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Pelichet v. Gordon

United States District Court, E.D. Michigan, Southern Division

September 20, 2019

ROBERT GORDON, [1] in his official capacity, LISA MEDOFF, individually and in her official capacity, MARY CLAIRE SOLKY, individually and in her official capacity, LAURIE ALBERT, individually and in her official capacity, HANUMAIAH BANDLA, individually and in his official capacity, CHARLES STERN, individually, ARUNA BAVINENI, individually and in her official capacity, SHARON DODD-KIMMEY, individually and in her official capacity, CRAIG LEMMEN, individually and in his official capacity, KIMBERLY KULP-OSTERLAND, individually and in her official capacity, LISA MARQUIS, individually and in her official capacity, MARTHA SMITH, individually and in her official capacity, DAVE BARRY, individually and in his official capacity, KELLI SCHAEFER, individually and in her official capacity, JOE CORSO, individually and in his official capacity, DIANE HEISEL, individually and in her official capacity, HEGIRA PROGRAMS, INC., NEW CENTER COMMUNITY SERVICES, INC., CARELINK NETWORK, INC., BEHAVIORAL HEALTH PROFESSIONALS, INC., and MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES (MDHHS),, Defendants.

          Anthony P. Patti United States Magistrate Judge




         On September 14, 2018, the Plaintiffs filed a 76-page unpaginated First Amended Complaint ("FAC"), and attached 20 exhibits comprising an additional 240 pages. (ECF #44, PgID 872, et seq.)

         The three count FAC alleges (1) 42 U.S.C. § 1983 violations of the four individual Plaintiffs' "civil rights secured by the Fourth, Eighth and Fourteenth Amendments to the United States Constitution, (2) violations of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and (3) violations of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 et seq.” (ECF #44, PgID 875.)

         The FAC's principal claim of "unconstitutional and discriminatory policies and practices designed to segregate those with disabilities from the rest of society, " (id. at PgID 876) is based upon the fact that in 2003, Janet Olszewski, former director of the Michigan Department of Community Health, n/k/a the Michigan Department of Health and Human Services ("MDHHS"), issued Administrative Directive 10-C-1050-AD (hereinafter "Olszewski Directive") mandating "that all recommendations to the probate court for release from hospitalization ... under the legal status of 'not guilty by reason of insanity' ["NGRI"] be reviewed by the NGRI Committee prior to filing or court appearance, " and that "any delay in referring or filing necessary papers in a timely manner that would result in not receiving the order, will be considered a violation of this policy." (ECF #44, PgID 876, ¶5.)

         Plaintiffs interpret the Olszewski Directive to state that because "a civil commitment order will not be renewed if a petition is not filed to renew it, a treatment provider that determines that a person adjudged NGRI does not currently satisfy the statutory or constitutional requirements for involuntary civil commitment, would violate the Policy by declining to petition the Probate Court for an additional year of involuntary hospitalization." (Id. at ¶6.) Plaintiffs' FAC Complaint, (¶7) asserts that the Olszewski Directive "effectively ordered that all patients at Michigan's regional psychiatric hospitals and community mental health service providers to automatically file a petition in Probate Court for one year of involuntary hospitalization for every 'Not Guilty by Reason of Insanity' ('NGRI') patient, every year, regardless of whether the patient's treating physicians believed that the patient continued to satisfy statutory or constitutional requirements for involuntary civil commitment." (Id. at PgID 876-77, ¶7.) Plaintiffs' FAC ¶8 states that the Olszewski Policy is still in effect today.

         Plaintiffs Darryl Pelichet, Bonn Washington, Joshua Ragland, and Darius Bickerstaff had all been charged with assaultive criminal offenses, [2] adjudicated NGRI in Michigan state courts, and then civilly committed to the Walter P. Reuther Psychiatric Hospital ("WPRH"). They have all, at various times, been released from confinement to live in the community subject to hospital oversight as inpatients under Authorized Leave Status ("ALS") contracts, wherein they agreed to terms such as drug testing and curfews. The duration of their civil commitment had been extended one or more times pursuant to petitions to Probate Courts by MDHHS hospitals seeking continuing Hospitalization Treatment Orders ("HTOs"), which were usually granted, after hearings, at which Plaintiffs were represented by counsel. The present-day status of their specific cases otherwise differ. Pelichet, Ragland, and Washington are no longer committed within the MDHHS structure. Bickerstaff remains an NGRI inpatient, but was on ALS status as of March 20, 2019.[3]

         Plaintiffs contend that their rights were violated by Defendants' policy/practice of seeking to renew Plaintiffs' commitment as NGRI patients by filing annual petitions with state Probate Courts for continuing one-year Hospital Treatment Orders as a matter of course, which, after hearings were most times granted by those courts.

