MEMORANDUM OPINION
BERYL
A. HOWELL CHIEF JUDGE
The
plaintiff, Markelle Seth, challenges his continued civil
confinement “in federal prison despite not having been
convicted of any crime, ” by virtue of the
defendants' decision not to assume responsibility for his
custody, care, and treatment, Compl. ¶ 1, ECF No. 1,
after he was found incompetent to face a federal criminal
charge of production of child pornography, in violation of 18
U.S.C. § 2251(b), id. ¶¶ 32, 34, 37,
and was subjected to federal civil commitment proceedings in
the Eastern District of North Carolina, where he was being
held, id. ¶¶ 40-41. Less than one month
after the filing of the instant complaint, the federal civil
commitment proceedings concluded with a judicial finding, by
clear and convincing evidence, that “as a result of
Seth's current mental condition, “his release would
create a substantial risk of bodily injury to another person
or serious damage to the property of another, ” such
that he was ordered civilly committed to the custody and care
of the Attorney General, under 18 U.S.C. § 4246. Order,
dated May 24, 2018 (“E.D. N.C. Commitment Order”)
at 1, United States v. Seth, No. 17-hc-2090 (E.D.
N.C. filed May 25, 2018). The instant complaint seeks,
inter alia, “injunctive relief requiring
Defendants” District of Columbia, District of Columbia
Department on Disability Services (“DDS”), and
Andrew Reese, in his official capacity as Director of DDS
(collectively, “defendants”), to “promptly
accept physical and legal custody of” Seth, Compl. at
48, based on four alleged violations of federal and local
antidiscrimination laws, including Title II of the Americans
with Disabilities Act of 1990 (“ADA”), 42 U.S.C.
§ 12131 et seq.; Section 504 of the
Rehabilitation Act of 1973 (“RA”), 29 U.S.C.
§ 794; the District of Columbia Human Rights Act of 1997
(“DCHRA”), D.C. Code § 2-1401.01 et
seq.; and the Citizens with Intellectual Disabilities
Civil Rights Restoration Act of 2015 (“CIDA”),
D.C. Code § 7-1301.01 et seq.
The
defendants have moved to dismiss the complaint, pursuant to
Federal Rule of Civil Procedure 12(b)(6), contending that
Seth has failed to state a claim upon which relief can be
granted under the ADA, RA, DCHRA, or CIDA. See
generally Defs.' Mot. Dismiss Pl.'s Compl.
(“Defs.' Mot.”) at 1, ECF No. 19. Meanwhile,
Seth has moved for an order directing the Bureau of Prisons
(“BOP”) to permit expert access to Federal
Medical Center (“FMC”) Butner to interview the
plaintiff. See generally Pl.'s Mot. Requesting
Order (“Pl.'s Mot.”), ECF No. 24. While a
discrimination action is a creative effort to bring attention
to this troubling situation, the allegations fail to support
claims under the antidiscrimination laws and ultimately
cannot provide the relief Seth seeks. Thus, for the reasons
explained below, the defendants' motion is granted, and
Seth's motion is accordingly denied as moot.
I.
BACKGROUND
The
statutory framework regarding federal competency
determinations and civil commitment is discussed first,
followed by the factual and procedural history of this case.
A.
Statutory Framework
Congress
established, in the Insanity Defense Reform Act of 1984
(“IDRA”), Pub. L. No. 98-473, 98 Stat. 2057, a
“three-stage statutory process pursuant to which
competency determinations are made.” United States
v. Weissberger, 951 F.2d 392, 395 (D.C. Cir. 1991).
First, upon motion by either party, “a court may order
a competency evaluation committing a defendant for a period
not exceeding 30-days if the court has ‘reasonable
cause' to believe that the individual may be incompetent
to stand trial.” Id. (quoting 18 U.S.C. §
4241(a)). The results of that evaluation are presented at an
adversarial hearing, “at which the judge determines
whether a preponderance of the evidence indicates that the
defendant is incompetent.” Id. at 396 (citing
18 U.S.C. §§ 4241(a), (d)). Second, “upon a
finding of incompetency, the court may commit the defendant
for a ‘reasonable time, not to exceed four months . . .
to determine whether there is a substantial probability that
in the foreseeable future he will attain the capacity to
permit the trial to proceed.” Id. (alteration
in original) (quoting 18 U.S.C. § 4241(d)(1)). Finally,
at the end of that second confinement, “another hearing
is held to determine if the defendant is a long-term
incompetent and sufficiently dangerous to require indefinite
institutionalization.” Id. (citing 18 U.S.C.
