United States District Court, W.D. Virginia, Roanoke Division
MICHAEL F. URBANSKI CHIEF UNITED STATES DISTRICT JUDGE
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.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. 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.
suffers from mental illnesses, including Borderline
Personality Disorder. A psychiatrist testified about that
disorder in 2013 during one of Plaintiff s criminal
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.
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
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.
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."
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
they overlap one another and overlap defendants, the court
separates the issues presented in the amended complaint into
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.
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.
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
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.
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.
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.
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. One example of Plaintiffs often
repeated threat is tearing open a surgical scar and pulling
out his intestines. 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.
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. 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.
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.
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. 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.
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. Staff first forcibly injected Haldol into
Plaintiff on April 7, 2016. Staff next forcibly medicated him
on April 14, 2016. 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.
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.
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] ...