Opinion
CV185010661S
07-12-2019
Gloria DRUMMER v. STATE of Connecticut et al.
UNPUBLISHED OPINION
OPINION
Frechette, J.
Before the court is (1) the defendants’ motion to dismiss (#104) the plaintiff’s complaint on the ground that the court lacks subject matter jurisdiction because the plaintiff’s claims are moot, now that she is no longer civilly committed; and (2) the plaintiff’s motion for class action certification (#113). With regard to the former, the plaintiff argues that her claims qualify for review under the "capable of repetition, yet evading review" exception to the mootness doctrine. In light of the facts that the plaintiff has alleged, and the presumption favoring jurisdiction, the motion to dismiss is denied. In addition, because the plaintiff has failed to meet her burden of demonstrating that the class certification requirements of Practice Book § § 9-7 and 9-8 have been met, the plaintiff’s motion for class certification is denied.
FACTUAL BACKGROUND
On October 14, 2016, the plaintiff, Gloria Drummer, was involuntarily committed to Connecticut Valley Hospital (CVH), pursuant to General Statutes § 17a-498(c), because she was not competent to stand trial for criminal charges. On August 2, 2017, the plaintiff’s treatment team declared her ready for discharge, however, CVH did not request a hearing at the probate court at that time to determine whether she no longer met the legal standard for commitment. Instead, on October 13, 2017, the plaintiff had an annual review, pursuant to General Statutes § 17a-498(g), and both of the testifying psychiatrists said that she did not meet the standard for commitment. Although the plaintiff no longer met the standard for commitment, because there was no appropriate residential placement available for the plaintiff, the case was continued. On March 14, 2018, the plaintiff was ultimately discharged to the Center for Human Development, Inc.’s Lotus House, a private, non-profit social service organization in Western Massachusetts that provides an intensive mental health residential treatment program.
The plaintiff has alleged that her rights under the Connecticut Patients’ Bill of Rights; General Statutes § 17a-540 et seq.; were violated when she was unnecessarily institutionalized for two distinct periods of time. The first was when she was declared ready for discharge, but remained in the institution, for about two months, until her annual review. The second was for approximately five months after she was deemed to no longer meet the standard for commitment, but was not discharged because there was not a bed available for her in an appropriate integrated community setting. The defendants, in their motion to dismiss, argue that the plaintiff’s claims are now moot because she is no longer a civilly committed patient in a state-owned facility. In response, the plaintiff alleges that her claims qualify for review under the "capable of repetition, yet evading review" exception to the mootness doctrine because they satisfy the three-pronged test articulated by the state’s Supreme Court.
In addition, the plaintiff has moved for class certification. The two classes that the plaintiff has proposed are (1) the periodic review class (Fasulo class), consisting of all psychiatric inpatients involuntarily civilly committed to a state-operated psychiatric facility who are likely to not meet commitment standards before their annual or biennial review, and who have not had a probate court periodic review requested by the facility; and (2) the community integration class (Olmstead class), consisting of all psychiatric inpatients involuntarily civilly committed to a state-operated psychiatric facility, who have been declared discharge-ready by their treatment teams or not meeting commitment standards by the probate court, but who remain in the facility unnecessarily institutionalized and segregated for an unreasonable period of time because of a lack of appropriate placements, supports and services in the community. In opposition, the defendants argue that both classes fail to satisfy all the requirements of § § 9-7 and 9-8.
DISCUSSION
A
Mootness
"A motion to dismiss properly attacks the jurisdiction of the court ... and mootness implicates a court’s subject matter jurisdiction." (Citation omitted.) We the People of Connecticut, Inc. v. Malloy, 150 Conn.App. 576, 581-82 n.3, 92 A.3d 961, cert. denied, 314 Conn. 919, 100 A.3d 850 (2014). "Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [the] court’s subject matter jurisdiction ..." (Internal quotation marks omitted.) Valvo v. Freedom of Information Commission, 294 Conn. 534, 540, 985 A.2d 1052 (2010). "Mootness ... implicates subject matter jurisdiction, which imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties." (Internal quotation marks omitted.) Batchelder v. Planning & Zoning Commission, 133 Conn.App. 173, 180, 34 A.3d 465, cert. denied, 304 Conn. 913, 40 A.3d 319 (2012). "Since mootness implicates subject matter jurisdiction ... it can be raised at any stage of the proceedings." (Citation omitted; internal quotation marks omitted.) Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, 240 Conn. 1, 6, 688 A.2d 314 (1997).
