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United States v. Clarke

United States District Court, W.D. Virginia, Roanoke Division

January 11, 2018

BRIAN FARABEE, Plaintiff,
v.
HAROLD CLARKE, et al., Defendants.

          MEMORANDUM OPINION

          HON. MICHAEL F. URBANSKI CHIEF UNITED STATES DISTRICT JUDGE

         Brian Farabee, a Virginia inmate proceeding pro se, commenced this civil rights action pursuant to 42 U.S.C. §§ 1983 and 12101, et seq., and 29 U.S.C. § 794. Plaintiff argues that the conditions of his confinement in several correctional facilities between March 2016 and January 2017 violated the United States Constitution, the Americans with Disabilities Act ("ADA"), and the Rehabilitation Act of 1973.[1]Plaintiff names as defendants: the Virginia Department of Corrections ("VDOC"); Harold Clarke, the Director of the VDOC; A. David Robinson, the VDOC's Chief of Corrections Operations; Dara F. Robichaux-Watson, the Warden of Marion Correctional Treatment Center ("Marion"); Dr. James A. Lee, Plaintiffs primary treating psychiatrist at Marion; Dr. Cary, the Chief Psychiatrist at Marion; and Eric Madsen, a psychologist for the VDOC. Defendants filed a motion for summary judgment, arguing, inter alia, the defense of qualified immunity. Plaintiff filed two timely responses (ECF Nos. 85, 97), making this matter ripe for disposition.[2] After reviewing the record, the court grants in part and denies in part Defendants' motion for summary judgment and directs Defendants to file another motion for summary judgment.

         I.

         A.

         Plaintiff suffers from mental illnesses, including Borderline Personality Disorder. A psychiatrist testified about that disorder in 2013 during one of Plaintiff s criminal proceedings.

         She described the disorder as:

[Characterized by impulsivity, interpreting the interactions of others as being . .. negative towards them.... [and] an inability to effectively manage distressing thoughts, feelings and situations. . . . [W]hen distressed and unable to cope with this effectively, they tend to engage in threats against self or others, self-harm or aggression towards others. Their mood also tends to be . .. ranging from periods of being calm to fits of rage and screaming and irritability. Dialectical Behavior Therapy [("DBT")] is a modality of treatment specifically developed for borderline personality disorder, and this treatment teaches individuals how to cope better with a distressing situation.... Unfortunately, people with borderline personality disorder do not have the same ... ways of coping with . . . distressful situations.... DBT ... provides some additional tools for dealing with these distressful situations so the[ir] default is not engaging in self-harm or acting out towards others.

         Plaintiff was found Not Guilty by Reason of Insanity ("NGRI") in 1999 for a fire he started inside Eastern State Hospital. A licensed clinical psychologist wrote a report after evaluating Plaintiff, noting presciently:

Mr. Farabee may well meet legal criteria for a[] [Not Guilty By Reason of Insanity] defense. Given that, please allow the following advice. To hospitalize this patient until he is deemed "stable" may well result in a life sentence to a psychiatric hospital. ... [L]ong-term placement in institutional settings virtually never prove useful for treatment of borderline personality disorder. In almost all cases, the frequency and intensity of self-destructive behavior worsens. Furthermore, emotional dependency on persons within the institution tends to lead patients to sabotage discharge efforts (despite their repeated claims of wanting discharge). I should also point out that pharmacological interventions have no proven utility for this disorder. Their benefit usually stems from sedative side effects (as a sleeping or sleepy patient is less likely to act-out)....
Clinically, Mr. Farabee requires much more intensive and sophisticated therapy for childhood abuse/neglect issues than he is currently receiving.. .. Bluntly, he is quite unlikely to find such therapy within a state hospital. This patient needs a much more aggressive and motivated plan to assist his transition back to the community. Such a plan should include community day services, daily outpatient counseling, respite services, transitional living placement and financial assistance.. .. Hospital stays, when necessary for self-mutilation, should be brief and not endure beyond one day. Furthermore, for a period of several months, he should be allowed to reenter the hospital (again for only a brief period) without the requirement of first being destructive to self or others. It is the latter contingency that often forces borderline patients to commit acts of self-mutilation that otherwise would not occur.

