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Seth v. District of Columbia

United States District Court, District of Columbia

September 28, 2018

MARKELLE SETH, Plaintiff,
v.
DISTRICT OF COLUMBIA, et al., Defendants.

          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 ...


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