"[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). "[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ... clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute ... It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2015).
"Our cases reveal that for an otherwise moot question to qualify for review under the capable of repetition, yet evading review exception, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance." (Internal quotation marks omitted.) Loisel v. Rowe, 233 Conn. 370, 382, 660 A.2d 323 (1995).
Here, the plaintiff has alleged facts sufficient to demonstrate that her claims satisfy the three-pronged test. First, with regard to the inherently limited duration requirement, the plaintiff has provided a 2016 Psychiatric Services Study Report, published by the Department of Mental Health and Addiction Services (DMHAS), that indicates that 80 to 90 percent of patients admitted to state psychiatric facilities stay for less than a year. Moreover, the action that the plaintiff is challenging (i.e., the facility’s failure to schedule a periodic review after the inpatient exhibits behavior indicating that he or she is discharge-ready, or is actually declared discharge-ready) will almost always occur towards the end of the inpatient’s stay. Accordingly, there is a strong likelihood that the substantial majority of cases of this nature will become moot in less than a year, which is too short a time to bring and conclude appellate litigation. Thus, the issue will evade review.
Second, in light of the plaintiff’s permanent mental health condition and long history of psychiatric treatment, which started at age twelve, there is a reasonable likelihood that she will be committed again and face the same situation that she is complaining of in the present action. The testimony the that court heard, on March 26, 2019, from Dr. Jay Lasser, Dr. Michael Norko, and Lisa Backus confirms this. Moreover, in Olmstead v. L.C., 527 U.S. 581, 594 n.6, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999), the Supreme Court determined that the plaintiffs’ claims were not moot, even though they had filed the suit seeking to be removed from a psychiatric unit and placed in a community-based program, and, at the time the Court reached its judgment, they were currently receiving treatment in such programs. The court reasoned that "in view of the multiple institutional placements ... [the plaintiffs] have experienced, the controversy they brought to court is capable of repetition, yet evading review." (Internal quotation marks omitted.) Id.
Third, it can hardly be contended that this issue, which implicates the plaintiff’s constitutional due process rights, is not one of public importance. See Fasulo v. Arafeh, 173 Conn. 473, 476, 378 A.2d 553 (1977), quoting Specht v. Patterson, 386 U.S. 605, 608, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967) ("There can be no doubt that involuntary commitment to a mental hospital, like involuntary confinement of an individual for any reason, is a deprivation of liberty which the State cannot accomplish without due process of law" [internal quotation marks omitted]).
The defendants complain that the first period, between when the plaintiff was declared discharge-ready by her doctors and her annual review, was quite short- about two months. As such, the claim is that there is no duty on the defendants to request a periodic review, under the Connecticut Patients’ Bill of Rights, because the time period is so short. However relevant this may be to the merits of the defendants’ claim, it is not relevant to the issue of mootness. Similarly, whether the state is required to fund additional supportive housing and community services when she is found to no longer meet the standard for commitment by the Probate Court (and should therefore be discharged) is a question that deals not with mootness, but with the merits of the plaintiff’s claims.
Accordingly, the court denies the defendants’ motion to dismiss for lack of subject matter jurisdiction.
