United States District Court, District of Columbia
A. HOWELL Chief Judge
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.
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
Competency Proceedings in the District of Columbia and the
Eastern District of North Carolina
“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).
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.
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).
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).
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.
Efforts for Seth's Placement in D.C. Community-Based
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.
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
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 ...