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Farabee v. Gardella

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

January 12, 2018

DR. ROBERT GARDELLA, et al, Defendants.


          Hon. Michael F. Urbanski Chief United States District Judge.

         Brian Farabee, a Virginia inmate proceeding pro se, filed a verified amended complaint pursuant to 42 U.S.C. §§ 1983 and 12101, et seq. Plaintiff names three defendants: Dr. Robert Gardella, a staff psychiatrist at Western State Hospital; Dr. Christy McFarland, a staff psychologist at Western State Hospital; and Daniel Herr, a Deputy Assistant Commissioner of Behavioral Health Services for the Virginia Department of Behavioral Health and Development Services ("Department of Behavioral Health"). Defendants filed a motion for summary judgment, and Plaintiff responded, making this matter ripe for disposition.[1] After reviewing the record, the court grants Defendants' motion for summary judgment as to the federal claims and '"', ' declines to exercise supplemental jurisdiction as to any state law claim.



         The Circuit Court of the City of Williamsburg ("Circuit Court") adjudged Plaintiff Not Guilty by Reason of Insanity ("NGRI") in 1999, and Plaintiff was civilly committed to the care of the Department of Behavioral Health. As a result of a subsequent criminal conviction, Plaintiff was housed with the Virginia Department of Corrections ("VDOC") for several years. In the summer of 2012, the VDOC released Plaintiff back into the custody of the Department of Behavioral Health for continued commitment.

         This lawsuit concerns the conditions of confinement Plaintiff experienced while civilly committed at Western State Hospital between September 10 and October 13, 2015.[2] Plaintiff asserts that Herr retaliated against him by transferring him from Central State Hospital to Western State Hospital where he was assigned to a more restrictive area called Ward 2-Elm. Plaintiff concludes that Herr, Dr. Gardella, and Dr. McFarland should be liable for the restrictive conditions he experienced in Ward 2-Elm. Plaintiff seeks injunctive relief to compel Herr to transfer him to Eastern State Hospital where he can be closer to family. Plaintiff also seeks damages.


         Dr. Gardella and Dr. McFarland were assigned to Plaintiffs treatment team before he arrived at Western State Hospital. Dr. Gardella would be Plaintiffs physician and could prescribe medications and write orders for restraint, and Dr. McFarland would be his psychologist but did not have that authority.

         On September 6, 2016, Dr. Gardella and Dr. McFarland received notice of Plaintiff s impending transfer and the most recent NGRI annual report filed with the Circuit Court. The report extensively reported Plaintiffs behaviors, including being aggressive, disrupting his and others' treatment sessions, refusing treatment, destroying state property, and smearing feces on walls. The report also noted that, ten days before being sent to Western State Hospital, Plaintiff had been on "a modified 1:1 status for monitoring of and possible prevention of self harm .... [and] violence observation status due to his aggressive behavior."

         The report informed Dr. Gardella and Dr. McFarland of Plaintiff s extensive history of threatening and harming himself and others.

[Farabee] has a history of self-inserting foreign objects into his rectum and urethra. Jail records indicate he had bronchitis, GERD, and a past positive PPD. He has also required various medical procedures for his self-injurious behaviors including surgery, suturing, endoscopy, and urologic procedures due to inserting foreign objects into his urethra. While at Marion Correctional Treatment Center he ingested a plastic spoon and required surgery to have it removed and had a subsequent colostomy. Prior to this transfer to CSH, he was assigned to the medical unit of the Powhatan Correction Center (however, he was housed in the more secure Mental Health Unit). He had a colostomy when he arrived at CSH - it was eventually reversed on 4/8/2013. He had a ventral hernia repair (due to his previous abdominal surgery) on 10/7/2013. Due to a fight.. ., he had a fracture of his right ring finger for which he had surgery on 4/14/2014. He was poorly compliant with post-op physical therapy. Also he has some other injuries on his left thumb due to physical aggression.
He has had numerous selfharm attempts various times throughout his hospitalizations as well as at DOC. The reason for his colostomy is that he had reportedly swallowed a spoon which became impacted and eventually he had to have surgery and subsequent colostomy due to this swallowing of the spoon.
He had numerous diagnoses in the past including Dysthymic Disorder, Borderline Personality Disorder, Psychotic Disorder, Not Otherwise Specified, Bipolar Disorder, Schizophrenia and Major Depressive Disorder, Psychotic Features, Schizoaffective Disorder, Attention Deficit/ Hyperactivity Disorder, Conduct Disorder, Antisocial Personality Disorder, Not Otherwise Specified with Borderline antisocial Narcissistic Impulsive and Paranoid Traits, also Schizotypal Personality Disorder, Adjustment disorder, Delusional Disorder, Impulse Control Disorder and various other substance abuse disorders. In 1994 he was diagnosed by the ILPPP with Sexual Sadism.
His behavioral symptoms included urinating in inappropriate places, smearing and eating feces, digging at his scabs, cutting, biting and burning himself, inserting items into rectum, drank bleach and swallowing non-food items. He also is reported throwing urine and feces at others as well as hit, kick, scratch, spit and sexually assaulted others at various times through his hospitalizations.
Reportedly he continued these behaviors stated above at the DOC in order to be transferred to [Marion Correctional Treatment Center].
Numerous [criminal] offenses noted[, ] including burning or destroying a dwelling. He was-found NGRI in 1999. He had malicious wounding charges in 2000 and found guilty and sentenced to 20 years with 16 years at Piedmont suspended. He also had assault and malicious wounding charges in 2000 as well. Most of these were nolle prossed. He had felonious assault [in] 2002 and he was found guilty and was sent to Correctional in 2004. There is reported numerous correctional infractions when he was in Red Onion Prison as well as Waller [sic] State Prison. He had numerous disciplinary infractions including self-injury, damaging property, smearing and throwing feces, spitting and throwing, threatening bodily harm, use of vulgar instant language and covering his windows with paper, and assault against staff and other inmates.