B
Class Action Certification
"A trial court must undertake a rigorous analysis to determine whether the plaintiffs have borne the burden of demonstrating that the class certification requirements of Practice Book § § 9-7 and 9-8 have been met ... A trial court nonetheless has broad discretion in determining whether a suit should proceed as a class action ... As long as the trial court has applied the proper legal standards in deciding whether to certify a class, its decision may ... be overturned [only] if it constitutes an abuse of discretion." (Internal quotation marks omitted.) Neighborhood Builders, Inc. v. Madison, 294 Conn. 651, 656-57, 986 A.2d 278 (2010). In determining whether to certify the class, "the [trial] court must take the substantive allegations in the complaint as true, and consider the remaining pleadings, discovery, including interrogatory answers, relevant documents, and depositions, and any other pertinent evidence in a light favorable to the plaintiff." (Internal quotation marks omitted.) Standard Petroleum Company v. Faugno Acquisition, LLC, 330 Conn. 40, 49, 191 A.3d 147 (2018). However, "[t]he rigorous-analysis requirement means that a class is not maintainable merely because the complaint parrots the legal requirements of the class-action rule." (Internal quotation marks omitted.) Id. In addition, "[a]lthough no party has a right to proceed via the class mechanism ... doubts regarding the propriety of class certification should be resolved in favor of certification." (Internal quotation marks omitted.) Id., 50.
"[T]he rules of practice set forth a two-step process for trial courts to follow in determining whether an action or claim qualifies for class action status. First, a court must ascertain whether the four prerequisites to a class action, as specified in Practice Book § 9-7, are satisfied. These prerequisites are: (1) numerosity- that the class is too numerous to make joinder of all members feasible; (2) commonality- that the members have similar claims of law and fact; (3) typicality- that the [representative] plaintiffs’ claims are typical of the claims of the class; and (4) adequacy of representation- that the interests of the class are protected adequately." (Internal quotation marks omitted.) Id., 47-48. With regard to numerosity, "[w]hile there is no predetermined number of plaintiffs necessary to certify a class, courts generally have found a class consisting of 40 or more members to be sufficient." Connecticut Office of Protection and Advocacy for Persons with Disabilities v. Connecticut, 706 F.Supp.2d 266, 287 (D.Conn. 2010).
Second, if all of the requirements of § 9-7 are satisfied, at least one of the three conditions set out in Practice Book § 9-8 must also be satisfied. See Tuohy v. Town of Groton, Superior Court, judicial district of New Britain, Docket No. CV-12-6018123-S, 2013 WL 3970235 (July 16, 2013, Cohen, J.) . Section § 9-8(2), the only section that the plaintiff has argued is satisfied here, requires that "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole."
In construing § § 9-7 and 9-8, Connecticut courts look to federal case law interpreting Federal Rule 23, the federal class action rule, for guidance. See Collins v. Anthem Health Plans, Inc., 275 Conn. 309, 322-23, 880 A.2d 106 (2005).
1
Practice Book § 9-7
Here, the plaintiff has not met her burden of proving that all of the requirements of § 9-7 have been met, for either of the classes. Specifically, as to the Fasulo class, the plaintiff supports her claim of numerosity with charts showing the total number of admissions and discharges, per state facility, and the patients’ length of stay at these facilities. Notably, as the defendants point out, these charts do not distinguish between involuntarily committed patients, voluntary admittees, restoration of competency admittees, and persons found not guilty of criminal charges by reason of insanity, who are placed in the facilities. This is problematic because only involuntarily committed patients can be counted for the Fasulo class, and the plaintiff has not provided a basis to specifically determine how many there are, at any given time.
In addition, the numerosity of the Fasulo class is predicated on the plaintiff’s unsupported claim in her memorandum (#114) that "none of the state facilities are requesting periodic reviews." To wit, the plaintiff assumes that all involuntarily civilly committed patients, who are likely to not meet commitment standards before their annual or biennial review, qualify for the class because the facilities will not request a periodic review for any of them. Without any facts to support this, the court is not inclined to deem it a reasonable inference. See Connecticut Office of Protection and Advocacy for Persons with Disabilities v. Connecticut, supra, 706 F.Supp.2d 287 ("When the exact number of eligible persons is within the defendant’s control, as it is here, [i]t is permissible for the plaintiffs to rely on reasonable inferences drawn from the available facts" [internal quotation marks omitted]).