         Plaintiffs acknowledge that they were represented by court-appointed counsel at those court hearings. Further, those hearings did not always result in court orders for continuing hospitalization. Some resulted in a verdict denying continuing hospitalization and therefore release from civil confinement.

         Specifically, Plaintiffs allege that the MDHHS petitions for continuing one-year Hospital Treatment Orders were filed by Defendants regardless of whether Plaintiffs continued to meet the definition of a "person requiring treatment" under M.C.L. § 330.1401 ("Section 401"), the criteria for continuing hospitalization. M.C.L. § 330.1476(2). Plaintiffs were aware of their right to contest these HTO petitions in Probate Court.

         A separate complaint allegation relates to Alternative Leave Status (ALS) - NGRI Committee conditional releases from hospital confinement to community programs. (FAC ECF #44, ¶ 183-86, PgID 915-16.) Plaintiffs aver that they were denied procedural due process each time their ALS authorized leave had been revoked for alleged contract violations by the patients because they had not been provided with a Michigan statutorily mandated notice form that requires MDHHS to provide them, post revocation of ALS status, of their right to contest, by appeal, the grounds for re-hospitalization. FAC ¶ 165.[4] Defendants concede that persons returned to hospitalization after authorized leave in excess of 10 days, never received notice or forms informing them of their right to appeal their return.


         On May 2, 2018, Plaintiffs filed their Complaint. (ECF # 1.) On June 20, 2018, Dr. Stern filed his Answer and Affirmative Defenses. (ECF #20.) On June 29, 2018, Dr. Medoff filed her Answer and Affirmative Defenses. (ECF #22.) The Michigan Department of Health and Human Services ("MDHHS") Defendants filed a Motion to Dismiss on June 29, 2018. (ECF #29.) On July 9, 2018, Dr. Charles Stern filed his First Amended Affirmative Defenses. (ECF #26.) On July 11, 2018, Dr. Lisa Medoff filed Amended and/or Special Affirmative Defenses. (ECF #28.) On August 3, 2018, Plaintiffs filed a Motion for Leave to File the First Amended Complaint (ECF #31) to add parties, which was granted on September 13, 2018. Plaintiffs filed the First Amended Complaint on September 14, 2018. (ECF #44.)

         The three-count First Amended Complaint alleges:

Count I Deprivation of Rights Guaranteed by the Constitutions and Laws of the United States and the State of Michigan - Procedural Due Process Violations under the Fourteenth Amendment, Substantive Due Process under the Fourteenth Amendment, Equal Protection Burdening Fundamental Rights under the Fourteenth Amendment, and Cruel and Unusual Punishment (All Defendants)
Count II Deprivation of Rights Guaranteed by Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131, et sew., (Defendant MDHHS, MDHHS Contractor and Sub-Contractor Defendants, and Defendant MDHHS Employees (including Robert Gordon) in their Official Capacities)
Count III Violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, (Defendant MDHHS, CMH Contractor and Sub-Contractor Defendants, and Defendant MDHHS Employees in their Official Capacities)

         Plaintiff Bickerstaff also seeks injunctive relief.[5]

         Defendants[6] have filed three separate Motions to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).

