Opinion
Civ. No. 02-1506-HU.
September 23, 2004
Samuel Earl Wilson, Umatilla, Oregon, Pro se.
Hardy Myers, Oregon Attorney General, Leonard W. Williamson, Senior Assistant Attorney General, Department of Justice Salem, Oregon, Attorneys for defendants.
FINDINGS AND RECOMMENDATION
Plaintiff is currently serving a criminal sentence imposed by the Circuit Court for Multnomah County, Oregon. He filed his original complaint in this action on November 4, 2002, alleging that antipsychotic drugs had been administered to him without his consent after he was involuntarily admitted to Oregon State Hospital.
The court has previously dismissed several defendants and claims from the original, Amended, and Second Amended complaints. The claims that remain are for violation of plaintiff's due process rights under the Fourteenth Amendment, asserted against Dravis and Mead, and for violation of his rights under the Free Exercise clause of the First Amendment, asserted against defendants Dravis, Mead, Fritz and Mazur-Hart. Defendants move for summary judgment on the grounds of qualified immunity and quasi-judicial immunity, and for dismissal of the claim for injunctive relief. Plaintiff has filed motions to compel additional discovery.
Factual Background
On July 31, 2001, plaintiff underwent a court-ordered evaluation at Oregon State Hospital (OSH), pursuant to Or. Rev. Stat. § 161.365. The examiner, Genevieve Arnaut, Ph.D., concluded that plaintiff showed no clear evidence of mental disease or defect and appeared able to understand the charges against him and the fundamentals of legal proceedings, as well as to assist in his defense and cooperate with counsel. Affidavit of Donald Dravis, M.D., Attachment 2, p. 9.
In May 2002, plaintiff was again admitted to OSH, from the Multnomah County Detention Center where he had been incarcerated since April 2001, for another court-ordered evaluation. The examiner was defendant Dravis. At that time, plaintiff was receiving no medications and denied any history of psychiatric hospitalization, outpatient psychiatric treatment, or treatment with antipsychotic medications. Dravis Affidavit, Attachment 3.
Dr. Dravis recorded that during the evaluation, plaintiff said he had been incarcerated for Burglary in the First Degree and Unauthorized Use of a Weapon, but additional charges were later added because plaintiff was unwilling to enter into a plea agreement or waive his right to a speedy trial. Plaintiff told Dr. Dravis the other charges included two counts of Attempted Aggravated Murder, two counts of Robbery, two counts of Assault, Tampering with a Witness, and Felon in Possession of a Firearm.
Dr. Dravis noted that plaintiff suggested that the additional charges were the result of a conspiracy between prosecutors and defense counsel, and said the reason he had been sent for evaluation was because it was the only delay available to attorneys who were not prepared to proceed with his case. Plaintiff told Dr. Dravis that the Supreme Court would soon be reviewing his case, and that the state of Oregon had "until tomorrow to produce `probable cause' for the charges against him or dismiss those charges."Id.
In Dr. Dravis's opinion, plaintiff's thought structure was disorganized and tangential at times, and he described a number of apparently delusional beliefs, both paranoid and grandiose, about his legal situation. Id. However, plaintiff's affect was normal, he was adequately oriented in all spheres, his memory was intact, and his judgment was unimpaired. Plaintiff denied any history of suicidal ideation, suicide attempts, or current suicidal thoughts. Id. Dr. Dravis's Axis I diagnosis was rule out psychotic disorder, not otherwise specified; Axis II diagnosis was deferred. Id.
Dr. Dravis states in his affidavit that he made two attempts to obtain plaintiff's consent to treatment with antipsychotic medication. Dravis Affidavit, ¶ 5. After the second attempt, Dr. Dravis documented the reasons he thought plaintiff was unable to give informed consent: first, that plaintiff insisted he was not mentally ill and did not need the proposed treatment; second, that plaintiff had accused Dr. Dravis of conspiring with his attorneys, the county, and the prosecution against him; and third, that plaintiff suggested Dr. Dravis obtained financial gain from saying people were unable to proceed in court and were in need of treatment when they were not.