This allegation is not contained in the complaint and, therefore, the court does not need to assume that it is true. See Standard Petroleum Company v. Faugno Acquisition, LLC, supra, 330 Conn. 49. Moreover, the "representations of ... counsel are not evidence and certainly not proof." (Internal quotation marks omitted.) Cologne v. Westfarms Associates, 197 Conn. 141, 153, 496 A.2d 476 (1985); see also Temlock v. Temlock, 95 Conn.App. 505, 517, 898 A.2d 209, cert. denied, 279 Conn . 910, 902 A.2d 1070 (2006) ("[i]t is well settled that statements of counsel are not evidence" [internal quotation marks omitted]).
In her reply (#123), the plaintiff states, without providing any proof, that none of these reviews were requested by CVH, but instead requested by patients. In the complaint, the plaintiff alleges that in 2017, at CVH alone, there were 48 periodic reviews.
Even if, assuming arguendo, the plaintiff’s statistics and unsupported assumption constitute sufficient proof that the broadly defined Fasulo class might include at least 40 individuals, the plaintiff has still failed to meet her burden of showing that the requirements of § 9-7 have been met. That is because the plaintiff has failed to establish that there are at least 40 involuntarily civilly committed individuals who, like the plaintiff, were declared discharge-ready prior to their annual review, but, were not granted a periodic review and remained institutionalized until their annual review. The plaintiff’s own data illustrates this. Specifically, it shows that from 2012-2015, 80 to 90 percent of all patients in state psychiatric facilities stayed for less than a year (i.e., they were discharged before their annual review). Moreover, in four of the six years that the plaintiff has provided data for, there were more discharges than admissions. These statistics strongly suggest that in-patients who are deemed discharge-ready, are promptly discharged prior to their annual review, thus avoiding unnecessary institutionalization and a violation of the inpatients’ right to liberty.
This statistic also directly contradicts the plaintiff’s unsupported contention that the staff often tells the patients that they need to be good because they will be there for a year.
In Fasulo, the court explicitly said "[w]e do not mean to suggest that a patient may not be released pursuant to the second procedure provided by General Statutes § 17-192." Fasulo v. Arafeh, supra, 173 Conn. 479-80. That provision provides: "[i]f the officers, directors or trustees of a state hospital for mental illness are notified by the superintendent or other person in a managerial capacity of such institution that he has reason to believe that any person committed thereto by order of a probate court is not mentally ill or a suitable subject to be confined in such an institution, such officers, directors or trustees may discharge such person." (Internal quotation marks omitted.) Id., 478. This suggests that many of the patients who are discharged, pursuant to the determination of appropriate hospital personnel, may have suffered no injury at all, even if they were never granted a periodic review because the length of their stay was not long enough to warrant a periodic review.
In other words, the plaintiff has not established that anyone else has been institutionalized until his or her annual review, despite being declared discharge-ready weeks prior. Therefore, the alleged unnecessary institutionalization that the plaintiff experienced, which lasted for over a month and is central to her claim, is an injury that none of the Fasulo class members have been shown to have suffered. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348-49, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) (stating that in order to justify a class action, which is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only, "a class representative must be part of the class and possess the same interest and suffer the same injury as the class members" [internal quotation marks omitted]); see also Standard Petroleum Company v. Faugno Acquisition, LLC, supra, 330 Conn. 55 ("Typicality requires that the disputed issue of law or fact occupy essentially the same degree of centrality to the named plaintiff’s claim as to that of other members of the proposed class" [internal quotation marks omitted]). Accordingly, the plaintiff has failed to meet her burden of proving that the Fasulo class meets the certification requirements set forth in § 9-7.
As to the Olmstead class, the plaintiff has failed to prove that it meets the numerosity requirement. In this vein, the plaintiff represents that "we can deduce that the Olmstead class consists of at least 100 patients over the course of a year." The basis for this estimation is (1) a statement, in the DMHAS 2016 Psychiatric Services Study Report, that in Connecticut, there are "close to 900 residential beds but the capacity does not meet the need for discharge resources"; and (2) the plaintiff’s argument that, in 2016, there were 301 civil patients discharged from the state facilities and all of these patients would be part of the Olmstead class, except for those who were immediately discharged into the community (as opposed to into a residential program).