         Plaintiff was charged with malicious wounding while civilly committed in the custody of Virginia's Department of Behavioral Health and Developmental Services ("Department of Behavioral Health"). In 2000, the Circuit Court of Dinwiddie County convicted Plaintiff of two counts of malicious wounding and sentenced him to 20 years imprisonment within the VDOC. However, that court suspended 16 years and 8 months of the sentence with the condition Plaintiff "keep the peace and be of good behavior and violate none of the penal laws of the Commonwealth or any other jurisdiction for ... [t]wenty years."

         Fifteen years after the sentencing, however, the Circuit Court of Dinwiddie County found Plaintiff guilty of violating this condition of probation due to a conviction in 2002 for fighting an allegedly armed inmate at Sussex I State Prison. The state court sentenced Plaintiff to serve six years and eight months in the custody of the VDOC, and it re-suspended a ten year term of incarceration with the same "good behavior" condition. Plaintiff remains incarcerated within the VDOC for this most recent conviction and sentence, and it is during this term of incarceration the instant claims arise.

         B.

         Although they overlap one another and overlap defendants, the court separates the issues presented in the amended complaint into six claims.

         First, Plaintiff alleges that Defendants denied him "constitutionally adequate treatment" under the Fourteenth Amendment and "unnecessarily restrain[ed]" him. Plaintiff uses the term "restraints" to represent the isolation he experienced in segregation and being forcibly medicated.

         Second, Plaintiff alleges that, by his incarceration in the VDOC, Defendants denied him the "right to freedom of association" with "non-institutionalized persons of his choosing guaranteed by the [Fir]st Amendment." Plaintiff further alleges that this right was denied without due process guaranteed by the Fourteenth Amendment.

         Third, Plaintiff alleges that defendant Dr. Cary unlawfully seized him with unnecessary bodily restraint by authorizing a standing order to allow staff to forcibly medicate him. Plaintiff asserts that Dr. Cary's standing order: was improper for not first attempting less drastic alternatives, was contrary to Plaintiffs Authorized Representative's objection, was contrary to a different physician's recommendation made years earlier, violated Plaintiffs Advanced Medical Directive, and substantially deviated from professional norms. Thus, Plaintiff concludes that Dr. Cary's standing order violated the Fourteenth Amendment.[3]

         Fourth, Plaintiff alleges that Defendants unlawfully seized and unlawfully imprisoned him in the VDOC and in violation of a state court order committing him to the custody of the Department of Behavioral Health. Plaintiff clarifies that he seeks a writ of habeas corpus and release from the VDOC due to perceived defects in the legal process that led to his current incarceration in the VDOC.

         Fifth, Plaintiff alleges that Dr. Lee and Warden Robichaux-Watson retaliated against him with unnecessary bodily restraint. These defendants allegedly told Plaintiff how they would keep Plaintiff in segregation at Marion for commencing this lawsuit against Dr. Cary. Plaintiff explains that segregated housing at Marion means he has almost no contact with other people while confined in a cell twenty-three hours per day on weekdays and twenty-four hours per day on weekends, is exposed to lighting twenty-four hours a day, and may not access a telephone, a radio, a television, and recreation equipment. Plaintiff explains that being housed in segregation without mental health treatment exacerbates his mental illnesses and causes him to be suicidal.

         Sixth, Plaintiff alleges that Defendants discriminate and violate the ADA and Rehabilitation Act by keeping him incarcerated in the VDOC instead of being housed and treated in a civil hospital operated by the Department of Behavioral Health. Plaintiff seeks a transfer to a civil hospital.

         C.

