of Missouri . . . in 1999, pursuant to 18 U.S.C. § 4246, after being found incompetent to stand trial under 18 U.S.C. § 876." Ferch v. Jett, No. 14-cv-1961 (SRN/TNL), 2015 WL 251766, at *1 (D. Minn. Jan. 20, 2015). "Ferch has been diagnosed with Delusional Disorder and has been prescribed various medications to treat his condition." Id. "Since his commitment, annual risk assessments have been presented by the U.S. Bureau of Prisons (BOP) to the committing court, where Ferch has been represented by counsel. Id. (citing United States v. Ferch, No. 99-cv-3018 (W.D. Mo.)). "Ferch was transferred to FMC Rochester in 2000 . . . ." Id. Ferch brings the instant action for violation of his constitutional rights based on involuntary medication while at FMC Rochester.¹ Ferch now resides in Illinois. (See ECF No. 83.)

Defendant B.R. Jett is the warden of FMC Rochester. (BCRC at 1.) Defendant Dionne Hart, M.D., is a psychiatrist at FMC Rochester. (Decl. of Dr. Dionne Hart ¶ 1,ECF No. 69.) Dr. Hart "was [Ferch's] treating psychiatrist during the relevant time period in this matter, 2011 through 2013." (Hart Decl. ¶ 3.) Shelley R. Stanton, M.D., is the Chief of Psychiatry at FMC Rochester. (Decl. of Dr. Shelley Stanton ¶ 1, ECF No. 70.) Barb Banitt is the Associate Warden's Secretary at FMC Rochester. (Decl. of Barb Banitt ¶ 1, ECF No. 68.)

In August 2011, Ferch "signed a Medical Treatment Refusal form," indicating that he was refusing treatment, namely, his prescribed dose of olanzapine, because he had recovered from his mental illness.² (BCRC at 1; Ex. A to BCRC, ECF No. 43-1.³) Dr. Hart, Ferch's treating psychiatrist, "did not pursue involuntary medication" at the time because "Ferch was not gravely disabled or at risk of harming himself or others." (Hart Decl. ¶ 9.) Over approximately the next two months, Ferch "became more symptomatic." (Hart Decl. ¶ 9; see Hart Decl. ¶¶ 9-11.) Dr. Hart then pursued involuntary medication. (Hart Decl. ¶ 12; Stanton Decl. ¶ 10.)

A. Involuntary Medication Procedure: Program Statement 6010.03

During the relevant time, involuntary medication was governed by FMC Rochester's Program Statement 6010.03 Psychiatric Evaluation and Treatment. (Stanton Decl. ¶ 4; Ex. A to Stanton Decl, ECF No. 70-1 ("Program Statement 6010.03".) Under Program Statement 6010.03, "psychiatric medication . . . [could] only be involuntarily administered [to Ferch] after an administrative hearing . . . complying with the proceduralsafeguards in Section 7." (Program Statement 6010.03 § 6.) See 28 C.F.R. § 549.45(c) (requiring certain administrative procedures set forth in 28 C.F.R. § 549.46 before medication may be involuntarily administered). The relevant portions of Program Statement 6010.03 essentially mirror the requirements of the applicable portions of 28 C.F.R. § 549.46 (procedures for involuntary administration of psychiatric medication).

1. Notice

Program Statement 6010.03 required that the individual "be provided 24-hours advance written notice of the date, time, place, and purpose of the hearing, including an explanation of the reasons for the psychiatric medication proposal." (Program Statement 6010.03 § 7.) See 28 C.F.R. § 549.46(a)(2). Notice was provided using "form BP-A0959, 'Notice of Hearing and Advisement of Rights for Involuntary Hospitalization or Medication for Psychiatric Care or Treatment.'" (Program Statement 6010.03 § 7.) The notice form was "filled out only by the referring psychiatrist currently involved in the diagnosis or treatment of the [individual]" and could be delivered to the individual by "[a]ny staff member . . . ." (Program Statement 6010.03 § 7.)

2. Hearing Rights

Program Statement 6010.03 also required that the individual "be informed of the right to appear at the hearing, to present evidence, to have a staff representative, to request witnesses, and to request that witnesses be questioned by the staff representative or by the person conducting the hearing." (Program Statement 6010.03 § 7.) See 28 C.F.R. § 549.46(a)(3). "If the [individual] does not request a staff representative, or requests a staff representative with insufficient experience or education, or one who is notreasonably available, the institution mental health division administrator . . . [was required to] appoint a qualified staff representative." (Program Statement 6010.03 § 7.) See 28 C.F.R. § 549.46(a)(3).

