Opinion
6:21-cv-01420-HZ
11-27-2022
JAMES NOTTINGHAM, Plaintiff, v. PATRICK ALLEN, Defendant.
Mark G. Passannante Broer &Passannante, Attorney for Plaintiff Jill Schneider Attorney for Defendant
Mark G. Passannante Broer &Passannante, Attorney for Plaintiff
Jill Schneider Attorney for Defendant
OPINION & ORDER
MARCO A. HERNANDEZ United States District Judge
Plaintiff James Nottingham brings this action against Defendant Patrick Allen, Director of the Oregon Health Authority. Plaintiff alleges that Defendant violated his substantive due process rights under the Fourteenth Amendment by allowing him to remain in a county jail for several months after a court questioned his competency to assist in his criminal defense. Defendant filed a motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim. Plaintiff, initially pro se and now through appointed counsel, opposes the motion.
BACKGROUND
I. Procedural History
Plaintiff originally filed this action pro se on September 27, 2021, when he was detained in jail in Lincoln County, Oregon. At that time, Plaintiff brought a claim for violation of his due process rights under the Fourteenth Amendment against the Lincoln County Sheriff. Plaintiff alleged that he had not yet received a competency evaluation after a circuit court judge ordered such on July 19, 2021. Compl. 3, ECF 2. The Court sua sponte dismissed Plaintiff's Complaint because he had alleged no facts that connected his claimed injury to any action on the part of the sheriff. Order to Dismiss, ECF 6. Plaintiff then filed an Amended Complaint on November 18, 2021, bringing a substantive due process claim against Defendant Allen. Am. Compl. 19-20, ECF 14. After Defendant moved to dismiss and Plaintiff filed a pro se response, the Court appointed Plaintiff pro bono counsel. Plaintiff's counsel filed an amended response on August 15, 2022.
II. Applicable Law
Under Oregon statute, “[w]hen the court has reason to doubt the defendant's fitness to proceed by reason of incapacity” due to a qualifying mental disorder, the court may:
(A) Order that a psychiatric or psychological examination of the defendant be conducted by a certified evaluator and a report of the examination be prepared; or (B) Order the defendant be committed for the purpose of an examination to a state mental hospital or other facility designated by the Oregon Health Authority[.]Oregon Rev. Stat. § (“O.R.S.”) 161.365(1)(a). The statute also provides that “[a] defendant committed under subsection (1)(a)(B) of this section shall be transported to the state mental hospital or other facility for the examination.” O.R.S. 161.365(2). Orders for competency evaluation under this section are commonly called “.365 orders.” See State v. Zamora-Skaar, 308 Or.App. 337, 340, 480 P.3d 1034, 1037 (2020).
O.R.S. 161.370 provides: “if the court determines that the defendant lacks fitness to proceed, the proceeding against the defendant shall be suspended[.]” O.R.S. 161.370(2)(a). Unless the court determines that community restoration services are appropriate and available in the defendant's community, and if the court finds that the defendant requires hospital level care, “the court shall commit the defendant to the custody of the superintendent of a state mental hospital or director of a facility designated by the Oregon Health Authority.” O.R.S. 161.370(3)(a). The Oregon State Hospital (“OSH”) is the only “state mental hospital” designated for this purpose by the Oregon Health Authority (“OHA”). Orders for suspension of proceedings and mental health restoration treatment under this statute are commonly called “.370 orders.” See Zamora-Skaar, 308 Or.App. at 338.
Since 2002, OHA and OSH have been subject to a permanent injunction that requires OSH to admit pretrial detainees who have been found incompetent under O.R.S. 161.370(2) within seven days after a court has issued a .370 order. Or. Advoc. Ctr. v. Mink, Civ. No. 02-339-PA, 2002 WL 35578888, at *1 (D. Or. May 15, 2002), aff'd, 332 F.3d 1101 (9th Cir. 2003). But no current timeline exists under Oregon law for completing a competency evaluation or for admitting a pretrial detainee to OSH for such an evaluation after a .365 order has been issued.
III. Facts
On July 8, 2021, Plaintiff was arrested in Lincoln County, Oregon for reckless driving. Am. Compl. 13. On July 19, 2021, a Lincoln County Circuit Court judge ordered a competency evaluation to determine whether Plaintiff had adequate mental fitness to aid and assist in his criminal defense. Id. Plaintiff was evaluated by a state-certified evaluator in the Lincoln County Jail on July 23, 2021. Id. On September 27, 2021, upon a motion by Plaintiff's criminal defense attorney, the circuit court entered an “Order on Defendant's Motion Regarding Fitness to Proceed.” Schneider Suppl. Decl. Ex. 1, ECF 58-1. The order stated that “defendant is not capable of assisting in his own defense based upon the opinion of his counsel, and [] the defendant's attorney has requested a formal evaluation and assessment of the defendant by a state certified mental health expert” Id. The court ordered that “the defendant is not now fit to proceed . . . and further proceedings herein are suspended pursuant to ORS 161.370(2) pending further order of this Court.” Id. (emphasis added).
