Opinion
No. 2:17-cr-00003
02-12-2020
UNITED STATES of America, Plaintiff, v. James SHERRILL, Defendant.
Amanda J. Klopf, U.S. Attorney's Office, Nashville, TN, for Plaintiff. Ronald Clayton Small, Federal Public Defender's Office (MDTN), Nashville, TN, for Defendant.
Amanda J. Klopf, U.S. Attorney's Office, Nashville, TN, for Plaintiff.
Ronald Clayton Small, Federal Public Defender's Office (MDTN), Nashville, TN, for Defendant.
MEMORANDUM OPINION
WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE
Before the Court is the Government's Motion for Involuntary Medication to Restore Defendant to Competency (Doc. No. 99), to which Defendant James Sherrill has responded in opposition (Doc. No. 101). After the Court held an evidentiary hearing on November 14, 2019, the parties filed post-hearing briefs (Doc. Nos. 124, 127) and a proposed order (Doc. No. 124-4). For the following reasons, the Court will grant the Government's motion for involuntarily medication with conditions respecting Sherrill's significant liberty interests as identified in the accompanying Order.
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 15, 2017, Sherrill was indicted on one count of conspiracy to possess and distribute Oxycodone and 50 grams or more of methamphetamine, in violation of 21 U.S.C. § 846 (Count One), one count of possessing and distributing Oxycodone, in violation of 21 U.S.C. § 841(a)(1) (Count Two), and three counts of possessing and distributing 5 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (Counts Three, Four, and Five). If convicted on Count One, Sherrill faces a statutory mandatory minimum sentence of 10 years and a statutory maximum sentence of life imprisonment. See 21 U.S.C. §§ 841(b)(1)(A), 846. When Sherrill appeared in Court for a July 27, 2017 status conference, he made statements suggesting that he did not fully understand the charges against him or the potential sentence he faced. (See Doc. No. 23 at 7:13–8:13; 14:25–15:20.) Sherrill's prior counsel of record subsequently filed a motion to withdraw, explicitly stating that "Mr. Sherrill continues to advise that he does not fully understand his case." (Doc. No. 25 at 3.) As a result, the Court ordered a psychiatric or psychological evaluation of Sherrill pursuant to 18 U.S.C. § 4241(a), and remanded Sherrill to the custody of the Attorney General for placement in a suitable facility for the purposes of receiving that evaluation. (Doc. Nos. 28, 35.)
If Sherrill is convicted on Count Two, he may face a statutory maximum sentence of 20 years on that count, with no mandatory minimum. See 21 U.S.C. § 841(b)(1)(C). If Sherrill is convicted of Counts Three, Four, or Five, he may face a statutory minimum sentence of 5 years and a statutory maximum sentence of 40 years. See 21 U.S.C. § 841(b)(1)(B).
On December 18, 2017, Dr. Jeremiah Dwyer, a forensic psychologist at the Federal Detention Center in Englewood, Colorado, submitted a Forensic Evaluation report opining that because "Sherrill is currently exhibiting symptoms of a Delusional Disorder that has been prompted through the use of methamphetamine," he is not competent to stand trial. (Doc. No. 45 at 9, 16.) Dr. Dwyer further opined that "stimulant-induced psychosis has been found to be effectively treated through the use of antipsychotic medication, even if it may take longer to treat delusional thinking than other symptoms," and "recommended that Mr. Sherrill be committed to a federal medical center for treatment for restoration to competency." (Id. at 16.) Based on Dr. Dwyer's report and the evidence presented at the January 3, 2018 competency hearing, the Court ordered that Sherill be committed to the custody of the Attorney General for a period not to exceed four months to determine whether Sherill's competency could be restored. (Doc. No. 48.)
On February 27, 2018, Sherrill was admitted to the Mental Health Unit of the Federal Medical Center in Butner, North Carolina ("FMC Butner"), to undergo a psychiatric evaluation. (Doc. No. 54.) In a Forensic Evaluation report dated August 7, 2018, Dr. Adeirdre Stribling Riley opined that Sherrill suffered from "symptoms of psychosis, clairvoyance, and personality disturbance" making him incompetent to proceed with trial. (Doc. No. 60 at 19.) Dr. Riley further opined that there is a "substantial likelihood" that Sherrill's competency "may be improved in the foreseeable future with ... antipsychotic medicine," but "less intrusive methods of treatment, such as psychotherapy, are not likely to restore his competence." (Id.)