Because Dr. Dravis believed plaintiff was incapable of consenting to treatment, he arranged for plaintiff to undergo an independent evaluation by an outside provider, Richard J. Mead, M.D., an independent examiner. Dravis Affidavit, ¶ 6. Oregon regulations require evaluation by an outside provider before antipsychotic medication is administered to a non-consenting patient. OAR 309-114-0020(2)(a).
Dr. Mead completed his evaluation on May 14, 2002. He reported that plaintiff had immediately "demonstrated his delusional and paranoid thinking" by telling Dr. Mead of his "right to have audio recordings of meetings" so that he could appeal what happened to him. Dravis Affidavit, Attachment 6. Dr. Mead opined that when speaking, plaintiff "demonstrates disorganized thinking and disassociated speech. I was able to catch phrases, but he is not able to talk in a fluid, connected, and fully coherent manner." Id. Dr. Mead believed plaintiff was "psychotic," with symptoms of disorganized thinking, dissociative speech, paranoia and delusional thinking. Id. Dr. Mead believed these symptoms could be alleviated by administration of the proposed medication.Id.
On May 15, 2002, pursuant to OAR 309-114-0020(1) and (4)(a), OSH Chief Medical Officer Steven E. Fritz, M.D., reviewed the reports of Doctors Dravis and Mead. Dr. Fritz concurred that plaintiff was incapable of informed consent, and notified plaintiff that the treatment would be administered without his consent. Dravis Affidavit, Attachment 7.
Plaintiff was given the first dose of olanzapine on the evening of May 23, 2002. He continued to receive that medication for the next seven to eight weeks. Dravis Affidavit, ¶ 13. He complied with the treatment course by taking the medication.
On July 17, 2002, plaintiff informed OSH medical staff that he no longer wished to take olanzapine. Plaintiff's treatment team concurred, and his medication was discontinued on that date. Dravis Affidavit, ¶ 14, Defendants' Exhibit 101. Plaintiff was discharged from OSH on August 7, 2002 and returned to the Multnomah County Jail to await trial.
Standards
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment is not proper if material factual issues exist for trial. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 116 S.Ct. 1261 (1996).
On a motion for summary judgment, the court must view the evidence in the light most favorable to the non-movant and must draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001).
Discussion
1. Quasi-judicial absolute immunityDefendants contend that because they acted as the "arm of the court" in evaluating and treating plaintiff pursuant to a court order, they are entitled to quasi-judicial absolute immunity. The proponent of a claim to absolute immunity bears the burden of establishing the justification for such immunity. Antoine v. Byers Anderson, Inc., 508 U.S. 429, 432 (1993).
Defendants rely on the concurring opinion of Judge Trott inKulas v. CSO Valdez, 159 F.3d 453 (9th Cir. 1998). In Kulas, a trial judge ordered the plaintiff committed for an evaluation period of 45 days; while plaintiff was at the hospital being evaluated, the treating physician ordered plaintiff to take antipsychotics against his will. Plaintiff brought an action against the judge and the physician. The district court entered judgment for the defendants. The Court of Appeals panel divided, with Judges Noonan and Trott holding that the judge was entitled to absolute immunity and the physician to qualified immunity, and Judge Wallach dissenting. In his concurring opinion, Judge Trott stated his belief that a "case could be made" for the proposition that the doctor was entitled to quasi-judicial immunity because he was executing a court order. 159 F.3d at 457.
Under the circumstances of Kulas, I am not persuaded that Judge Trott's opinion should be regarded as precedential authority. Further, I believe his position is undermined by Antoine, where the Supreme Court held that absolute immunity shields only those who perform a function that enjoyed absolute immunity at common law, and that the "touchstone" for such immunity is "performance of the function of resolving disputes between parties, or of authoritatively adjudicating private rights." Id. at 436, quoting Burns v. Reed, 500 U.S. 478, 500 (1991) (Scalia, J., concurring in part and dissenting in part). Thus, the mere fact that actions are taken with court approval or under a court's direction, is not, in and of itself, enough to confer quasi-judicial absolute immunity. Id. at 435-36. Rather, absolute immunity is conferred only when the official is performing a duty functionally comparable to one for which officials were rendered immune at common law. Id.
