Opinion
Case Nos. 99-3158-JWL, 00-3023-JWL
March 28, 2002
MEMORANDUM AND ORDER
The plaintiff brought these actions against state employees and against health care workers under a contract with the State of Kansas complaining of events connected with his transfer in 1998 from a state prison to a correctional mental health facility. The defendants moved for summary judgment and, in a February 1, 2002 order, the court granted summary judgment to the extent that plaintiff sought damages from defendants acting in their official capacities and to the extent that plaintiff sought damages from state employees acting in their individual capacities for alleged forced medication of plaintiff on July 7, 1999. Instead of deciding whether to grant summary judgment regarding plaintiff's claim that his transfer to the Larned Correctional Mental Health Facility ("LCMHF") violated due process, however, the court referred the case to a magistrate judge to appoint counsel for plaintiff and granted leave for plaintiff to file a supplemental response and for defendants to file supplemental replies. The court now denies the motion for summary judgment regarding plaintiff's claim that his right to due process was violated by his transfer to LCMHF without a hearing.
In his supplemental response, plaintiff argues that the Supreme Court decision in Vitek v. Jones, 445 U.S. 480 (1980), is controlling precedent and establishes that his due process rights were violated by his transfer to LCMHF without a hearing. Consequently, plaintiff argues, defendants also are not entitled to qualified immunity because they violated clearly established law.
In their supplemental replies, defendants argue that Vitek is distinguishable. Defendants have provided the court with evidence that LCMHF is managed by the Kansas Department of Corrections and, in contrast, Larned State Security Hospital ("LSSH") is managed by the Kansas Department of Social and Rehabilitative Services. Defendants Simmons, Nuss and Gore characterize LCMHF as a prison and assert that it is not a mental hospital. Defendants Simmons, Nuss and Gore also point out that plaintiff was not civilly committed and that his treatment at LCMHF was for the purpose of ultimately returning him to the Lansing Correctional Facility.
After reviewing the parties' supplemental briefs, the court concludes that summary judgment is not appropriate. On the factual record which is before the court, defendants' attempt to distinguish Vitek is not persuasive. In Vitek, the Supreme Court struck down as unconstitutional a Nebraska statute that authorized the Director of Correctional Services to transfer an inmate to another facility "within or without the Department of Correctional Services" for "examination, study, and treatment" if the inmate suffers from a mental disease or defect and cannot be given proper treatment in their current facility. 445 U.S. at 483. Pursuant to the statute, any prisoner transferred "is to be returned to the Department [of Correctional Services] if, prior to the expiration of his sentence, treatment is no longer necessary." Id. at 483-84. The Supreme court held that the "stigmatizing consequences of a transfer to a mental hospital for involuntary psychiatric treatment, coupled with the subjection of the prisoner to mandatory behavior modification as a treatment for mental illness, constitute the kind of deprivations of liberty that requires procedural protections." Id. at 494.
In Vitek, the inmate was transferred to the security unit of the state mental hospital, managed by the Nebraska Department of Public Institutions. Id. at 484. The Supreme Court's decision, however, did not hinge on the fact that the inmate was transferred out of the custody of the Department of Correctional Service. Instead, the Court focused on the change in the inmate's conditions of confinement. Id. at 493-94. The Court struck down the entire statute, not simply the portion allowing the transfer of an inmate to a facility outside of the Department of Correctional Services. Thus, defendants' attempt to distinguish Vitek on the grounds that LCMHF is managed by the Department of Corrections is not successful.
Defendants' characterization of LCMHF as a prison and not a mental hospital also fails as a basis to distinguish Vitek. If, in fact, a transfer to LCMHF does not result in a significant change in the conditions of confinement, the court would agree that the due process rights recognized in Vitek are not implicated. Defendants, however, did not support their characterization of LCMHF with evidence. Defendants merely assert that the transfer did not result in restraints that were "atypical" compared to ordinary prison life. Absent evidence indicating that conditions of confinement at LCMHF are not significantly different than at other Department of Corrections facilities, the court cannot grant summary judgment to defendants on this basis.
In his supplemental response, plaintiff argues that Vitek is controlling and that the court should grant summary judgment to plaintiff. Because the court lacks sufficient evidence about the conditions of confinement at LCMHF, it is unwilling to grant summary judgment to either party.
Defendants also attempt to distinguish Vitek by pointing to evidence indicating that an inmate transfer to LCMHF is temporary and with the goal of returning the inmate to the sending institution. Exhibit A, attached to defendants' supplemental reply, a document providing information about LCMHF, indicates that the program at LCMHF "is transitional because inmates are referred to the program from other facilities and return to the sending facilities rather than remaining at LCMHF as a final placement . . . [t]he program has no specific length or duration, as time in the program varies from individual to individual and is dependent upon individual illness and progress toward recovery." The court acknowledges that this standard is somewhat different from the transfer under the Nebraska statute whereby an inmate remains at the treating facility until "treatment is no longer necessary." Both, however, are indefinite transfers and inmates remain until they are deemed able to return to their sending institutions. The court is not persuaded by this evidence that the liberty interest recognized in Vitek is not implicated.