§§ 4241(d), 4246). If the court determines that
“the defendant's mental condition has not so
improved as to permit the proceedings to go forward, ”
the defendant is then “subject to the provisions of
sections 4246 and 4248.” 18 U.S.C. § 4241(d).
Sections
4246 and 4248, in turn, provide for the continuing commitment
of a person “in the custody of the Bureau of Prisons
whose sentence is about to expire, or who has been committed
to the custody of the Attorney General pursuant to section
4241(d), or against whom all criminal charges have been
dismissed solely for reasons related to the mental condition
of the person.” Id. § 4246(a); see
also Id. § 4248(a). Under § 4246, if
“the director of a facility” in which such a
person is hospitalized certifies that the person “is
presently suffering from a mental disease or defect as a
result of which his release would create a substantial risk
of bodily injury to another person or serious damage to
property of another, and that suitable arrangements for State
custody and care of the person are not available, ” the
court for the district in which the person is confined
“shall order a hearing to determine whether the person
is presently suffering from a mental disease or defect as a
result of which his release would create a substantial risk
of bodily injury to another person or serious damage to
property of another.” Id. §
4246(a).[1]
If,
after that hearing, “the court finds by clear and
convincing evidence that the person is presently suffering
from a mental disease or defect as a result of which his
release would create a substantial risk of bodily injury to
another person or serious damage to property of another, the
court shall commit the person to the custody of the Attorney
General.” Id. § 4246(d). At the same
time, the IDRA expresses “a clear preference for state
placement, if and when available, of those committed
federally.” United States v. Volungus, 595
F.3d 1, 10 (1st Cir. 2010). Specifically, the IDRA provides
that the detainee “shall” be released “to
the appropriate official of the State in which the person is
domiciled or was tried if such State will assume
responsibility for his custody, care, and treatment, ”
18 U.S.C. § 4246(d), and the Attorney General
“shall make all reasonable efforts to cause such a
State to assume such responsibility, ” id. See also
United States v. Wigren, 641 F.3d 944, 947 (8th Cir.
2011) (“Congress presumably thought the States should
bear responsibility for the care of mentally ill persons from
their jurisdictions, and the IDRA thus imposes a duty on the
Attorney General to pursue state placement.” (internal
citation omitted) (citing S. Rep. No. 225, 98th Cong., 1st
Sess. 208 (1984), reprinted in 1984 U.S.C.C.A.N.
3182 (1984))).
If the
State declines to assume responsibility for the person,
“the Attorney General shall hospitalize the person for
treatment in a suitable facility” until either (1) the
State assumes that responsibility, or (2) the person's
medical condition improves such that “his release, or
his conditional release under a prescribed regimen of
medical, psychiatric, or psychological care or treatment
would not create a substantial risk of bodily injury to
another person or serious damage to property of another,
” whichever happens first. 18 U.S.C. §
4246(d)(1)-(2). If no State assumes that responsibility, the
Attorney General must “continue periodically to exert
all reasonable efforts to cause such a State to assume such
responsibility for the person's custody, care, and
treatment.” Id. § 4246(d).
The
IDRA also provides for regular review of and challenges to a
person's ongoing federal civil commitment. When a person
is federally committed pursuant to 18 U.S.C. § 4246, the
director of the facility to which that person is committed
must “prepare annual reports concerning the mental
condition of the person and containing recommendations
concerning the need for his continued commitment, ”
which reports are submitted to the court that ordered the
commitment. Id. § 4247(e)(B). If the director
“determines that the person has recovered from his
mental disease or defect to such an extent that his release
would no longer create a substantial risk of bodily injury to
another person or serious damage to property of another, he
shall promptly file a certificate to that effect with the
clerk of the court that ordered the commitment.”