Plaintiff remained in custody in the Lincoln County Jail for the next few months. Am. Compl. 16. He was not transported to the Oregon State Hospital (“OSH”) for a either an evaluation of his competency or for restoration services. Id. Plaintiff alleges that “instead of being promptly evaluated and given a timely competency hearing, or being promptly accepted by OSH, [he] has spent months in county jail where the conditions are punitive and no restorative mental health treatment is available.” Id. Plaintiff claims that Defendant refused to allow him to be promptly transported to OSH or provide the mental health treatment necessary to restore him to competency. Id. at 17.
The Lincoln County Circuit Court issued no other orders regarding Plaintiff's competency until December 3, 2021. At that time, the court entered an “Order Authorizing OSH Psychiatric/Psychological Examination of Defendant (ORS 161.365).” Schneider Decl. Ex. A, ECF 30. That order stated that “Defendant is committed to Oregon State Hospital (OSH) for the time necessary to complete an examination by a certified evaluator,” and “[i]f Defendant is in custody, the Sheriff's Office/Department in the committing jurisdiction shall transport Defendant from the jail to OSH in Salem, Oregon[.]” Id. According to the order, Defendant was to return to the jail after the evaluation unless OSH informed the ordering court that Defendant required hospital care due to the severity of his symptoms from a qualifying mental disorder and needed “to remain at OSH pending a hearing or order under ORS 161.370.” Id. Neither party asserts that Plaintiff was transported to OSH or that any evaluation was done at that time.
On February 1, 2022, the Lincoln County Circuit Court rescinded the .365 order issued on December 3, 2021. Passannante Decl. Ex. 2, ECF 56.
Then, on January 7, 2022, the circuit court entered another .365 order: “Order for Community Mental Health Consultation (ORS 161.365).” Schneider Decl. Ex. B, ECF 30. The court ordered that “the community mental health program (CMHP) consult with Defendant and a local entity providing community restoration services to determine whether appropriate services were available in the community.” Id. The consultation was to be completed and submitted “within five judicial days.” Id. Upon completing its consultation, the CMHP found that services and supervision necessary to allow Plaintiff to regain fitness to proceed were unavailable in the community. Schneider Decl. Ex. 1, ECF 34.
On January 14, 2022, the state court held a hearing on Plaintiff's fitness to proceed and entered an order under O.R.S. 161.370, finding Defendant unable to aid and assist in his defense. Id. The order suspended Defendant's criminal proceeding, committed Defendant to the custody of OSH, and ordered the Lincoln County Sheriff to transport Defendant to OSH. Id. At some point after that order, Plaintiff was transported to OSH for restorative treatment.
It is unclear to the Court when Plaintiff was transported to OSH after the .370 order was issued on January 14, 2022. In his Reply in support of his Motion to Dismiss filed on February 3, 2022, Defendant argues that Plaintiff had “obtained his requested remedy” because he received a transport order. Def. Reply 2, ECF 33. But Defendant's Reply does not state that Plaintiff had been transported to OSH. Plaintiff filed a “Notice of Change of Address” on March 7, 2022, listing the Oregon State Hospital as his new address. ECF 41.
STANDARDS
I. Federal Rule of Civil Procedure 12(b)(1)
A challenge to standing is appropriately raised pursuant to Federal Rule of Civil Procedure 12(b)(1). Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011) (”lack of Article III standing requires dismissal for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1)”) (emphasis omitted); Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010) (”Because standing and ripeness pertain to federal courts' subject matter jurisdiction, they are properly raised in a Rule 12(b)(1) motion to dismiss.”).
To satisfy Article III standing, a plaintiff must show that it has suffered an “injury in fact” and a “causal connection between the injury and the challenged action of the defendant.” Multistar Indus., Inc. v. U.S. Dep't of Transp. 707 F.3d 1045, 1054 (9th Cir. 2013) (also noting a third requirement that it be likely, not speculative, that the injury will be “redressed by a favorable decision”) (internal quotation marks omitted). The party who seeks to invoke the subject matter jurisdiction of the court has the burden of establishing that such jurisdiction exists. Chandler, 598 F.3d at 1122. The court may hear evidence pertaining to subject matter jurisdiction and resolve factual disputes where necessary. Kingman Reef Atoll Invs., LLC v. United States, 541 F.3d 1189, 1195 (9th Cir. 2008); Warren v. Fox Fam. Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (jurisdictional challenge under Rule 12(b)(1) may be made by presenting extrinsic evidence).