I recommend that defendants' motion for absolute quasijudicial immunity be denied.
2. Qualified immunity
Qualified immunity is a "judicially-crafted device giving a large measure of protection to the exercise of judgment by public officials." Bernstein v. Lopez, 321 F.3d 903, 905 (9th Cir. 2003). The qualified immunity defense gives government officials a right not merely to avoid standing trial, but also to avoid the burdens of such pretrial matters as discovery. Behrens v. Pelletier, 516 U.S. 299, 308 (1996); Ganwich v. Knapp, 319 F.3d 1115, 1119 (9th Cir. 2003).
Public officials are entitled to qualified immunity 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). Qualified immunity is an affirmative defense to damage liability; it does not bar actions for declaratory or injunctive relief. American Fire, Theft Collision Managers, Inc. v. Gillespie, 932 F.2d 816, 818 (9th Cir. 1991).
In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court articulated the test for qualified immunity. First, a qualified immunity analysis must begin with this threshold question: based upon the facts taken in the light most favorable to the party asserting the injury, did the officer's alleged conduct violate a constitutional right? Id. at 201. If no constitutional right was allegedly violated, the court need not inquire further. Id. If, however, a constitutional violation allegedly occurred, the second inquiry is whether the right was clearly established.Id.
The inquiry into whether rights were clearly established should be conducted by looking at the application of the constitutional right in its particularized context. Anderson v. Creighton, 483 U.S. 635, 639 (1987); Saucier, 533 U.S. at 201 (inquiry into whether a constitutional right was violated "must be undertaken in light of the specific context of the case, not as a broad general proposition"). The "contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Alexander v. County of Los Angeles, 64 F.3d 1315, 1319 (9th Cir. 1995), citing Anderson, 483 U.S. at 640.
If violation of a clearly established constitutional right has been shown, the third inquiry is whether the officer could nevertheless have reasonably, but mistakenly believed that his or her conduct did not violate a clearly established constitutional right. Saucier, 533 U.S. at 206.
a. Free Exercise clause
Plaintiff asserts that his First Amendment right to free exercise of his religion was violated by the defendants. Free exercise claims are traditionally analyzed under the balancing test established in Sherbert v. Verner, 374 U.S. 398, 402-03 (1963). Under the Sherbert test, conduct violates the Free Exercise Clause if it substantially burdens a religious practice and either is not justified by a substantial state interest or is not narrowly tailored to promote that interest. Vernon v. City of Los Angeles, 27 F.3d 1385, 1392 (9th Cir. 1994);American Family v. City County of San Francisco, 277 F.3d 1114, 1123 (9th Cir. 2002).
Defendants assert that there is no evidence to substantiate this claim. I agree. Although plaintiff asserts in his complaint that he is a member of the Christian faith, which requires that he maintain a practice of living free from any and all chemicals, including medicines, there is no evidence in the record to support this statement, and there is no indication in the record that plaintiff based his refusal to take antipsychotic medication on a religious belief. Likewise, there is nothing in the record to suggest the Christian faith prohibits the use of prescription antipsychotic drugs. Because plaintiff has failed to meet his burden of showing that defendants violated a clearly established constitutional right, defendants are entitled to qualified immunity.
b. Due Process
As defendants concede, an individual has a clearly-established constitutionally protected liberty interest in avoiding the unwanted administration of antipsychotic medication. Sell v. United States, 539 U.S. 166, 178 (2003), citing Washington v. Harper, 494 U.S. 210, 221 (1990); see also Riggins v. Nevada, 504 U.S. 127, 135 (1992) (involuntary administration of antipsychotic drugs on a prisoner or a detainee awaiting trial is impermissible "absent a finding of overriding justification and a determination of medical appropriateness.").