Dr. Riley retracted her original July 23, 2018 report (Doc. No. 58) containing a substantive typographical error and replaced it with her August 7, 2018 report. (See Doc. No. 60 at 1.)
On August 9, 2018, shortly after receiving Dr. Riley's report, the Government filed a Motion for Involuntary Medication to Restore Defendant to Competency and to Require BOP to Produce a Detailed Treatment Plan for Restoration of Competency (Doc. No. 62). Based on this motion, Dr. Riley's report, and the reasons discussed at the August 9, 2019 status conference, the Court ordered Sherrill to remain in the custody of the Attorney General for further treatment and evaluation of whether there is a substantial likelihood that he can be returned to competency pursuant to 18 U.S.C. § 4241(d). (Doc. No. 65.) The Court also ordered the Warden of FMC Butner to submit a proposed treatment plan for Sherrill, including a recommendation about what medication would be used. (Id. at 1–2.) The Court postponed briefing on the Government's Motion for Involuntary Medication to Restore Defendant to Competency until after all additional psychiatric evaluations regarding restoration of competency were completed. (Id. at 2.)
In a Forensic Addendum and Treatment Plan dated September 6, 2018, Dr. Logan Graddy, Chief Psychiatrist at FMC Butner, opined that "with reasonable medical certainty, involuntary medications are substantially likely to render Mr. Sherrill competent to stand trial." (Doc. No. 70 at 4.) Because he diagnosed Sherrill with "substance (amphetamine and inhalant)-induced psychotic disorder," Dr. Graddy concluded that "[i]f Mr. Sherrill is ordered to be treated with antipsychotic medication, the antipsychotic medication I will first offer Mr. Sherrill is haloperidol." (Id. at 2, 5.) Dr. Graddy also submitted an FMC Butner Sell Appendix discussing the potential side effects of antipsychotic medication. (Doc. No. 70-1.)
As explained infra, Dr. Graddy recommends administering haloperidol if Sherrill refuses to take oral test doses of other antipsychotic medications, including aripiprazole.
On October 3, 2018, the Court granted Defendant's Motion to Employ Expert Psychologist (Doc. No. 75) to determine if Dr. Graddy's Forensic Addendum and Treatment Plan is reasonable and necessary for Sherrill to be restored to competency. (Doc. No. 78.) In a Psychological Evaluation dated December 1, 2018, Dr. Lyn McRainey opined that, given the strength of Sherrill's delusions and steadfast refusal of medication, "it is difficult to imagine that giving him medication against his will is going to be successful." (Doc. No. 87-1 at 7–8.) Indeed, Dr. McRainey suggested that it may be possible for a psychiatrist to build enough therapeutic rapport with Sherrill to get him to take psychotropic medication voluntarily. (Id. at 7.) Based on Dr. McRainey's recommendation, the Court granted Sherrill's request to seek a psychiatric opinion on the limited issue of whether forced administration of the medication advised in Dr. Graddy's Forensic Addendum and Treatment Plan (haloperidol) is appropriate. (Doc. No. 89.)
In a Forensic Psychiatric Evaluation dated January 24, 2019, Dr. Stephen Montgomery opined that "Mr. Sherrill's mental health could be improved with antipsychotic medications," and that these medications "will likely enable Mr. Sherrill to be restored to competency to stand trial." (Doc. No. 96-1 at 1.) Dr. Montgomery further opined that haloperidol is an older antipsychotic medication and is more likely to cause undesirable side effects than newer medication available to Sherrill, such as aripiprazole, olanzapine, or risperidone. (Id. at 1–2.)
On February 7, 2019, the Government filed a motion (Doc. No. 99) following up on its August 9, 2018 Motion for Involuntary Medication to Restore Defendant to Competency (Doc. No. 62), and Sherrill filed a response in opposition (Doc. No. 101). On November 14, 2019, the Court held an evidentiary hearing on the Government's motion, during which Dr. McRainey testified as an expert on Sherrill's behalf, and Dr. Riley and Dr. Graddy testified as experts on the Government's behalf. (See Doc. No. 121.) On January 17, 2020, the parties submitted post-hearing briefs. (Doc. Nos. 124, 127). II. LEGAL STANDARD
For ease of reference, the Court will cite to the Transcript of Proceedings for the November 14, 2019 Evidentiary Hearing (Doc. No. 121) as "Tr."