II. Federal Rule of Civil Procedure 12(b)(6)
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the claims. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). When evaluating the sufficiency of a complaint's factual allegations, the court must accept all material facts alleged in the complaint as true and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012). A motion to dismiss under Rule 12(b)(6) will be granted if a plaintiff alleges the “grounds” of his “entitlement to relief” with nothing “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)[.]” Id. (citations and footnote omitted).
To survive a motion to dismiss, a complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). A plaintiff must “plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In other words, a complaint must state a plausible claim for relief and contain “well- pleaded facts” that “permit the court to infer more than the mere possibility of misconduct[.]” Id. at 679.
Courts must liberally construe pro se pleadings. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). Additionally, a court cannot dismiss a pro se complaint without first explaining to the plaintiff the deficiencies of the complaint and providing an opportunity to amend. Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Dismissal of a pro se complaint without leave to amend is proper only if it is clear that the deficiencies of the complaint could not be cured by amendment. Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995).
DISCUSSION
In his pro se Amended Complaint, filed November 18, 2021, Plaintiff brings one claim against Defendant for violating his substantive due process rights. Plaintiff asserts that Defendant violated his rights by allowing him to receive inadequate mental health treatment in the county jail for several months while his competency determination and admission to the Oregon State Hospital for restorative treatment were delayed. Plaintiff seeks damages, an injunction requiring Defendant to accept physical custody of him, and a declaratory judgment that “Defendant must make a timely determination of competency of persons found in need of an evaluation to determine his/her ability to ‘aid and assist' not to exceed (7) days.” Am. Compl. 21.
Defendant moves to dismiss Plaintiff's Amended Complaint, arguing that Plaintiff lacks standing, his claims are moot, and he states no plausible claim for relief against Defendant. Defendant asserts that because “there has been no order by the state court, pursuant to ORS 161.370 . . . there is no legal mechanism to get Plaintiff to the Oregon State Hospital and no legal obligation for the Oregon State Hospital to admit him.” Def. Mot. Dismiss 6, ECF 29.
I. Mootness
Defendant moves to dismiss Plaintiff's claims under Federal Rule of Civil Procedure 12(b)(1), arguing that the Court lacks subject matter jurisdiction because Plaintiff's claims are moot, or alternatively, because Plaintiff lacks standing. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000) (holding that motions under Rule 12(b)(1) are the proper mechanism to bring challenges to a plaintiff's claims based on either standing or mootness).
The doctrine of standing requires that the plaintiff have a personal stake in the outcome of the litigation. U.S. Parole Comm'n. v. Geraghty, 445 U.S. 388, 396 (1980). Relatedly, mootness is “the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” Id. (citation omitted). Claims are moot and therefore outside the jurisdiction of federal courts when, at any point during the proceedings, there is no longer a case or controversy. United States v. Sanchez-Gomez, 138 S.Ct. 1532, 1537 (2018).
Defendant argues that Plaintiff's claims should be dismissed because he has now received the relief he requested-a competency hearing and transport to OSH. At the time he filed his Amended Complaint, Plaintiff had standing to seek injunctive relief because he remained in the county jail. But during the pendency of these proceedings, Plaintiff had a competency hearing in January 2022 and was admitted to OSH for restoration treatment sometime after that. Thus, although he had standing at the onset of litigation, Plaintiff's claim for injunctive relief is now moot.
But in his motion to dismiss, Defendant does not provide specific reasons why he believes Plaintiff's claims for damages or declaratory relief are moot. Plaintiff seeks compensatory damages due to the delay in his competency evaluation and his transport to OSH. Plaintiff's damages claim was not mooted by the order to transport him to OSH because he still plausibly alleges injury from the delay. Such injury would be redressable by compensatory damages. Plaintiff also seeks a declaration that Defendant must make a timely determination of competency, not to exceed seven days, after a .365 order has been issued. Plaintiff has now received the determination of competency he seeks. But that determination does not negate that he was harmed by a delay in determining his competency. Thus, the Court finds that Plaintiff's claims for damages and for declaratory relief are not moot.
II. Failure to State a Claim
In his Amended Complaint, Plaintiff alleges that the delay in having a formal determination of competency and the delay in his admission to OSH violated his due process rights. Plaintiff claims that after his criminal proceedings were suspended by a court order on September 27, 2021, Defendant refused to transport and accept him at OSH. Plaintiff's plausibly alleged facts show that he remained in the Lincoln County Jail without a hearing on his competency to assist in his defense and without initiation of restoration services from the September 2021 court order until at least December 3, 2021, when the court issued a .365 order. But based on the alleged facts in his Amended Complaint, Plaintiff does not state a plausible claim that Defendant was responsible for the delay.
