Opinion
Case No. 99-4162-RDR
May 23, 2002
MEMORANDUM AND ORDER
The plaintiffs in this case are: Luz Unzueta as Special Administrator of the Estate of Alan Unzueta; Felicitas Unzueta, the mother of Alan Unzueta, individually; James S. Phillips, Jr., as Limited Conservator of Alan Unzueta's surviving minor child, Alan Martinez (formerly Alan Jelinek); and Kansas Advocacy Protective Services, Inc. ("KAPS").
The following defendants are sued by KAPS in their official capacity for injunctive relief: Janet Schalansky as Secretary of the Kansas Department of Social and Rehabilitation Services ("SRS"); Laura Howard, as Assistant Secretary of SRS; and Dr. Mark Schutter as current Superintendent of the Larned State Hospital. The defendants sued as individuals for damages are: Dennis Steele; Michael H. Tudor; Philip A. Schreiber; Robert L. Janousek; Bethany Smith and Vanessa Paige. Connie Hubbell, former Assistant Secretary of SRS, and Mani Lee, former Superintendent of Larned State Hospital, are also sued as individuals for damages.
According to the final pretrial order (Doc. No. 447), the injunctive relief claims brought by KAPS on behalf of mentally ill persons at Larned State Hospital allege a violation of: due process rights under the Fifth and Fourteenth Amendments; 42 U.S.C. § 1983; and Section 1 of the Bill of Rights of the Kansas State Constitution. The damages claims brought by the other plaintiffs allege: a violation of due process rights under the Fifth and Fourteenth Amendments; a violation of 42 U.S.C. § 1983; a violation of Section 1 of the Bill of Rights of the Kansas State Constitution; negligence; battery; "lack of training;" and "lack of supervision" as allegedly manifested in the application of unlawful restraint and inadequate medical care leading to Alan Unzueta's alleged wrongful death.
This order is directed toward those motions relating to KAPS' claims for injunctive relief.
MOTION TO ALTER OR AMEND (Doc. No. 190)
The motion to alter or amend asks the court to alter rulings made when the court denied a motion to dismiss the amended complaint in this case. The amended complaint asserted state and federal damages claims on behalf of the Unzueta plaintiffs and claims for injunctive and declaratory relief on behalf of KAPS. Counts VI, VII and VIII contained the allegations relevant to KAPS' claims for injunctive relief. Count VI asserted that defendants failed: "to develop and implement policies and procedures to increase the use of de-escalation techniques on the adolescent unit at Larned State Hospital; to prohibit the use of excessive and unnecessary physical or chemical restraints on the adolescent unit; and to require periodic training of staff members on the adolescent unit on appropriate de-escalation techniques and seclusion and restraint procedures." The amended complaint further alleged that these failures constituted a violation of the patients' constitutional rights under the Fifth and Fourteenth Amendments. In addition, Count VI alleged a failure to maintain adequate staffing levels to provide appropriate care and treatment. Count VII recounted the same or similar allegations asserting a failure to implement policies, monitor actions, and train personnel in the area of physical and chemical restraints. Finally, Count VII alleged that defendants were violating the patients' rights by failing to implement policies and training to ensure the availability of appropriate emergency medical care at Larned State Hospital.
After the motions considered in this order were filed, a final pretrial conference was conducted. As set forth in the final pretrial order, KAPS limited the "specific injunctive relief" it is seeking to an order directing defendants to "enforce the policies referred to" in seven enumerated paragraphs in a section of the pretrial order. Doc. No. 447 at p. 24. These policies are found in federal and state regulations regarding the use of seclusion and restraint procedures against patients; physician review of seclusion or restraint within one hour of initiation; the use of verbal orders for the administration of medication in an emergency; requiring notification and participation of authorized family members in treatment decisions; and the presence of adequate staff to conduct individualized treatment plans and provide adequate nursing care.
The motion to dismiss that defendants filed in the early stages of this litigation alleged that this case should be dismissed against those defendants sued in their official capacity on the basis of Eleventh Amendment immunity. The court rejected this argument on the grounds that the injunctive relief requested by plaintiffs fit within the Ex Parte Young exception to the immunity doctrine. The motion to dismiss also asserted that KAPS did not have standing to proceed with its claims. The court stated, after comparing this case to Doe v. Stincer, 175 F.3d 879 (11th Cir. 1999), that the allegations in the complaint were sufficient to allow the case to proceed, but that the court was willing to look at the matter again upon a motion for summary judgment.
Defendants then filed a motion to alter or amend and to make additional findings. This motion asserts that the Eleventh Amendment defense must bar any state law claims made against state officers in their official capacity. This is correct and to the extent plaintiff is alleging a claim for injunctive relief under the State Constitution (see Final Pretrial Order, Doc. No. 447, p. 23), those claims shall be considered barred. See ANR Pipeline v. LaFaver, 150 F.3d 1178, 1188 (10th Cir. 1998).