Id. § 4246(e). The court must then “order
the discharge of the person or, on the motion of the attorney
for the Government or on its own motion, ” shall
“hold a hearing . . . to determine whether he should be
released.” Id. Upon a finding, by a
preponderance of the evidence, that the person could be
released or “conditional[ly] released under a
prescribed regimen of medical, psychiatric, or psychological
care or treatment” without “creat[ing] a
substantial risk of bodily injury to another person or
serious damage to property of another, ” id.
§ 4246(e)(2), the court “shall” order the
person's release, with the appropriate conditions,
id. § 4246(e)(2)(A)-(B). In addition, “at
any time during such person's commitment, ” the
committed person's counsel or legal guardian may
“file with the court that ordered the commitment a
motion for a hearing to determine whether the person should
be discharged from such facility, ” provided that
“no such motion may be filed within one hundred and
eighty days of a court determination that the person should
continue to be committed.” Id. § 4247(h).
B.
Seth's Background
Seth is
a resident of the District of Columbia with an intellectual
disability. Compl. ¶ 1. When he was three months old,
Seth was “removed from his mother's care through
neglect proceedings” and placed in the orphanage at St.
Ann's Infant Home located in Hyattsville, Maryland.
Id. ¶ 24. He “spent time in two separate
foster care homes before he was placed with his father in
1997, at the age of three.” Id. Seth
experienced “childhood seizures from infancy until he
was about six years old, ” id. ¶ 25, and
“had significant delays in reaching developmental
milestones, including not being able to sit up on his own
until age four and not being able to crawl until age five,
” id. In elementary school, he was
“identified as having a disability and placed in
special education classes, ” eventually receiving an
“Individualized Education Program (‘IEP')
that focused on supporting his learning activities across a
broad array of areas.” Id. ¶ 26. By the
time Seth reached the twelfth grade, his “standardized
testing scores reflected math skills at a fourth-grade level,
reading skills at a second-grade level, and writing skills at
a first-grade level.” Id. ¶ 27.
Seth's
developmental disabilities and behavioral problems were
evident to the Magistrate Judge presiding over his initial
appearance following his arrest on the criminal charge and
subsequent status hearings. The Magistrate Judge noted that,
at one hearing, Seth “continuously fidgeted in his
chair and did not appear to be paying attention, ” and
at another hearing, he “spent the majority of the time
coloring.” Report & Recommendation
(“R&R”) at 14, United States v.
Seth, No. 14-mj-608 (D.D.C. filed Dec. 1, 2016), ECF No.
75.[2]
During the competency hearing, the Magistrate Judge noted
that, “[f]or the bulk of the hearing, ” Seth
“was either distracted or engaging in otherwise
inappropriate courtroom behavior, ” such as
“plac[ing] his hands over his ears as if to block out
testimony that he was hearing, ” and he “spent a
portion of the second day of the hearing with his head on the
table.” Id. at 26.
On
April 17, 2015, in connection with Seth's underlying
criminal proceedings, which are discussed in greater detail
below, the DDS found that Seth “meets all three
criteria for intellectual disability.” Compl. ¶
30.[3]
Seth now “receives federal Supplemental Security Income
benefits based on his disability, and he has been evaluated
and found eligible for services as an adult with intellectual
disability by Defendant DDS.” Id. ¶ 31.
This Court later found that Seth's full-scale IQ score
“hovers somewhere between fifty-three and sixty-five,
landing at the bottom one percent of his age group regardless
of where in that range it falls.” R&R at 33
(adopted by the undersigned on December 22, 2016); see
also Id. at 6 (noting that “[Seth] has been
diagnosed with various mental impairments at different points
in his life, but Intellectual Disability, Mild
(‘IDM') is the diagnosis that most aptly captures
his condition”). Throughout the proceedings detailed
below, various psychologists and psychiatrists have diagnosed
Seth with “Autism Spectrum Disorder, ”
id. at 10, and with IDM, id. at 15.
C.