         Plaintiffs complaints about prison life begin at Wallens Ridge State Prison ("Wallens Ridge"). Prison staff had Plaintiff confined in five-point restraints intermittently between March 22 and April 5, 2016, because of his self-harming behaviors.[4] One example of Plaintiffs often repeated threat is tearing open a surgical scar and pulling out his intestines.[5] Plaintiff refused to discuss treatment with a Qualified Mental Health Professional on April 2 and 3, claimed to have swallowed pieces of a razor, and continued his threats to self-injure.

         Staff felt they were unable to treat Plaintiff at Wallens Ridge due to his acts and threats of self-harm and refusals for treatment. Consequently, prison staff petitioned the Wise County General District Court, in accordance with Virginia Code § 53.1-40.2 and VDOC policy, to have Plaintiff committed to Marion for acute treatment to stabilize his behavior.[6] The Wise County General District Court approved the petition on April 5, 2016, for "as needed" involuntary "medical and/or mental health care" for up to 180 days.

         Plaintiff alleges that Dr. Cary threatened him at Wallens Ridge in March 2016. Dr. Cary allegedly told Plaintiff "she would have [him] forcibly drugged, although [he] informed her ... of [his] Advanced Directive and L[egally] A[uthorized] R[epresentative] legally prohibiting such." Plaintiff allegedly explained to Dr. Cary that he prefers treatment that includes access to the outdoors, release from isolation, a gym, and naturopathic remedies.[7]

         D.

         Plaintiff alleges that Dr. Cary carried out her threat to forcibly drug him after he was transferred to Marion. Plaintiff was at Marion between April 6 and June 22, 2016. Acute Care inmates, like Plaintiff, are involuntarily committed to Marion for court-ordered treatment.[8] Each inmate is assigned to a treatment team usually consisting of a psychiatrist, a psychology associate, a licensed clinical social worker, a casework counselor, a recreation therapist, and a registered nurse.

The Treatment Team is responsible for developing treatment plans, assuring implementation of treatment plan interventions, reassessing treatment plans at established intervals, and monitoring an inmate's progression. The Treatment Team will assess mental health needs and within fifteen (1.5) days will develop a Treatment Plan with each offender that will address major mental health needs. Treatment services and interventions include medication, therapeutic programs, individual counseling, educational services, wing meetings, work programs, and a therapeutic environment. Special interventions such as use of seclusion and/or restraints may be ordered by a Psychiatrist when an [inmate] needs protection from self harm and/or to prevent harm to others.

         Plaintiff asserts that Dr. Cary "specifically directed nursing at [Marion] ... to forcibly medicate him and to keep him in constant isolation in segregation." Plaintiff allegedly experienced "severe side effects .. . including but not limited to, fear, humiliation, pain, soreness, bleeding, dry mouth, dizziness, tremors, . .. inability to sit still[], blurred vision, muscle ache, drowsiness, etc." Haloperidol ("Haldol") was allegedly forcibly administered to Plaintiff four times in April 2016.[9] Staff first forcibly injected Haldol into Plaintiff on April 7, 2016. Staff next forcibly medicated him on April 14, 2016.[10] The last two times occurred on April 23, 2016, when a nurse gave him an oral dose of Haldol and staff forcibly injected Haldol and a narcotic tranquilizer.

         Dr. Cary avers that Haldol is a common, safe, and effective treatment for "agitation" resulting from Borderline Personality Disorder. Dr. Cary explains that Haldol is a "typical" or "first-generation antipsychotic" and is approved by the Federal Drug Administration for oral or intramuscular use. Plaintiff denies being agitated or disruptive before each administration of Haldol.

         In contrast, Plaintiff cites a document purportedly issued by the National Institute of Mental Health suggesting that "[o]nly a few studies show that medications are necessary or effective for people with [Borderline Personality Disorder]." The document notes that "[w]hile medications may be helpful in managing specific symptoms .... [like] ...


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