         Defendant Michigan Department of Health and Human Services ("MDHHS") and several of its employees, named in their individual and official capacities, filed a Motion to Dismiss on October 12, 2018 (ECF #56) ("MDHHS Motion"). The Parties to the MDHHS Motion are: Defendant Robert Gordon (official capacity only); the following in both their official and individual capacities: Mary Solky (Hospital Director at Walter P. Reuther Psychiatric Hospital ("WPRH")); Dr. Laurie Albert (Director of Social Work at WPRH); Dr. Hanumaiah Bandla (Chief of Clinical Affairs at WPRH); Dr. Aruna Bavineni (WPRH psychiatrist); Sharon Dodd-Kimmey; Craig Lemmen; Kimberly Kulp-Olsterland; Lisa Marquis; Martha Smith; Dave Barry; Kelli Schaefer; Diane Heisel; and Joe Corso (collectively, "MDHHS Defendants, " and referred to as a subset of Defendants herein as "MDHHS Employee Defendants" or "MDHHS Defendants"). Dodd-Kimmey, Lemmen, Kulp-Olsterland, Marquis, Smith, Barry, Schaefer, Heisel, and Corso are members of the NGRI Committee at the Center for Forensic Psychiatry ("CFP") (referred to as a subset of MDHHS Defendants herein as "NGRI Committee Defendants"). (FAC, ECF #31-1, ¶¶ 11-15, 17-20, 22, 24, PgID 496-98.) Plaintiffs filed a Response on November 16, 2018 (ECF #69), and the MDHHS Defendants filed their Reply on December 14, 2018 (ECF #75). The Court held a hearing on the MDHHS Defendants' Motion to Dismiss on March 1, 2019.

         Defendant Lisa Medoff, Ph.D., WPRH Director of Psychology, a WPRH employee represented by separate counsel, [7] filed her Motion to Dismiss on October 19, 2018. (ECF #63.) (In this Opinion, Dr. Medoff is included among the "MDHHS Employee Defendants.") Plaintiffs filed a Response on November 26, 2018 (ECF #71), and Dr. Medoff filed her Reply on December 31, 2018 (ECF #76).

         Defendant Charles Stern, Ph.D., a psychologist who was hired by WPRH as an independent contractor to conduct a psychological evaluation of Plaintiff Darryl Pelichet, filed his Rule 12(b)(6) Motion on September 25, 2018. (ECF #49.) Plaintiff Pelichet filed a Response on October 16, 2018 (ECF #60), and Dr. Stern filed his Reply on October 29, 2018 (ECF #65). Plaintiff Pelichet's Response states that Pelichet alone brings a single cause of action against Dr. Stern under Title 42 U.S.C. § 1983 for deprivation of federal constitutional rights (Count I). (Pis.' Resp., ECF #60, PgID 1354.)

         Defendants Drs. Stern and Medoff join and concur in the MDHHS Motion to Dismiss (ECF #56) and Reply (ECF #75), and join and concur in each other's respective Motions to Dismiss and Replies. The MDHHS Motion Defendants have not joined Dr. Stern or Dr. Medoff's Motions. The Court held a hearing on Defendants Stern and Medoff s Motions on March 20, 2019.


         The well-plead non-conclusory allegations in the FAC are construed in the light most favorable to the plaintiffs, and the court also draws all reasonable inferences in favor of the plaintiff. Cahoo v. SAS Analytics, 912 F.3d 887, 897 (6th Cir. 2019)

         To state a civil rights claim under 42 U.S.C. §1983 "a plaintiff must set forth facts that, when construed favorably, establish (1) the deprivation of a right secured by the Constitution or laws of the United States, (2) caused by a person acting under the color of state law." West v. Atkins, 487 U.S. 42, 28 (1988); Dominguez v. Corr. Med Services, 555 F.3d 543, 549 (6th Cir. 2009) (citation omitted).

         "[D]amage claims against government officials arising from alleged violations of constitutional rights must allege, with particularity, facts that demonstrate what each defendant did to violate the asserted constitutional right." Cahoo at 899 (citations omitted). Accord, Ashcroft v. Iqbal, 556 U.S. at 662, 676 (2009).

         In Bishop v. Gosiger, 692 F.Supp.2d 762, 774, the District Court cited Sixth Circuit precedent in pointing out:

"'It is not sufficient for a party to mention a possible argument in a most skeletal way, leaving the court to put flesh on its bones.'" Bishop v. Gosiger, Inc., 692 F.Supp.2d 762, 774 (E.D. Mich. 2010) (quoting Meridia Prods. Liab. Lit. v. Abbott Labs., 447 F.3d 861, 868 (6th Cir. 2006)). "'[I]ssues averted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.'"

Bishop, (quoting McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997)).