Seth's Competency Proceedings in the District of
Columbia
On
October 16, 2014, Seth was arrested and charged in this Court
with “one count of production of child pornography for
allegedly using his cell phone to videotape two children in
his household engaging in sexual behavior with him, in
violation of 18 U.S.C. § 2251(a).” Compl. ¶
32.[4]
Seth's initial appearance before a Magistrate Judge on
that charge took place the same day, at which hearing the
Magistrate Judge, upon “the insistence of [Seth's]
counsel, ” ordered a preliminary competency screening
with the District of Columbia Department of Behavioral
Health, Pretrial and Assessment Branch (“DBH”).
Order, dated Oct. 17, 2014, at 1, United States v.
Seth, No. 14-mj-608 (D.D.C. filed Oct. 17, 2014), ECF
No. 3; see also Order, dated Oct. 23, 2014
(“Preliminary Commitment Order”) at 1, United
States v. Seth, No. 14-mj-608 (D.D.C. filed Oct. 23,
2014), ECF No. 5.
The DBH
completed its assessment on October 21, 2014, and recommended
commitment pursuant to 18 U.S.C. § 4241. Preliminary
Commitment Order at 1. Two days later, on October 23, 2014,
Seth's counsel requested “an examination of
[Seth's] mental competency . . . pursuant to 18 U.S.C.
§ 4241(a), ” which motion was granted.
Id. Seth was accordingly “committed to the
custody of the Attorney General of the United States for
placement in a suitable facility for a period not to exceed
thirty days, ” id. at 2, for a determination
of whether he was “presently suffering from a mental
disease or defect rendering him mentally incompetent to the
extent that he is unable to understand the nature and
consequences of the proceedings against him, ”
id. Seth was transported to the BOP's
Metropolitan Correctional Center (“MCC”) in New
York on November 10, 2014, for this examination. See
Compl. ¶ 34; Status Report, dated Nov. 14, 2014, at 1,
United States v. Seth, No. 14-mj-608 (D.D.C. filed
Nov. 15, 2014), ECF No. 10. On December 22, 2014, BOP
psychologist Dr. Samantha DiMisa issued her report,
concluding that Seth “lacked the competency to
understand the nature and consequences of the proceedings
against him and to assist properly in his defense.”
R&R at 3.
On
March 25, 2015, the parties to the criminal case appeared
before a Magistrate Judge for Seth's first competency
hearing. Order, dated Mar. 27, 2015, at 1, United States
v. Seth, No. 14-mj-608 (D.D.C. filed Mar. 27, 2015), ECF
No. 17. At this hearing, the Magistrate Judge found,
“by a preponderance of the evidence, ” that Seth
was “presently suffering from a mental disease or
defect rendering him mentally incompetent in that he is
presently unable to understand the nature and consequences of
the proceedings against him and is unable to assist properly
in his defense.” Id. The Magistrate Judge
accordingly ordered that Seth be “committed to the
custody of the Attorney General, ” pursuant to 18
U.S.C. § 4241(d)(1), “for placement in a suitable
facility” for “in-patient evaluation by a
certified psychiatrist or psychologist for a reasonable
period of time, not to exceed four months, ” to
“determine whether there is a substantial probability
that in the foreseeable future he will attain the capacity to
permit the proceedings to go forward.” Id.
Seth
was transferred to FMC Butner, in North Carolina, on April
27, 2015, for his in-patient evaluation. R&R at 4. At a
status conference on June 10, 2015, FMC Butner psychologist
Dr. Kristina Lloyd informed the Court of her finding that
Seth was not yet competent to stand trial. Id. The
Magistrate Judge thus “ordered [Seth] to remain at FMC
Butner for additional psychiatric evaluation and, if
possible, competency restoration.” Id. On July
21, 2015, “Dr. Lloyd informed the Court that it was
quite likely that [Seth] would be restored to competency,
” id. (internal quotation marks omitted), a
conclusion that she reaffirmed one month later in a
“psychological evaluation report, ” in which she
also concluded that Seth was “ready to be returned to
court for resolution of his legal situation, ”
id. Seth's counsel was
“[d]issatisfied” with this conclusion and
requested that Seth be transported “to the Correctional
Treatment Facility of the D.C. Jail (‘CTF') so that
his competency could be evaluated by an expert retained by
[Seth].” Id. Seth's expert, Dr. Robert
Denney, subsequently “evaluated [Seth] and concluded
that he is not competent to stand trial.” Id.
at 5.