Defendants' motion to alter or amend further argues that the court only listed § 1983 and other provisions as the source of substantive federal rights even though § 1983 does not confer specific substantive rights. Instead, defendants explain, § 1983 imposes liability against persons who, under color of state law, deprive other persons of rights secured by the Constitution and federal law. Plaintiff's amended complaint (as quoted in the court's order) and the final pretrial order list sources of substantive federal rights, e.g., the Fifth and Fourteenth Amendments, in addition to § 1983. Therefore, the court shall reject this argument to modify or alter the court's order.
Next, the motion asserts that the court's analysis of standing ignored the third prong of the Hunt test for associational standing and that this is contrary to Tenth Circuit precedent, namely American Forest Paper Assn v. U.S. Environmental Protection Agency, 154 F.3d 1155 (10th Cir. 1998) and Kansas Health Care v. Kansas Department of Social and Rehabilitation Services, 958 F.2d 1018 (10th Cir. 1992). The third prong of the Hunt test is whether the claim asserted or the relief requested requires the participation of individual members of the organization or association in the lawsuit. Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977). If it does, then the court should consider it a factor unfavorable to associational standing.
We reject this argument. The third prong of the Hunt test is considered a prudential limitation as opposed to a constitutional requirement. United Food and Commercial Workers Union v. Brown Group, Inc., 517 U.S. 544, 554-555 (1996). Congress may grant an organization standing to sue if the first two prongs of the test are satisfied. In this case, KAPS is acting under the auspices of the Protection and Advocacy for Mentally Ill Individuals Act (PAMII), 42 U.S.C. § 10805. The cases considering standing challenges in the context of protection and advocacy organizations have not considered the third prong as critical to standing. See, e.g., Doe v. Stincer, 175 F.3d at 883; Pennsylvania Protection and Advocacy, Inc. v. Houston, 136 F. Supp.2d 353, 364 (E.D.Pa. 2001) (considering the claim of a protection and advocacy organization established under similar legislation to protect persons with developmental disabilities); Risinger v. Concannon, 117 F. Supp.2d 61, 68-69 (D.Maine 2000).
The Tenth Circuit cases cited by defendants are not controlling. American Forest Paper only sets forth the three prongs of the Hunt test; the third prong is neither discussed nor applied. In Kansas Health Care, the Tenth Circuit does reject standing on the basis of the third prong. However, this case was decided before the Supreme Court explained in United Food Workers that the third prong was not constitutionally essential.
Finally, defendants contend that this court erred by stating that in evaluating whether a basis for standing had been properly pleaded, we would presume "that general allegations embrace those specific facts that are necessary to support them." Quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990). This is the approach recognized by the Supreme Court for evaluating standing upon a motion to dismiss. See Bennett v. Spear, 520 U.S. 154, 168 (1997) ("each element of Article III standing must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.") (interior quotation omitted). But, defendants claim it was employed improperly where defendants are asserting Eleventh Amendment immunity and plaintiff KAPS is making a vague claim for injunctive relief. This argument is something of an amalgamation of many of the arguments presented in the motion to dismiss and motion to alter or amend. To the extent the argument advocates a heightened pleading standard and makes an analogy to qualified immunity defenses, the court must point out that the Tenth Circuit has rejected heightened pleading requirements in cases where qualified immunity is alleged in light of the Supreme Court's holding in Crawford-El v. Britton, 523 U.S. 574 (1998). Currier v. Doran, 242 F.3d 905, 916 (10th Cir. 2001). The court agrees with defendants that plaintiffs' claim for injunctive relief was vaguely stated in the original and amended complaints. But, the court found that dismissal was not merited under the standards for judging a complaint at that stage of the case. The court still believes that ruling was appropriate, although a motion for a more definite statement might well have been justified.
Defendants also criticize the court for recounting allegations pertinent to the Unzueta damages claims. However, the court did not rely primarily upon those allegations to rule on the standing issue, and we indicated that other allegations were "perhaps more pertinent" to the standing question. The allegations relating to the Unzueta damages claims also were relevant to a motion to sever which was decided in the same order.
Therefore, the motion to alter and amend shall be granted in part and denied in part. Any state law claim brought against defendants in their official capacities shall be dismissed. Otherwise, the motion is denied, although the court shall revisit the issues raised in the motion to alter and amend in connection with defendants' motion for summary judgment.