3. Hearing & Hearing Report

Program Statement 6010.03 required that the hearing "be conducted by a psychiatrist other than the attending psychiatrist, and who is not currently involved in the diagnosis or treatment of the [individual]." (Program Statement 6010.03 § 7.) See 28 C.F.R. § 549.46(a)(4). With respect to witnesses, Program Statement 6010.03 stated that "[w]itnesses should be called if they are reasonably available and have information relevant to the [individual's] medical condition or need for psychiatric medication. Witnesses who will provide only repetitive information need not be called." (Program Statement 6010.03 § 7.) See 28 C.F.R. § 549.46(a)(5). Program Statement 6010.03 required that "[a] treating/evaluating psychiatrist/clinician, who has reviewed the case, . . . be present . . . and . . . present clinical data and background information relative to the [individual's] need for psychiatric medication." (Program Statement 6010.03 § 7.) See 28 C.F.R. § 549.46(a)(6). Other members of the treating/evaluating team could also be called "to provide relevant information." (Program Statement 6010.03 § 7.) See 28 C.F.R. § 549.46(a)(6).

Under Program Statement 6010.03,

[t]he psychiatrist conducting the hearing must determine whether involuntary administration of psychiatric medication is necessary because, as a result of the mental illness or disorder, the [individual] is dangerous to self or others, poses a serious threat of damage to property affecting the securityor orderly running of the institution, or is gravely disabled (manifested by extreme deterioration in personal functioning).

(Program Statement 6010.03 § 7.) See 28 C.F.R. § 549.46(a)(7). "The psychiatrist [conducting the hearing] must prepare a written report regarding the initial decision," which then "must be promptly provided" to the subject individual. (Program Statement 6010.03 § 7.) See 28 C.F.R. § 549.46(a)(8).

The individual could then appeal the decision to FMC Rochester's mental-health-division administrator within 24 hours of receipt. (Program Statement 6010.03 § 7.) See 28 C.F.R. § 549.46(a)(8). "If the [individual] appeals the initial decision, psychiatric medication must not be administered before the administrator issues a decision on the appeal, unless a[ specified] exception exists . . . ." (Program Statement 6010.03 § 7.) See 28 C.F.R. § 549.46(a)(9). "The [individual's] appeal will ordinarily be reviewed by the administrator or his designee within 24 hours of its submission. The administrator will review the initial decision and ensure that the [individual] received all necessary procedural protections, and that the justification for administering psychiatric medication is appropriate." (Program Statement 6010.03 § 7.) See 28 C.F.R. § 549.46(a)(9).

B. Involuntary Medication of Ferch

At issue are three "rounds" of the involuntary-medication process, which Ferch refers to as the "Due Process Hearings of 2011, 2012, and 2013." (BCRC at 1; see, e.g., BCRC at 2.) During the relevant time, "FMC Rochester would provide an [individual] under an involuntary medication protocol with annual due process hearings if he continued refusing to consent to treatment." (Hart Decl. ¶ 14; see Stanton Decl. ¶ 9.)

1. 2011

Following Ferch's refusal to take his medication at the end of August, Dr. Hart began to notice changes in Ferch. (Hart Decl. ¶¶ 9-11.) "In September 2011, . . . Ferch became argumentative and irritable, and his thoughts were perseverative and circumstantial. He became more intrusive, and his speech was pressured. Nursing staff observed he appeared to have difficulty sleeping at night." (Hart Decl. ¶ 9.)

In a declaration submitted by Dr. Hart, she states that Ferch's "work supervisor reported [Ferch] was disruptive due to his paranoia and need to talk about his perceptions of injustice." (Hart Decl. ¶ 9.) Ferch has submitted a Work Performance Rating dated September 30, 2011, signed by his supervisor. (Ferch Ex. D at 20, ECF No. 1-1.) On a scale of "unsatisfactory" to "outstanding," Ferch was given the second-highest rating of "good." (Ferch Ex. D at 20.) Ferch's supervisor recommended that Ferch receive a bonus and noted that Ferch was a "good worker in the workshop." (Ferch Ex. D at 20.)

"In the evening of October 19, 2011,...