The
parties then requested a competency hearing “to
determine whether [Seth] has been restored to competency
pursuant to 18 U.S.C. § 4241(e), ” id.,
and the matter was referred to a Magistrate Judge for that
hearing. Id. The hearing, originally scheduled for
January 2016, took place over two days on May 16 and 17,
2016. After the hearing, the Magistrate Judge concurred with
defense counsel's position, concluding, in a written
Report and Recommendation issued on December 1, 2016, that
Seth “lacks the capacity to understand, think through,
and answer even the most basic questions about the legal
process and the case against him.” Id. at 37.
Moreover, “due to the lack of treatment for his mental
impairment and the ineffectiveness of the efforts to restore
him to competency to date, ” the Magistrate Judge
concluded that Seth “is incapable of being restored to
competency for the foreseeable future.” Id. at
40.
This
Court adopted the Magistrate Judge's Report and
Recommendation on December 22, 2016, and remanded Seth to the
custody of the Attorney General of the United States,
pursuant to 18 U.S.C. § 4246, “for purposes of
psychiatric and/or psychological examination to determine and
certify pursuant to 18 U.S.C. §§ 4246 and
4248” whether Seth “is presently suffering from a
mental disease or defect as a result of which his release
would create a substantial risk of bodily injury to another
person or serious damage to property of another and that
suitable arrangements for State custody and care of the
person are not available” or whether Seth “is a
sexually dangerous person.” Order, dated Dec. 22, 2016
(“D.D.C. Commitment Order”) at 1-2, United
States v. Seth, No. 14-mj-608 (D.D.C. filed Dec. 22,
2016), ECF No. 77. Seth was accordingly transferred back to
FMC Butner for that evaluation, and he remains at Butner
today. Compl. ¶¶ 40-41.
D.
Proceedings in the Eastern District of North
Carolina
Seth
underwent, and continues to undergo, further treatment at FMC
Butner. On April 11, 2017, over a year before Seth's
complaint was filed, Butner psychologist Dr. Lloyd concluded
that Seth was “suffering from a mental disease or
defect as the result of which his release to the community
would create a substantial risk for bodily injury to another
person or serious damage to the property of another.”
Joint Status Report, dated May 24, 2017 (“Jt. Status
Report”) at 2, United States v. Seth, No.
14-mj-608 (D.D.C. filed May 24, 2017), ECF No. 85.
Consequently, three days later, the Complex Warden at FMC
Butner executed a “certificate of dangerousness,
” pursuant to 18 U.S.C. § 4246, stating that the
“FMC-Butner forensic staff believe that [Seth] is
currently suffering from a mental disease or defect as a
result of which his release would create a substantial risk
of bodily injury to another person or serious damage to the
property of another. In addition, suitable arrangements for
State custody are not available.” Certificate of Mental
Disease or Defect and Dangerousness
(“Certificate”) at 1, United States v.
Seth, No. 17-hc-2090 (E.D. N.C. filed Apr. 28, 2017),
ECF No. 1-1. That certificate was sent to this Court on April
24, 2017, and was filed with the District Court for the
Eastern District of North Carolina on April 28, 2017. Jt.
Status Report at 2.
Seth's
competency hearing in the Eastern District of North Carolina
was scheduled for May 24, 2018. Before that scheduled date,
Seth filed the instant complaint, on May 1, 2018. One week
later, on May 7, 2018, in an apparent effort to delay the
North Carolina competency proceedings, Seth requested that
the federal court in North Carolina “stay all further
proceedings” there pending the outcome of the instant
litigation in the District of Columbia. Mot. Stay Proceedings
at 1, United States v. Seth, No. 17-hc-2090 (E.D.
N.C. filed May 7, 2018), ECF No. 25. That court denied this
request, finding “no overlap between the issue to be
adjudicated [in the North Carolina case] and the issue to be
litigated in the District of Columbia lawsuit.” Order,
dated May 17, 2018, at 3, United States v. Seth, No.