Sherrill was returned to FMC Butner pending the Court's ruling on the issue of involuntary medication. (Doc. No. 120.)
"When the government seeks to involuntarily medicate a mentally incompetent defendant to restore his competency for trial, the government's prosecutorial interest must be balanced against the defendant's significant liberty interest under the Constitution in avoiding the unwanted administration of antipsychotic drugs." United States v. Berry, 911 F.3d 354, 357 (6th Cir. 2018) (quoting Sell v. United States, 539 U.S. 166, 178, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003) ) (internal quotation and punctuation marks omitted). To secure an order of involuntary medication, the Government bears a significant burden and must establish the following four " Sell factors" by clear and convincing evidence: "(1) the existence of an ‘important’ governmental interest; (2) that involuntary medication will ‘significantly further’ the government interest; (3) that involuntary medication is ‘necessary’ to further those interests; and (4) that administration of the drugs must be ‘medically appropriate’ for the individual defendant." United States v. Green, 532 F.3d 538, 545 (6th Cir. 2008) (quoting Sell, 539 U.S. at 180–81, 123 S.Ct. 2174 ).
"The Sell standard applies when the forced medication is requested to restore competency to a pretrial detainee and the pretrial detainee is not a danger to himself or others." United States v. Green, 532 F.3d 538, 545 n.5 (6th Cir. 2008). When the pretrial detainee is a potential danger to himself or others, the Court applies the standard set forth in Washington v. Harper, 494 U.S. 210, 227, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990). Id. (citing Sell, 539 U.S. at 185, 123 S.Ct. 2174 ). Because Sherrill is not a danger to himself or others in an institutional setting (see Doc. No. 99 at 4; see also Tr. 25:21–23; 85:17–22; 191:12–192:9), the parties agree that the Sell standard applies in this case.
III. ANALYSIS
The Government claims it has established all four Sell factors by clear and convincing evidence, and that, as a result, the Court should order the involuntarily administration of antipsychotic medication to restore Sherrill's competency to stand trial. (Doc. No. 124 at 11–12.) In response, Sherrill contends that the Government has not met its burden, and emphasizes that "[t]he drastic step of administering these powerful drugs to an unwilling criminal defendant should be taken rarely, and only when absolutely necessary to fulfill an important governmental interest." (Doc. No. 127 at 15 (citing Berry, 911 F.3d at 357 ).)
A. There is an Important Governmental Interest at Stake
The first Sell factor requires the Court to find the existence of an "important" governmental interest. Sell, 539 U.S. at 180, 123 S.Ct. 2174. "In order for important governmental interests to be at stake, the defendant must be charged with a serious crime, whether against person or property, the prosecution of which is needed to protect society's ‘basic human need for security.’ " Berry, 911 F.3d at 360 (quoting Sell at 180, 123 S.Ct. 2174 ). "If such a crime is charged, [the Court] must also examine ‘the facts of the individual case’ to determine if ‘special circumstances ... lessen the importance of [the government's] interest.’ " Id. (quoting Sell at 180, 123 S.Ct. 2174 ).
To determine whether a crime is "serious" for purposes of involuntary medication, courts in the Sixth Circuit look to the maximum penalty authorized by statute. United States v. Mikulich, 732 F.3d 692, 696–97 (6th Cir. 2013). If Sherrill is ultimately convicted of the crimes alleged in the Indictment, the maximum penalty authorized by statute is life imprisonment. See 21 U.S.C. §§ 841(b), 846. The Sixth Circuit has held that "a potential penalty of life imprisonment is ... serious enough to warrant forcible medication." See Berry, 911 F.3d at 360 ; Mikulich, 732 F.3d at 697. Sherrill also faces a statutory minimum sentence of ten years, and the Sixth Circuit in Green held that a drug trafficking crime carrying a mandatory statutory minimum sentence of ten years is sufficiently serious to satisfy the first Sell factor. 532 F.3d at 549. Thus, there is no doubt that Sherrill's alleged crimes are sufficiently serious to support the government's important interest in prosecuting him.