MOTION FOR SUMMARY JUDGMENT (Doc. No. 264)
Defendants' motion for summary judgment contends that any claim for injunctive relief should be dismissed because KAPS cannot specifically describe the injunctive order it seeks. Defendants cite FED.R.CIV.P. 65(d) which provides that "Every order granting an injunction . . . shall be specific in terms; [and] shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained." However, since the motion for summary judgment was filed, KAPS has identified more specifically in the final pretrial order the elements of the injunctive relief it is seeking. The pretrial order states that: "the specific injunctive relief that plaintiff KAPS seeks is limited to having the Court order . . . defendants to enforce the policies referred to" in seven subparagraphs of the pretrial order. These are enumerated policies of Larned State Hospital as well as regulations contained in 42 C.F.R. Part 482 — specifically: Larned State Hospital policies P10-02, regarding seclusion and restraint, and P6-26, regarding verbal orders for medications; 42 C.F.R. § 482.13(f)(3)(ii)(C) regarding physician approval of restraint or seclusion; 42 C.F.R. § 482.13(f)(2) 482.13(f)(3)(i) restricting the use of seclusion and restraint for behavior management; and 42 C.F.R. § 482.13(b)(2) regarding the involvement of patient representatives or family members in treatment decisions.
Thus, because the pretrial order controls the further progress of this case, specific limitations have been placed upon the injunctive relief plaintiff KAPS is allowed to seek. FED.R.CIV.P. 65(d) also requires specificity. Given these controlling factors, the court does not believe the case can be dismissed on the premise that any relief which might ultimately be ordered would be overly vague.
The court acknowledges defendants' claim in footnote 5 of their reply brief that "KAPS seems to view this Court's functions as some sort of adjunct JCAHO to visit some sort of sanctions on the hospital for a set of revisited inspection deficiencies." Doc. No. 338. This statement may not be far off the mark. Plaintiff KAPS appears to be asking the court to enforce policies which are already part of the regulatory fabric of Larned State Hospital. To obtain such relief, plaintiff KAPS would have to establish, inter alia, that the policies are not being implemented and enforced; that the failure to follow these policies has produced unconstitutional conditions at the current time or in the imminent future; that there is no other reasonable mechanism available to remedy the unconstitutional condition; as well as the other elements for a permanent injunction. Plaintiff KAPS may not be able to establish these elements. But, on the motion before the court, defendants argue more that plaintiff KAPS' vague request for injunctive relief violates principles of standing, the Eleventh Amendment, and FED.R.CIV.P. 65(d) than that plaintiff will be unable to establish the elements necessary to obtain injunctive relief. For the reasons previously stated in this order, the court does not believe dismissal is justified under the principles of standing, the Eleventh Amendment or Rule 65(d). The vagueness problem appears to have been cured, although perhaps at a belated date. Therefore, the motion for summary judgment shall be denied.
PLAINTIFF KAPS CROSS-MOTION FOR SUMMARY JUDGMENT (Doc. No. 319)
Plaintiff KAPS has filed a cross-motion for summary judgment. The motion asks the court to:
mandate immediate improvements at Larned State Hospital including: ensuring that policies are enforced and HCFA standards are met; that staff are provided in adequate numbers and are appropriately trained to provide active treatment to patients on an individualized basis; that the use of ambulatory restraints and structure are eliminated; that patients receive treatment instead of punishment; that patients receive appropriate exercise and outdoor activities; that a therapeutic culture exist to provide individualized treatment to patients rather than the current system of behavior control; that patients are adequately trained to avoid unnecessary bodily and chemical restraint; that patients receive sufficient treatment to acquire or maintain basic self-care skills; and that leadership be held accountable to ensure that these changes occur.
The standard for a permanent injunction is the same as the standard for a preliminary injunction with the exception that a permanent injunction must be premised on a finding of actual success on the merits, not a likelihood of success on the merits. Amoco Production Co. v. Gambell, 480 U.S. 531, 546 n. 12 (1987). Thus, to obtain a permanent injunction, plaintiff must demonstrate: 1) a violation of federal or constitutional law; 2) irreparable harm unless the injunction is issued; 3) the injury from the violation outweighs the harm that the injunction may cause the opposing party; and 4) the injunction, if issued, will not adversely affect the public interest. See Fed. Lands Legal Consortium v. United States, 195 F.3d 1190, 1194 (10th Cir. 1999).
Plaintiff KAPS' lengthy memorandum in support of the cross-motion for summary judgment does not address all of the elements necessary for the court to order a permanent injunction. Accordingly, the court shall deny the cross-motion for summary judgment.
OTHER MOTIONS
Regarding other pending motions which relate to the claims for injunctive relief, the court shall make the following rulings. The court shall grant the motion of defendants to consolidate the motion to dismiss (Doc. No. 18) with the motion for summary judgment (Doc. No. 264). Regarding defendants' motion for certification of order for interlocutory appeal (Doc. No. 192), the court acknowledges that defendants have the right to bring an interlocutory appeal of the court's ruling upon the Eleventh Amendment question. The court declines to certify any other element of our rulings as proper for interlocutory appeal. See Summit Medical Associates v. Pryor, 180 F.3d 1326, 1334 (11th Cir. 1999) (discussing cases where standing was not considered a proper issue for interlocutory appeal). Plaintiff KAPS' motion for leave to file a surreply (Doc. No. 344) is granted. Finally, defendants' motion to strike certain exhibits and testimony (Doc. No. 339) shall be denied as moot.
IT IS SO ORDERED.