17-hc-2090 (E.D. N.C. filed May 17, 2018), ECF No. 30.
Accordingly,
on May 24, 2018, a competency hearing was held in the Eastern
District of North Carolina. The next day, that Court entered
an order finding, “by clear and convincing evidence,
” that Seth was “presently suffering from a
mental disease or defect as a result of which his release
would create a substantial risk of bodily injury to another
person or serious damage to the property of another.”
E.D. N.C. Commitment Order at 1. The Court also found that
“state placement is not available” in the
District of Columbia. Competency Hr'g Tr. (dated May 24,
2018) at 46:19, United States v. Seth, No.
17-hc-2090 (E.D. N.C. filed June 7, 2018), ECF No. 34. Seth
was thus ordered “committed to the custody and care of
the Attorney General pursuant to 18 U.S.C. § 4246,
” E.D. N.C. Commitment Order at 1, in which status he
remains today.
E.
Attempts to Place Seth in a Community-Based Program in the
District of Columbia
While
Seth's federal competency and civil commitment
proceedings were ongoing, his counsel continually attempted
to have him placed in various community-based programs within
the District of Columbia. On February 13, 2015, before the
first competency hearing in this Court, Seth's attorneys
“applied to DDS for support and services because
incarceration is an inappropriate and harmful placement for
[Seth].” Compl. ¶ 42. Soon thereafter,
then-Director of DDS Laura Nuss allegedly “acknowledged
[Seth's] eligibility for services and the agency's
duty to provide them to him through the civil commitment
process.” Id. On March 12, 2015, Nuss
“confirmed that a favorable eligibility determination
was forthcoming and that DDS would proceed with civil
commitment.” Id. ¶ 43. She encouraged
Seth and his attorneys to work with DDS, the Developmental
Disabilities Administration (“DDA”), and the
Rehabilitation Services Administration (“RSA”)
“to develop a person-centered approach to supporting
[Seth] in the context of the court proceedings and the formal
commitment process.” Id. The next day, on
March 13, 2015, DDS General Counsel Mark Back
“acknowledged that DDS planned to move for civil
commitment of [Seth] in order to remove him from federal
prison, writing in an email, ‘we will need to work
together to get a suitable Jackson finding in order
to move forward with commitment in the Habilitation
Court.'” Id. ¶ 44.[5]
On
March 18, 2015, DDS “formally determined that [Seth]
was eligible for its services based on his intellectual
disability, and documented its decision in a letter dated
March 20, 2015.” Id. ¶ 45. One month
later, on April 17, 2015, DDS Program Manager Musu Fofana
acknowledged that Seth “is an individual with
intellectual disability who is eligible to receive DDS
services, ” that Seth “was determined to be
incompetent to stand trial for the above-mentioned crimes,
” and that “once DDS has a Jackson
finding from the federal court, DDS/DDA will work with
[Seth's] attorneys and the federal authorities in filing
for civil commitment in the Mental Health and Habilitation
Branch of the D.C. Superior Court's Family
Division.” Id. ¶ 46 (internal quotation
marks, alteration, and emphasis omitted). One week later, two
DDS case managers met with Seth at the CTF “to work on
the person-centered plan that is part of DDS's process of
developing an Individual Support Plan
(‘ISP').” Id. ¶
47.[6]
Seth
was transferred to FMC Butner on or around April 27, 2015,
for his in-patient evaluation. On July 13, 2015, former DDS
Director Nuss and other DDS staff met to discuss Seth's
case. Id. ¶ 48. Soon thereafter, on August 6,
2015, DDS informed Seth's attorneys that “DDS had
identified a service provider, Benchmark Human Services
(‘Benchmark'), to serve [Seth] and that DDS would
be conducting a formal assessment to determine the parameters
of a plan” for him. Id. ¶ 49. One week
later, on August 12, 2015, “DDS Deputy Director [Holly]
Morrison emailed Benchmark's President for Residential
Services and asked him to arrange an assessment of
[Seth].” Id. ¶ 50. Subsequently,
“from August 2015 through early 2017, DDS worked on
developing a plan ...