In determining whether the first Sell factor has been established, the Court must also consider any special circumstances that undermine the important governmental interest at stake. Sell, 539 U.S. at 180, 123 S.Ct. 2174. Here, Sherrill argues that there have been no medical opinions that he is a risk to himself or others in an institutional setting (Doc. No. 127 at 10–11; Tr. 85:17–22; 191:12–192:9), and the Court agrees that Sherrill's "lack of dangerousness" may be a mitigating factor that undercuts the governmental interest necessary to medicate him. Berry, 911 F.3d at 364–65 ("[T]he uncontested evidence that in his current setting [the defendant] poses no appreciable risk to himself or others undercuts the governmental interest necessary to medicate him."). However, "[n]o factor on its own outweighs the governmental interest." Id. at 364–66.
Sherrill also argues that his alleged crimes are non-violent, and the Sixth Circuit in Berry held that the non-violent nature of conveying false information about explosives militated against there being an important government interest. ( Doc. No. 127 at 10 (citing 911 F.3d at 364 ).) Unlike the defendant in Berry, however, Sherrill is charged with possession of Oxycodone and methamphetamine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and the Sixth Circuit in Green held that possession of crack cocaine with intent to distribute—which is also a violation of 21 U.S.C. § 841(a) —is "a ‘serious’ crime warranting a serious punishment." 532 F.3d at 549. Based on the holding in Green, the Court is not persuaded that the non-violent nature of Sherrill's alleged crimes undercuts the government's important interest here.
Sherrill further contends that his crimes cannot be that "serious" because the government allowed three additional alleged controlled drug purchases to occur before arresting him. (Doc. No. 127 at 11–12). Absent those additional transactions that artificially increased the drug quantities involved in this case, Sherrill argues, his potential penalty would have been less severe than the mandatory minimums he currently faces. (Id.) Regardless of whether this policy argument has merit, the Court is still bound by Sixth Circuit precedent holding that Sherrill's potential sentence makes his crimes "serious." Indeed, "the prescribed statutory penalty provides the most objective view of seriousness because it necessarily takes into account such factors as the nature of the crime, as well as the defendant's characteristics." Green, 532 F.3d at 550–51. Based on this standard, the number of controlled drug transactions involved in this case does not diminish the government's important interest in prosecuting Sherrill, and Sherrill provides no legal authority stating otherwise.
None of the other potentially mitigating circumstances mentioned in Sell exist in this case. For example, neither party argues that Sherrill should be civilly committed (see Tr. 173:18–175:5), which "would diminish the risks that ordinarily attach to freeing without punishment one who has committed a serious crime." Sell, 539 U.S. at 180, 123 S.Ct. 2174. Although Dr. Riley stated that "in the community, it is quite likely that [Sherrill] would continue to use [psychosis-inducing] substances" (Tr. 43:2–11), Sherrill's likelihood for commitment is far too speculative to diminish the government's interest in prosecution. Nor is there a "possibility that [Sherrill] has already been confined for a significant amount of time ... for which he would receive credit toward any sentence ultimately imposed." Sell at 180, 123 S.Ct. 2174. Having been confined for roughly thirty-one months since June 2017, Sherrill would still have to serve a significant amount of his ten year mandatory minimum sentence if he is convicted on Count One. See Green, 532 F.3d at 551 ("the government's important interest in prosecuting Green is not lessened by any special circumstances" because "if convicted, Green, having only been confined for three years, would still have the majority of a ten year mandatory minimum sentence to serve, at the least").
Because Sherrill's unique circumstances do not outweigh the government's important interest in prosecuting him, the government has established the first Sell factor by clear and convincing evidence.
B. Involuntary Medication Will Significantly Further The Government Interest
Once the Court finds that an important government interest exists, it must also find "that involuntary medication will significantly further those" interests. Sell, 539 U.S. at 181, 123 S.Ct. 2174. To this end, involuntary medication must be (1) "substantially likely to render the defendant competent to stand trial," but also (2) "substantially unlikely to have side effects that will interfere significantly with the defendant's ability to assist counsel in conducting a trial defense, thereby rendering the trial unfair." Id. The Sixth Circuit held that "[t]he standard is not certainty, but rather substantial probability" that the defendant would be restored to competency without unmanageable side effects. United States v. Payne, 539 F.3d 505, 509 (6th Cir. 2008).