         A. MDHHS Policies

         1. Annual Petitions for Continued Treatment Orders (CTOs)

         Plaintiffs allege that the HTO process violations alleged are attributable to the Olszewski Directive (FAC, ECF #44, PgID 876; Ex. A, PgID 952), which mandates that all NGRI patients "who have improved to the point, that release from hospitalization or transfer between facilities is being considered, shall have their treatment plan and recommendations reviewed by" the NGRI Committee.[8] Thus, the Olszewski Directive provision is the keystone for many of Plaintiffs' claims.

         The Court finds that the language of the provision requiring the timely filing of a renewed civil commitment petition, or if not, then a timely referral to the NGRI committee, does not create a policy requiring the filing of such a renewal petition in every case. The Court rejects Plaintiffs' claim that the 2003 Olszewski Directive (discussed infra, at Pages 39-45), requires treatment providers to file petitions for continuing HTOs, regardless of their opinion of the patient's status under the M.C.L. § 330.1401[9] (often referred to as "Section 401" of Michigan's Mental Health Code) criteria as a "person requiring treatment."

         The 2003 Olszewski Directive to "Hospital and Center Directors" states:

It is the policy of the Department of Community Health that all patients/residents under the legal status of "not guilty by reason of insanity" who have improved to the point, that release from hospitalization or transfer between facilities is being considered, shall have their treatment plan and recommendations reviewed by the "NGRI" Committee at the Center for Forensic Psychiatry.
All recommendations to the court for release from hospitalization, transfer between facilities, or alternative treatment shall be reviewed by the NGRI Committee prior to filing and/or appearance. The written recommendations of the NGRI Committee shall be entered into the patient record and disclosed during testimony, if requested. Referrals to the NGRI Committee for review shall be by the hospital/center director/designee. Any delay in referring or filing necessary papers in a timely manner that would result in not renewing the order, will be considered a violation of this policy.
Any person found NGRI for the crime of murder or for a crime that involves sexual conduct, recommended by the NGRI Committee for release, must be reviewed by the Director/designee of the Department of Community Health for final authorization.

(ECF #44, FAC, Plaintiffs' Exh. A, PgID 952.) Thus, as noted supra, the Directive requires all recommendations for release from hospitalization be timely reviewed by the NGRI Committee. Nothing in the Directive says (1) a release can never be recommended or (2) that the NGRI Committee must always file a petition for continued commitment.

         Plaintiffs also cite to a section of the "Center for Forensic Psychiatry (CFP)

Not Guilty by Reason of Insanity (NGRI) Committee Procedures" ("NGRI Procedures"), titled "Alternative Treatment and Combined Hospitalization/ Alternative Treatment Orders:" IN ORDER TO MAINTAIN NGRI STATUS, NGRI PATIENTS SHOULD NOT BE PLACED ON ANY TYPE OF ALTERNATIVE TREATMENT ORDER OR COMBINED HOSPITALIZATION/ALTERNATIVE TREATMENT ORDER. Placement on such orders results in loss of NGRI status, once the patient is discharged from inpatient hospitalization.[10]

(NGRI Committee Procedures Manual, Plaintiffs' Exh. B, PgID 964.) (Capitalization in original.) This clarifies the process for continued NGRI status, and explains the impact of a Plaintiffs loss of NGRI status: when an NGRI patient no longer has inpatient status, the NGRI Committee loses oversight of that individual and can no longer compel the patient to return to the hospital as under the terms of an ALS contract, without seeking a new petition for involuntary commitment.

         With regard to NGRI Committee agreements with community housing contractors and subcontractors, Plaintiffs allege, conclusionally, without any factual basis, that the contractors and subcontractors (some of whom are also Defendants to this suit, but not parties to the instant Motion) agreed at the request of the NGRI Committee to routinely file petitions seeking continuing one-year HTOs, so that the NGRI patients retain "inpatient" status. (FAC at ¶¶30-31, PgID 500-01.)