However, the inquiry into whether rights are clearly established is to be conducted in a "particularized" manner rather than a general one. LSO Ltd. v. Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000). The right referenced by the qualified immunity test is not a general constitutional guarantee, but its application in a particular context. Id. at 1158. For purposes of this case, the inquiry must be whether a criminal defendant, charged with serious offenses against persons and property, who is referred by the court for an "aid and assist" evaluation, can be administered antipsychotic drugs against his will after an institutional finding that the medication is likely to render the defendant capable of aiding and assisting, and other less intrusive means would be less effective in doing so. The Sell, Harper, andRiggins cases are instructive.
In Harper, the Court considered a challenge to a state law authorizing forced administration of antipsychotic drugs to "inmates who are . . . gravely disabled or represent a significant danger to themselves or others." Id. at 226. The state had established "by a medical finding" that Harper, a mentally ill prison inmate, had a mental disorder likely to cause harm if not treated. Id. at 222. The treatment decision had been made by a psychiatrist and approved by a reviewing psychiatrist, and ordered on the ground that it was "in the prisoner's medical interests, given the legitimate needs of his institutional confinement." Id.
The Court held that the state's interest in administering medication was legitimate and important, and held further that the Due Process Clause permits the state to treat a prison inmate who has serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate's medical interest. Id. at 227. The Court concluded that the state law permitting involuntary treatment was a constitutionally permissible "accommodation between an inmate's liberty interest in avoiding the forced administration of antipsychotic drugs and the State's interests in providing appropriate medical treatment to reduce the danger that an inmate suffering from a serious mental disorder represents to himself or others." Id. at 236.
In Riggins, the Court clarified that only an "essential" or "overriding" state interest can overcome the individual's constitutionally protected liberty interest in avoiding involuntary administration of antipsychotic drugs. 504 U.S. at 134, 135. The Court found no such state interest in Riggins, holding that the state "would have satisfied due process if the prosecution had demonstrated . . . that treatment with antipsychotic medication was medically appropriate and, considering less intrusive alternatives, essential for the sake of Riggins' own safety or the safety of others," or by establishing that it could not obtain an adjudication of Riggins' guilt or innocence of a murder charge by using less intrusive means. 504 U.S. at 135.
In Sell, the Court was presented with the question of whether the constitution permits the government to administer antipsychotic drugs involuntarily to a mentally ill criminal defendant in order to render that defendant competent to stand trial for serious, but nonviolent, crimes. 539 U.S. at 169. The Court held that the Constitution does allow the government to do so, but only in limited circumstances.
The Court began by holding that Harper and Riggins
indicate that the Constitution permits the Government involuntarily to administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render the defendant competent to stand trial, but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trialrelated interests.Sell, 539 U.S. at 179. The Court went on to note that this standard permits involuntary administration of drugs solely for trial competence purposes in "rare" instances. Id. at 180.
The Court in Sell found such an important interest in "bringing to trial an individual accused of a serious crime" against a person or against property. This interest is demonstrated by the record in this case, which shows that on November 15, 2002, plaintiff was found guilty of one count of Attempted Aggravated Murder, Burglary, Assault 3, Use of a Dangerous Weapon, and being a felon in possession of a firearm. Defendants' Exhibit 104.
But at this point, the circumstances of the present case depart from the guidelines of Sell, Riggins and Harper because the involuntary medication was not ordered by the court, but instead recommended by Doctors Dravis and Mead and ordered by Dr. Fritz. It was the defendants themselves, not the court, who determined that involuntary medication was substantially likely to render plaintiff competent to stand trial, unlikely to have side effects that interfered significantly with his ability to aid and assist, and that alternative, less intrusive treatments were unlikely to achieve substantially the same results.