1. Involuntary Medication is Substantially Likely to Render Sherrill Competent to Stand Trial
Given that Sherrill is diagnosed with a substance-induced psychotic disorder, the Government's experts agree that antipsychotic medication is substantially likely to render Sherrill competent to stand trial. Dr. Riley testified "that there is a high likelihood that [Sherrill] could be restored to competency with medication" (Tr. 55:21–23), and Dr. Graddy testified "with a reasonable [degree] of medical certainty" that "involuntary medication is substantially likely to render [Sherrill] competent to stand trial" (id. 123:22–25). And although Dr. Montgomery did not testify at the hearing, he concluded in his January 24, 2019 evaluation that antipsychotic medications "will likely enable Mr. Sherrill to be restored to competency to stand trial." (Doc. No. 96-1 at 1.)
Dr. Montgomery's January 24, 2019 evaluation (Doc. No. 96-1) was admitted in evidence at the November 14, 2019 hearing as Joint Exhibit 6.
Dr. McRainey did not dispute that antipsychotic medications would be "quite effective" and would likely enable Sherrill to be restored to competency. (Tr. 19:1–25; 21:4–8.) Instead, she focused her testimony on methods for Sherrill to voluntarily take medication because, in her words, "it is difficult to imagine that giving him medication against his will is going to be successful." (Id. 20:4–21:3; see also Doc. No. 87-1 at 7–8.) She testified that the better approach here is to engage Sherrill in additional counseling sessions two to three times a week for six months, build rapport with him, treat him for other potential underlying mental conditions such as post-traumatic stress disorder ("PTSD"), and work on overcoming his distrust in medicine and law enforcement, with the end goal of having Sherrill agree to take the medication voluntarily. (Tr. 10:1–11:16; 26:21–27:16).
The Court gives little weight to Dr. McRainey's alternative approach for several reasons. First, Dr. McRainey admitted that a person's willingness to take medication "has no impact on the chemical effectiveness of the drug" (id. 14:8–18; 16:13–18; 18:15–25), and Dr. Graddy testified that "[b]ased on my clinical experience [and] my review of the literature," whether a person wants to take a medication has no bearing on whether the medicine will ultimately be effective (id. 116:19–24). Second, Dr. Riley, who met with Sherrill on a monthly basis and conducted a competency evaluation of him at FMC Butner, testified that not only will "establishing rapport ... be extremely difficult," but also that "rapport alone will not result in Mr. Sherrill wanting to take medication ... [because] he views himself as not mentally ill in comparison to other people." (Id. 76:5–77:4.) Based on her evaluation, Dr. Riley concluded that "we're beyond the rapport-building stage" and Sherrill "will be resistant to taking medication voluntarily, which is why we are at this point of unfortunately requesting involuntary medication for him." (Id. 52:18–54:15; 77:2–4.) Even Dr. McRainey agreed that "at every juncture at which [Sherrill] has been asked to take medication thus far, he has adamantly refused to take medication." (Id. 30:10–13.) Last, Dr. McRainey's testimony about PTSD is irrelevant because there is no evidence that Sherrill has been diagnosed with PTSD, or that being treated for PTSD would have any effect on his current incompetency to stand trial.
Dr. McRainey's report states that "[t]reatment of a delusional disorder is known to be difficult and known to be controversial" (Doc. No. 87-1 at 8), but Sherrill was not diagnosed with a delusional disorder. (See Tr. 41:3–4; 116:16–18.) In any event, Dr. Riley testified that "treatment of any mental disorder is difficult," but "antipsychotic medication is the standard treatment for psychotic disorder, which is recommended by me and Dr. Graddy, as well as the defense expert." (Id. 56:7–57:1.) And Dr. Graddy testified that "delusional [dis]orders are fairly straightforward to treat with antipsychotic medication." (Id. 116:5–15.)
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Accordingly, there is clear and convincing evidence that involuntary medication is substantially likely to render Sherrill competent to stand trial.
2. Involuntary Medication is Substantially Unlikely to Have Side Effects that Will Interfere Significantly with the Defendant's Ability to Assist Counsel in Conducting a Trial Defense
Dr. Graddy testified that although there are some "very serious risks" associated with taking antipsychotic medications, those risks are "rare." (Tr. 117:4–8.) For example, patients taking antipsychotic medication are twice as likely to suddenly die from heart arrhythmias, but "it's still a very, very low risk." (Id. 117:9–23.) And roughly "one in a thousand" patients could suffer from neuroleptic malignant syndrome ("NMS"), which causes the body to overheat and results in death for ten percent of the patients who develop the syndrome, but Dr. Graddy has never seen someone develop NMS during the three years he's worked at FMC Butner. (Id. 103:2–3; 118:10–121:8.) Dr. Graddy also testified that there are some less serious metabolic side effects, such as potentially permanent diabetes, high cholesterol, and high blood pressure, and some neuromuscular side effects, such as acute dystonic reactions (i.e. sustained contraction of various muscle groups, which may affect muscles of the jaw, back, neck, eyes, and tongue), drug-induced Parkinsonism (i.e. muscle rigidity, resting tremor, and decreased spontaneous facial expression), dyskinesias (i.e. repetitive, involuntary movements), and akathisia (i.e. an uncomfortable inner sense of restlessness). (Id. 121:9–122:1; 145:21–150:5; see also Doc. No. 70-1 at 4–6.)