The plaintiff acknowledges that this number includes not just those patients who were involuntarily civilly committed, and thus potentially eligible for the Olmstead class, but also those who were voluntarily committed and therefore would not qualify.
With regard to the latter, this logic fails to account for instances where there is space available in an appropriate residential program as soon as an individual is ready to be discharged. With regard to the former, this statement appears under a heading in the report entitled "Connecticut Has a Comprehensive Spectrum of Residential Services but Movement Out of These Beds May be Insufficient to Accommodate Demand for Residential Beds." (Emphasis added.) Moreover, earlier in the DMHAS Report (p. 35), there is a chart depicting the average utilization of the beds in the various state residential programs and none of them are at 100 percent. Together, these two pieces of information indicate that the plaintiff’s assumption that all discharged patients have to remain unnecessarily institutionalized, for an unreasonable amount of time, while they wait for a residential bed is not sensible. See Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993) (stating that although courts do not require evidence of the exact class size, the plaintiff must show some evidence, or reasonable estimate, of the number of class members). Furthermore, in opposition to the plaintiff’s motion, the defendants submitted an affidavit from Dr. Charles Dike, the Medical Director for the DMHAS, which states that as of September 21, 2018, there were only five individuals currently involuntarily civilly committed who were deemed discharge-ready but were waiting for a residential bed and, therefore, qualify for the Olmstead class. This number falls far short of meeting the numerosity requirement and the plaintiff’s data and arguments do not suggest that this is inaccurate.
2
Practice Book § 9-8
Because the court finds that the plaintiff has failed to meet all four requirements in § 9-7, for both of the proposed classes, it is unnecessary to consider whether the requirements of § 9-8 are satisfied. However, assuming arguendo that the plaintiff did meet the requirements of § 9-7, the court would deny the motion for class certification on the basis that she has not satisfied § 9-8(2), for either class. The plaintiff’s argument on this point, is that the state has "failed to implement recommendations of its own commissions and reports to build sufficient capacity in the community mental health system to unlock the gridlock throughout the system and ensure that the civil rights of involuntarily institutionalized patients to receive timely community services and supports in the most integrated setting." The plaintiff describes the state’s failures in this regard as "systemic and statewide" and "affecting all persons involuntarily committed to state psychiatric hospitals."
Because the plaintiff has the burden of demonstrating that the class certification requirements of § 9-8 have been met, and she has only argued that she has satisfied § 9-8(2), she has failed to demonstrate that either § 9-8(1) or (3) are satisfied. See Neighborhood Builders, Inc. v. Madison, supra, 294 Conn. 656.
Critically, this argument fails to establish that the defendants have "acted or refused to act on grounds generally applicable to the class[es]." Section 9-8(2). As Dr. Charles Dike points out in his affidavit, "[t]reatment and discharge planning for each admitted patient is individualized and specific to the particular needs of the patient." Accordingly, the point at which a patient is considered stabilized, and should have a probate periodic review requested by the defendant facility, is different for every individual. Similarly, what constitutes a reasonable period of time for the defendants to place an individual in appropriate community setting, after he or she is determined to be discharge-ready, will differ from patient to patient. This is supported by expert testimony, provided at the hearing on March 26, 2019, that it took particularly long to determine what community placement would be appropriate for the plaintiff, given that she deteriorates at a more rapid pace than most other inpatients. Because these determinations rely on each individual’s unique diagnosis, treatment plan, and other personal circumstances, a class action is not an efficient or adequate means of adjudicating the controversy that the plaintiff’s claims raise.
For the foregoing reasons, the plaintiff has not sustained her burden of demonstrating that either proposed class meets all of the requirements for certification. Accordingly, the plaintiff’s motion for class certification is denied.