This raises the question of whether, even assuming that plaintiff's liberty interest was violated, that right was clearly established at the time of the events which gave rise to this action. It is plaintiff's burden to show that the right he alleges to have been violated was clearly established. Doe v. Petaluma City Sch. Dist., 54 F.3d 1447, 1450 (9th Cir. 1995). Unless the contours of the plaintiff's right are sufficiently clear that a reasonable official would understand that what he is doing violates that right, see, e.g., Alexander, 64 F.3d at 1319 and Anderson, 483 U.S. at 640, a constitutional right cannot be said to be clearly established. "This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of preexisting law the unlawfulness must be apparent." Anderson, 483 U.S. at 640.
Sell, of course, had not yet been decided at the time of the events in this case. Defendants' conduct did, however, comply with administrative rules which govern treatment at OSH. These rules were promulgated pursuant to a consent decree entered in a class action, Burke et al. v. Weissert et al., Civil No. 138674, litigated in Marion County in 1987. The Burke case challenged the involuntary administration of antipsychotic drugs and electroconvulsive therapy to adult mental patients at OSH.
An officer who acts in reliance on a duly enacted statute or ordinance is ordinarily entitled to qualified immunity. Grossman v. City of Portland, 33 F.3d 1200, 1209-10 (9th Cir. 1994). See also Dittman v. California, 191 F.3d 1020, 1027 (9th Cir. 1999) (same). I am not persuaded that plaintiff has demonstrated that defendants violated his clearly established right, but even if the law as it existed at the time could arguably have put defendants on notice of a constitutional violation, I conclude, on the basis of defendants' adherence to the procedural safeguards mandated by the Oregon Administrative Rules, that they could reasonably have believed that their conduct did not violate plaintiff's rights. I recommend that defendants' motion for qualified immunity be granted.
3. Injunctive Relief
Defendants assert that plaintiff's request for injunctive relief should be dismissed because "there is no very significant possibility that is both real and immediate that plaintiff will be harmed in the future by any unconstitutional practices." Defendants' memorandum, p. 2.
In City of Los Angeles v. Lyons, 461 U.S. 95 (1983) the Supreme Court held that the plaintiff, who had been placed in a chokehold by the police, had failed to satisfy the "case or controversy" requirement necessary for injunctive relief because he could not establish a real and immediate threat that he would again be stopped for a traffic or other offense by a police officer or officers who would again illegally choke him. 461 U.S. at 105-06.
I agree that plaintiff has not made a showing that the defendants are likely again to administer antipsychotic medication to the plaintiff against his will. I recommend that the claim for injunctive relief be dismissed.
4. Motion to compel
Plaintiff moves to compel additional discovery from the defendants. The court-ordered deadline for completion of discovery was April 19, 2004. Plaintiff filed his first motion to compel on May 5, 2004, and filed an additional motion on July 29, 2004.
Plaintiff seeks the following additional discovery from the defendants:
1. A copy of all grievances and complaints filed against all defendants by OSH patients between September 1, 2001 and March 30, 2003, with patient names and confidential information redacted;
2. A copy of all documents (visitor forms, recreation sheets, patient account receipts, notary records, etc.) containing an endorsement of plaintiff's signature obtained while at OSH and relevant to this case;
3. The letter plaintiff sent to defendant Mazur-Hart, placed in defendant Mazur-Hart's private mailbox;
4. The list of independent examining physicians used by OHS from January 1, 2002 through January 1, 2004; and
5. All dates on which each of the independent examining physicians was consulted and conducted interviews of OSH patients for the purpose of approving the administration of "significant procedures" pursuant to OAR 309-114-0020(2)(a) between January 1, 2002 and January 1, 2004.
These discovery requests are burdensome and unlikely to lead to relevant information. I deny these motions.
I recommend that defendants' motion for summary judgment on the ground of qualified immunity (doc. # 45) be GRANTED. Plaintiff's motions to compel (doc. ## 58, 60) are DENIED.
Scheduling Order
The above Findings and Recommendation will be referred to a United States District Judge for review. Objections, if any, are due October 7, 2004. If no objections are filed, review of the Findings and Recommendation will go under advisement on that date. If objections are filed, a response to the objections is due October 21, 2004, and the review of the Findings and Recommendation will go under advisement on that date.