Dr. Graddy concluded that these potential side effects are unlikely to occur in this case because doctors and nurses at FMC Butner will administer Sherrill's medicine, regularly monitor his progress, and detect any signs or symptoms of side effects and deal with them immediately. (Tr. 117:24–118:9; 119:22–120:1; 184:13–22.) If Sherrill exhibits any problematic symptoms, the treating physicians will "either change the medicine or reduce the dose immediately." (Id. 124:6–125:1.) And in the rare instance where Sherrill exhibits adverse side effects, he can be treated with adjunctive medication such as benztropine to manage those symptoms. (Id. 146:18–23.) Dr. Graddy also testified that Sherrill will not receive large enough doses of medication to impair his ability to assist his counsel in conducting a trial defense. (Id. 146:18–23; 184:13–22.)
The Court finds Dr. Graddy credible and finds persuasive his testimony about potential side effects of antipsychotic medication. Accordingly, the Court resolves the second Sell factor in the Government's favor because it finds by clear and convincing evidence that involuntary medication is substantially unlikely to have side effects that will interfere significantly with Sherrill's ability to assist his counsel in conducting a trial defense. Being mindful of the potential side effects that could occur in this case, however, the Court will still include several restrictions on the authorized treatment to restore Sherrill's competency as described in the contemporaneous Order.
C. Involuntary Medication is Necessary to Further Those Interests
"Third, the court must conclude that involuntary medication is necessary to further those interests," and "that any alternative, less intrusive treatments are unlikely to achieve substantially the same results." Sell, 539 U.S. at 181, 123 S.Ct. 2174. As discussed above, Dr. McRainey testified that Sherrill should undergo further non-invasive therapeutic treatment before the Court orders involuntary medication, particularly if it would result in Sherrill deciding to take medication voluntarily. (Tr. 10:1–11:16.) Although therapeutic treatment is certainly less intrusive than involuntary medication, the Court disagrees that it would be a viable alternative at this stage.
At the evidentiary hearing, both Dr. Riley and Dr. Graddy discredited the potential success of Dr. McRainey's proposed therapeutic treatment. Dr. Riley conceded that "therapeutic efforts can be useful in combination with medicine," but "psychotropic medication is [the] standard course of treatment for individuals who are psychotic and have similar symptoms that Mr. Sherrill is presenting with." (Id. 86:2–89:13.) She further testified that "[i]t's unlikely that he would be restored to competency without medication ... [because] there are no other alternative treatments that would properly address [Sherrill's] symptoms," such as "talk therapy alone, rapport building, [and] having Mr. Sherrill for six months debate on whether or not he should even have medication treatment." (Id. 54:16–20; 86:2–87:3.) Dr. Graddy agreed that "less intrusive treatments are unlikely to achieve substantially the same results as involuntary medication if the defendant refuses to take medication," as is the case here. (See id. 126:11–19.)
Based on the foregoing testimony, the Court finds that additional therapeutic treatment would be futile in restoring Sherrill to competency. Moreover, spending an additional six months attempting to get Sherrill to voluntarily take medication would be a waste of time and resources, particularly given that Sherrill "does not believe that he has a mental illness" (id. 46:5–13) and, in Dr. McRainey's words, has "adamantly refused to take medication" "at every juncture at which he has been asked to take medication thus far" (See id. 22:3–23:4; 30:1–13.)
The Court finds that involuntary medication is necessary to further the Government's interest, and that there are no available, less intrusive treatments that are likely to achieve substantially the same result. Accordingly, the Government has established the third Sell factor by clear and convincing evidence.