         The report also specifically noted Plaintiffs propensity to be violent, use weapons, and hide contraband.

Mr. Farabee hit a staff member while an adolescent at CCCA' with a flashlight. He has fashioned everyday objects into weapons to hurt himself including light bulbs, wall clocks, tin cans, staples, and paper clips. Previous reports indicate that he has reported a desire to obtain a firearm and engage in a mass shooting. While in the DOC he reportedly incurred criminal charges after he assaulted a peer with a lock in a sock. He also learned how to hide weapons on his person including his cheek tissues. While at Powhatan Correctional Center he was not allowed access to a standard writing utensil and was only allowed to use a "safety pen" under supervision, for fear he would have used it to harm himself or another person. Currently, his access to various items is restricted due to fears he would use them as weapons against others or against himself. While at CSH he has been found with contraband, e.g. pens, bottles, books, batteries, and other items which he should not have with him. He continues to attempt to get access to contraband items. He has not been seen or voiced thoughts of making items into weapons.

         The report further described how Plaintiff refused to engage in meaningful discussions about his behavior or progress through the rehabilitative program called the "NGRI Graduated Release Process."

[T]he Treatment Team .. . had attempted to meet with Mr. Farabee on a regular basis, but he continues to refuse to engage in treatment. He had refused to comply with ward rules on each ward he had been on and consistently files complaints if his needs are not met immediately. Mr. Farabee has not been able to maintain an aggression-free period for any significant length of time. Once he shows improved behavior, i.e. no aggression towards others, the Treatment Team would like to put a packet in for civil transfer to Eastern State Hospital.


         Plaintiff arrived at Western State Hospital on September 10, 2015, and was assigned to Ward 2-Elm. Ward 2-Elm is an all-male admission unit at Western State Hospital, and it is considered a more restrictive ward with higher-risk patients found NGRI.[3] Ward 2-Elm rules require that a patient attend treatment group meetings in order to access the open-air fenced porch connected to the ward because access to the porch is integrated into the treatment program as a privilege.[4] Thus, the porch is cleared and locked during the meetings to encourage patients' attendance.

         Western State Hospital's Hospital "Emergency Seclusion and Restraint Policy" authorized "physical restraints, " "seclusion, " and "pharmacological restraints" on patients. "Pharmacological restraint" meant the "[u]se of a medication that is administered involuntarily for the control of an individual's behavior when that individual's behavior places him or others at imminent risk and the administered medication is not a standard treatme[n]t for the individual's medical or psychiatric condition." Seclusion meant "[t]he involuntary placement of an individual alone in an area secured by a door that is locked or held shut by a staff person, by physically blocking the door, or by any other physical or verbal means so the individual cannot leave it." Physical restraints, including "manual holds" and "mechanical restraints, " prevent "a patient from freely moving his/her limbs or body to engage in a behavior that places him or others at risk of physical harm until such time as he/she is either calm [or] secluded ...." "Physical restraints" can range from manually holding a patient to strapping a patient into an Emergency Restraint Chair.

         A doctor at Western State Hospital had approved an "Emergency Restraint Step Down Plan" to manage Plaintiffs non-redirectable, disruptive, and aggressive behaviors. This plan reads:

In the event that Mr. Farabee will not follow staff direction or is engaging in verbal threats or disruptive behavior (including not following ward rules) but he is not physically aggressive, a Physician's order for manual restraint will be obtained to physically move him.
If he continues to engage in verbal threats despite redirection but does not become physically aggressive, the next step will be use of the ERC. When he is calm, and meets standard hospital release criteria, he will be released from the ERC (no step down).
If Mr. Farabee engages in Physical aggression towards others or himself that results in application of ERC; this plan for step wise reduction of physical restraint will be followed for safety of all:
From Emergency Restraint Chair (ERC) you may progress out of physical restraint as follows:
• From ERC reduce to 4pt ambulatory, then 2pt ambulatory (wrist), then lpt ambulatory (not dominant hand out of restraint), then release from all physical restraint based on individualized criteria (next bullet).
• [E]ach step of above reduction based on 4 hrs of consistent andconsecutive (4 hrs in a row ...

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