A. Damages Claim
Under O.R.S. 161.365(1)(a)(B), a court may order that a criminal defendant be committed for the purpose of a competency examination to a state mental hospital. And under O.R.S. 161.370(2)(c), when the court determines that a criminal defendant lacks fitness to proceed, “[t]he court and the parties shall at the hearing determine an appropriate action in the case, and the court shall enter an order necessary to implement that action.” Actions that may be ordered by the court include “commitment for the defendant to gain or regain fitness to proceed” or “community restoration.” O.R.S. 161.370(2)(c)(A)-(B). The order issued by the circuit court in September 2021 suspended Plaintiff's criminal proceedings pursuant to O.R.S. 161.370(2) because of lack of fitness to proceed, “pending further order of this Court.” Schneider Suppl. Decl. Ex. 1. But nothing in that order provided notice to Defendant that Plaintiff should be transported and accepted at OSH.
As Plaintiff alleges, no hearing was held regarding a disposition for restorative treatment after his criminal proceedings were suspended by the court. But because no hearing was held at that time and no order issued under O.R.S. 161.365 or O.R.S. 161.370 to commit Plaintiff to OSH, Defendant had no responsibility to accept Plaintiff at OSH. Thus, while Plaintiff may have suffered harm while awaiting further disposition without proper treatment of his mental illness in the county jail, Plaintiff has not connected that harm to any action or inaction by Defendant.Consequently, the Court dismisses Plaintiff's damages claim.
The harm of which Plaintiff complains is in large part because of the circuit court's delay in issuing a .365 order until December 3, 2021, after his competency was called into question in July 2021 and his proceedings were suspended in September 2021. Defendant is not responsible for this delay.
The Court notes that the circuit court issued a .365 order on December 3, 2021, which included both an order to transport Plaintiff to OSH and an order to commit him for the time necessary to complete a competency evaluation. No hearing was held for more than one month after that order, and a .370 order to commit Plaintiff to OSH for restoration services was not issued until January 14, 2022. But because Plaintiff filed his Amended Complaint on November 18, 2021, before the circuit court's .365 order, he makes no allegations against Defendant regarding that delay.
B. Declaratory Judgment
Plaintiff seeks a declaration that Defendant must determine the competency of pretrial detainees within seven days of a court finding the need for such an evaluation. In his briefing, Plaintiff further explains that his request is that Oregon have a requirement to complete .365 evaluations within seven days, similar to the 2002 injunction that requires OSH to admit pretrial detainees within seven days of .370 order. See Mink, 2002 WL 35578888, at *1. In seeking this relief, Plaintiff relies on a Washington law that sets a performance target of seven days or less for completing competency evaluations under a statute similar to O.R.S. 161.365. Wash. Rev. Code. § 10.77.068. The Washington statute imposes a fourteen-day maximum time limit. Id.; see Trueblood v. Wash. Dept. of Soc. & Health Servs., 822 F.3d 1037, 1046 (9th Cir. 2016).
When seeking a declaratory judgment, a plaintiff “must present the court with a suit based on an ‘actual controversy,'” Surefoot LC v. Sure Foot Corp., 531 F.3d 1236, 1240 (10th Cir. 2008) (citing Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-40 (1937)). But declaratory judgment actions may “fall outside the constitutional definition of a ‘case' in Article III.” Calderon v. Ashmus, 523 U.S. 740, 746 (1998). In other words, the plaintiff need not have suffered an injury. But the requested declaratory judgment action must “completely resolve[] a concrete controversy susceptible to conclusive judicial determination.” Id. at 748 (citing Steffel v. Thompson, 415 U.S. 452 (1974)).
Here, Plaintiff's claim that he should have received a competency evaluation much sooner after a .365 order is based on his erroneous assumption that OSH had received a .365 order for him in July 2021. Because he does not assert an actual controversy as to his own delay in receiving a competency evaluation after a .365 order, his claim for declaratory relief fails. In his Amended Complaint, Plaintiff does not allege that Defendant failed to provide a timely evaluation after the court's .365 order in December 2021. Accordingly, the Court dismisses Plaintiff's claim for declaratory relief as currently pled.
CONCLUSION
The Court GRANTS Defendant's Motion to Dismiss [29]. Plaintiff's Amended Complaint [14] is dismissed without prejudice and with leave to amend. Plaintiff may submit a Second Amended Complaint within thirty (30) days of this Order.
IT IS SO ORDERED.