D. Involuntary Medication is Medically Appropriate
The fourth and final factor requires the Court to "conclude that administration of the drugs is medically appropriate, i.e., in the patient's best medical interest in light of his medical condition." Sell, 539 U.S. at 181, 123 S.Ct. 2174. "The specific kinds of drugs at issue may matter here as elsewhere" because "[d]ifferent kinds of antipsychotic drugs may produce different side effects and enjoy different levels of success." Id.
Dr. Graddy submitted a proposed individualized treatment plan (Doc. No. 70 at 4–5) and testified that "the only medically appropriate treatment" for Sherrill's substance-induced psychotic disorder is antipsychotic medication. (Tr. 105:18–25; 184:5–12.) But given Sherrill's adamant refusal to take medication and because "he truly does not believe he has a mental illness" (id. 177:5–15), it is likely that "any medicine that will be given to [Sherrill] will have to be given by injection." (id. 106:1–10.) Dr. Graddy explained that before injecting a patient with medicine that may have a sustained and long-term antipsychotic effect (i.e. a "long-acting injection"), patients are required to first take test doses to see whether they are able to tolerate the medication. (Id. 106:11–21.) If a patient exhibited neuromuscular symptoms after taking a test dose, they would not be treated with long-acting injectable versions of those medications. (Id. 143:16–144:16.) These test doses come in the form of oral medication, which cannot be taken involuntarily, and short-acting injectables. (Id. 106:15–107:3.) If Sherrill agreed to voluntarily take medicine, Dr. Graddy would recommend administering aripiprazole or risperidone, neither of which is available in a short-acting injectable form. But in the likely event that Sherrill refused oral medication, the universe of antipsychotic medications available "in Mr. Sherrill's case [are] medicines that can be given by short-acting injection and then potentially long-acting injection," and include olanzapine, fluphenazine, and haloperidol. (Id. 106:15–107:3; 108:7–22; 109:15–19.) Of these three options, Dr. Graddy testified that he was not recommending olanzapine for Mr. Sherrill because it carries some substantial metabolic side effects, including weight gain, post-injection delirium, and sedation syndrome. (Id. 108:18–109:14.)
If the Court orders involuntary medication, Dr. Graddy testified that he would first discuss the risks and benefits of the available medications with Sherrill and encourage him to take aripiprazole orally. (Id. 114:10–16; 129:3–7.) Although temporary akathisia is a potential side effect of this medication, aripiprazole still has fewer side effects than haloperidol or fluphenazine. (Id. 113:2–11.) If Sherrill does not comply with oral medication, FMC Butner staff will give him a long-acting injection of aripiprazole or risperidone if, and only if, he previously took those medications orally and was able to tolerate them. (Id. 140:24–142:14.) Otherwise, Sherill will be asked to take a short-acting injection of either haloperidol or fluphenazine. (Id. 141:17–142:8.) Dr. Graddy testified that haloperidol is the most appropriate medication for Sherrill, and that he has personally prescribed haloperidol to over a thousand patients. (Id. 109:16–25; 111:8–13.) Although haloperidol is associated with an elevated risk of neuromuscular side effects and muscle stiffness, "it is a medicine that has been around a long time, ... has been well studied, and is quite safe." (Id. 109:16–25; 149:7–13; 184:23–185:9.) As "a last alternative" if Sherrill refuses the court-ordered injection, a use of force team may be used to place him into correctional restraints, medicate him, monitor him, administer lorazepam to calm him down if necessary, and then release him pursuant to the Bureau of Prisons' Use of Force and Application of Restraints policy (Doc. No. 124-1), Psychiatric Services policy (Doc. No. 124-2), and Use of Seclusion & Restraints with Mental Health Patients, Medical/Surgical Adaptive and Protective Devices, Precautionary Medical Restraints policy (Doc. No. 124-3). (See Tr. 136:11–139:17; 152:20–153:3.)
Because Sherrill is unlikely to improve or be restored to competency without antipsychotic medication, the Court finds that it is medically appropriate and in Sherrill's best interest in light of his medical condition for FMC Butner Staff to administer a treatment plan that seeks Sherrill's voluntary compliance throughout the process, monitors for any side effects, and adjusts treatment options whenever necessary in his treating physicians' medical judgment. Accordingly, the Government has established the fourth Sell factor by clear and convincing evidence.
IV. CONCLUSION
For the foregoing reasons, the Government's Motion for Involuntary Medication to Restore Defendant to Competency (Doc. No. 99) will be granted with conditions identified in the accompanying Order.
An appropriate order will enter.