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Seth v. District of Columbia

United States District Court, District of Columbia

May 8, 2019

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

          MEMORANDUM OPINION

          BERYL A. HOWELL Chief Judge

         The plaintiff, Markelle Seth, seeks to alter or amend the portion of this Court's judgment entered on September 28, 2018, see Seth v. District of Columbia, No. 18-cv-1034 (BAH), 2018 WL 4682023 (D.D.C. Sept. 28, 2018) (“2018 Decision”), that dismissed with prejudice his complaint seeking to require the defendants, the 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, ECF No. 1, 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. As support for reconsideration, Seth asserts that dismissal of his Complaint with prejudice was “clear error, ” Pl.'s Mot. to Alter or Amend Judgment & Mot. for Leave to File Am. Compl. (“Pl.'s Mot.”) at 2, ECF No. 29, particularly since he now “possesses additional facts that further support his claims and that specifically address this Court's concerns” with his original complaint, id. He therefore seeks leave to file an Amended Complaint, a copy of which is attached to his motion. See Pl.'s Mot., Attachment 1, Proposed Am. Compl. (“Proposed Am. Compl.”), ECF No. 29-1. For the reasons explained below, Seth's Motion to Alter or Amend the Judgment is denied, and his Motion for Leave to File an Amended Complaint is therefore denied as moot.

         I. BACKGROUND

         The 2018 Decision laid out this matter's statutory framework and procedural history in some detail, see 2018 Decision at *1-8, and thus only the essentials are recounted here.

         A. Competency Proceedings in the District of Columbia and the Eastern District of North Carolina

         Seth, a “resident of the District of Columbia with an intellectual disability, ” id. at *3, was arrested on October 16, 2014 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), ” id. at *4 (quoting Compl. ¶ 32). 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. Over the next several years, the parties followed the three-stage statutory process that the Insanity Defense Reform Act of 1984 (“IDRA”), Pub. L. No. 98-473, 98 Stat. 2057, establishes to determine whether an individual “is a long-term incompetent and sufficiently dangerous to require indefinite institutionalization.” United States v. Weissberger, 951 F.2d 392, 395-96 (D.C. Cir. 1991) (citing 18 U.S.C. § 4241(d)); see also 2018 Decision at *2-3 (describing this statutory framework).

         Since December 22, 2016, following this Court's adoption, “without objection” from either Seth or the government, of a Magistrate Judge's Report and Recommendation that Seth “is incapable of being restored to competency in the foreseeable future, ” Seth has been in the custody of the Attorney General at FMC Butner, in North Carolina. See 2018 Decision at *5 (quoting Order (Dec. 22, 2016) at 1-2, United States v. Seth, No. 14-mj-608 (D.D.C. Dec. 22, 2016), ECF No. 77). On April 11, 2017, FMC Butner psychologist Dr. Kristina 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.” Id. (internal quotation marks and citation omitted). Three days later, the Complex Warden at FMC Butner executed a “certificate of dangerousness” pursuant to 18 U.S.C. § 4246, citing Dr. Lloyd's conclusions, and stating that “suitable arrangements for State custody are not available.” Id. (internal quotation marks and citation omitted). This certificate was filed, on April 28, 2017, in the District Court for the Eastern District of North Carolina, the district where FMC Butner is located. Id.

         On May 24, 2018, a competency hearing was held in the Eastern District of North Carolina, after which the 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, ” id. at *6 (quoting E.D. N.C. Commitment Order (“E.D. N.C. Commitment Order”) at 1, United States v. Seth, No. 17-hc-2090 (E.D. N.C. May 25, 2018), ECF No. 32), and that state placement was not available in the District of Columbia, id. (internal quotation marks and citation omitted). Seth was therefore committed to the custody and care of the Attorney General, pursuant to 18 U.S.C. § 4246. Id. (internal quotation marks and citation omitted).

         Although Seth is committed to the custody of the Attorney General, the IDRA provides that a person “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). The Attorney General “shall make all reasonable efforts to cause such a State to assume responsibility, ” id., and must hospitalize the person for treatment in a suitable facility until the State assumes responsibility or the person may be released without creating a substantial risk of bodily injury to another person or serious damage to property of another, whichever occurs first. Id. § 4246(d)(1)-(2). 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).

         “[A]t any time during [the] person's commitment, ” his 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 the facility, so long as no motion is filed within 180 days of a court determination that the person should continue to be committed.” Id. § 4247(h). For the period of almost one year since Seth has been committed at FMC Butner, no such motion has been filed.

         B. Efforts for Seth's Placement in D.C. Community-Based Program

         While Seth's federal competency and civil commitment proceedings were ongoing, his counsel made efforts to have him placed in a community-based program within the District of Columbia. 2018 Decision at *6-7. Beginning in March 2015, DDS and its then-Director Laura Nuss indicated that Seth was eligible for DDS services and DDS made plans to move for civil commitment of Seth. See Id. at *6.

         Prior to Seth's competency hearing in this Court in May 2016, id. at *5, defendant Reese replaced Nuss as the Director of DDS, and requested that a new risk assessment of Seth be prepared, id. at *7. DDS's expert, Dr. Matthew Mason, subsequently found, on February 24, 2017, that Seth could be safely supported in a highly structured, closely supervised community-based program, id., which conclusion was endorsed, on June 18, 2017, by Dr. Stephen Hart, an expert retained by Seth, id. Between these two reports, however, FMC Butner's expert Dr. Lloyd concluded that Seth's release to the community would create a substantial risk for bodily injury to another person or serious damage to the property of another, prompting the Complex Warden of FMC Butner to file a certificate of dangerousness, resulting in a judicial order finding, by clear and convincing evidence, that Seth's release would create a substantial risk of bodily injury to another person or serious damage to the property of another. Id. Since that judicial order, which relies in part on a finding that suitable state arrangements are not available, DDS has not attempted to take responsibility for Seth's care. This local agency inaction has led to this lawsuit.

         C. Procedural History

         Seth filed his original civil complaint in this action on May 1, 2018, after the Complex Warden of FMC Butner issued a certificate of dangerousness but before the Eastern District of North Carolina held a competency hearing. The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) on June 14, 2018, see Defs.' Mot. to Dismiss, ECF No. 19, which motion was fully briefed as of July 26, 2018. Seth did not move for leave to amend ...


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