In its own research, the court found several Eighth Circuit cases holding that the due process rights recognized in Vitek were not implicated by a short transfer for psychiatric evaluation. See Gay v. Turner, 994 F.2d 425 (8th Cir. 1993); Trapnell v. Ralston, 819 F.2d 182 (8th Cir. 1987); United States v. Jones, 811 F.2d 444 (8th Cir. 1987). These cases are distinguishable from the present case because they involved truly short-term transfers for evaluation as opposed to indefinite transfers for treatment.
The conclusion that Vitek is not distinguishable does not end the court's analysis. The defendants have asserted qualified immunity. In its February 1, 2002 order, the court acknowledged that prison officials, as state employees, enjoyed qualified immunity, Proceneier v. Navarette, 434 U.S. 555, 560-62 (1978), but questioned whether private health care workers under contract with the state also enjoyed qualified immunity. The court pointed out that, in Richardson v. McKinght, 521 U.S. 399 (1997), the Supreme Court held that privately employed prison guards were not entitled to qualified immunity and that several courts have applied the logic of Richardson to health care workers under state contracts and reached the same conclusion. As explained below, the court concludes that qualified immunity does not protect any of the defendants. Thus, the court need not decide whether private health care workers under contract with the state would enjoy qualified immunity.
Under qualified immunity, officials "are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In reaching this determination, the court must ensure that "[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987).
"Once a defendant asserts qualified immunity as a defense, the plaintiff must carry the burden of showing qualified immunity is not proper under the circumstances." Despain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001). "To do this, the plaintiff must show that (1) the defendant's conduct violated a constitutional right and (2) the law governing the conduct was clearly established at the time of the alleged violation." Id. In evaluating whether defendants' conduct violated a constitutional right, the court must determine whether "[t]aken in the light most favorable to the party asserting the injury, the facts alleged show the [defendants'] conduct violated a constitutional right." Holland v. Harrington, 268 F.3d 1178, 1185 (10th Cir. 2001). "Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992).
In the verified complaint against Mr. Simmons and Ms. Gillespie, filed in case number 99-3158, plaintiff alleged that while he was at LCMHF, he was required to participate in counseling, has been force medicated and placed in "therapeutic, 5-point restraint." Plaintiff contends that "[i]n all ways, except in name and controlling agency, [LCMHF] is a State Mental Facility." Conaway v. Smith, 853 F.2d 789, 792 (10th Cir. 1988) ("a verified complaint may be treated as an affidavit for purposes of summary judgment if it satisfies the standards for affidavits set out in Rule 56(e) . . . . that the affidavit be based on personal knowledge, contain facts which would be admissible at trial, and show that the affiant is competent to testify on the matters stated therein.") (citations omitted). Indeed, the evidence submitted by defendants indicates that LCMHF is located on the grounds of the LSSH; was constructed in response to a court order requiring the state to develop a "long-term plan for mentally ill inmates in the custody of the Secretary of Corrections;" and provides "a complete range of traditional psychiatric in-patient programs" including group and individual therapy, activity therapy and music therapy, anger management, academic education and substance abuse treatment tailored to address the needs of the mentally ill substance abuser. The self-proclaimed purpose of LCMHF is "to restore the ability of mentally ill inmates to function normally for reintegration into a general prison population through the provision of an intensive mental health treatment program and programs providing opportunity for rehabilitation."
In the opinion of the court, viewed in the light most favorable to the plaintiff, the facts alleged in plaintiff's verified complaint and the evidence submitted by defendants indicate that the conditions of confinement at LCMHF are substantially similar to the conditions at the mental hospital held in Vitek to amount to a change in conditions of confinement sufficient to implicate an inmate's due process rights. This is the crucial point, of course, because Vitek did not rest on a merely formal semantic distinction between a prison facility and a mental hospital. It is the facts of classifying the prisoner as mentally ill and subjecting the prisoner involuntarily to psychiatric treatment that triggered the necessity for "additional due process protections." Vitek, 445 U.S. at 494.
Because the evidence viewed in the light most favorable to the plaintiff would indicate that the defendants violated plaintiff's liberty interests and because the Viteck decision clearly established the boundaries of plaintiff's liberty interest, the transfer of the plaintiff to LCHMF without a hearing violated clearly established law of which a reasonable prison official should have known. The defendants' motion for summary judgment on the basis of qualified immunity, therefore, is denied.
IT IS THEREFORE ORDERED that defendants' motion for summary judgment is denied in that the court holds that defendants are not protected by qualified immunity from plaintiff's claim that defendants violated his due process rights in transferring him to LHCF without a hearing.
IT IS FURTHER ORDERED that this case is hereby referred to the Honorable Catherine A. Walter for all further pretrial proceedings.