         2. Alternative Leave Status (ALS)

         When hospitalized Plaintiffs are "released" into the community as inpatients on ALS leave from the hospital, the ALS contracts include conditions of release, and span a period of five years. (Id. at ¶72.) Plaintiffs allege that the NGRI Committee's policy states that patients are not eligible for alternative leave unless the hospital team determines "within the bounds of reasonable clinical certainty, " that they are not likely to repeat the type of behavior that led to the adjudication of NGRI or to commit other dangerous acts. (Id. at ¶ 152.) The Court concludes that this is not supportive of any claim of a violation of a patient's constitutional rights.

         An NGRI Patient may be discharged from commitment/confinement status after successful completion of a five-year ALS contract, or if the Probate Court Judge (1) rejects an annual MDHHS petition for a continuing HTO, (2) grants an MDHHS petition for release from confinement, or (3) grants a patient's petition for release.

         In order to secure a new HTO for the coming year, the Defendant MDHHS petition must demonstrate to the Probate Court Judge that the patient is both: (1) mentally ill; and (2) dangerous, as defined by Section 401 of the Mental Health Code. (ECF #44, FAC, ¶¶79-80, PgID 893.) The petition must be accompanied by a Clinical Certificate executed by a psychiatrist or psychologist who has personally examined the patient, certifying that the patient continues to meet the statutory criteria for involuntary hospitalization. (Id. at ¶ 81.)

         The FAC alleges that in order to secure a court order for continued hospitalization when Pelichet's condition failed to satisfy the statutory or constitutional requirements for involuntary civil commitment, "MDHHS employees" filed petitions for continuing treatment orders that were facially invalid and presented false or misleading testimony to the Probate Court Judge. (FAC at ¶ 82.)

         Plaintiffs' claims rely in a large part on a report authored by the MDHHS Office of Recipient Rights ("ORR"), a patient advocacy office, whose report is referred to extensively in the FAC.[11] The ORR had received and reviewed a complaint from Plaintiff Pelichet, regarding, in particular, HTO hearing in-court testimony given by psychologist Dr. Charles Stern on November 19, 2016, regarding Pelichet's "need for continuing hospitalization." (Exh. F, ECF #44, PgID 1066). The ORR investigated Pelichet's claim, and concluded that Dr. Stern's testimony was incorrect and/or misleading. The ORR Report then expanded its discussion beyond Pelichet, to provide its conclusion with regard the entire NGRI process, allegedly validating Pelichet's complaint, and then proffered its conclusion that WPRH was "using court orders for continued hospitalization to maintain NGRI Committee oversight [which] has become standard practice" and that this "practice" was "placing the due process rights of individuals who have been found NGRI and placed in the care of [MDHHS] in jeopardy." (Id. at Ex. G, Summary Report of Recipient Rights Compl. - Am. Report, 4th Version, PgID 1082.)

         An additional FAC allegation of an MDHHS violation of a confined patient's rights is based upon M.C.L. § 330.1408(3) which states that if a patient released from hospital confinement on an ALS contract, is ordered returned to the hospital by the NGRI Committee: "An opportunity for appeal, and notice of that opportunity, shall be provided to an individual who objects to being returned from any authorized leave in excess of 10 days."[12] (FAC, ¶ 183 at Pg. 915.) Plaintiffs allege that, pursuant to that statute, they were entitled to appeal from the revocation of their leave, and that to facilitate an appeal, be provided with State Court Administrative Office ("SCAO") Form PCM 233, "Notice of Right to Appeal Return and Appeal of Return from Authorized Leave, " intended to facilitate compliance with M.C.L. § 330.1408(3). (Id. at ¶ 186.) Plaintiffs allege that "None of the [return] Plaintiffs...were ever served with SCAO Form PCM 233 or otherwise notified that they had a right to contest their involuntary return to the hospital." In particular FAC ¶ 165 alleges a violation of this requirement with regard to Plaintiff Bickerstaff. At the Court's hearing on the MDHHS Motion to Dismiss, Counsel for Defendant MDHHS did not dispute Plaintiffs allegation that this form was never provided.

         The Sixth Circuit recently reiterated that:

The Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const. Am. XIV, § 1. "[T]he Due Process Clause provides that certain substantive rights - life, liberty, and property - cannot be deprived except pursuant to constitutionally adequate procedures."

Cahoo v. SAS Analytics, 912 F.3d 887-899 (6th Cir. 2019).

         The Court finds that Plaintiff Bickerstaff s unchallenged allegation of a violation of §330.1408(3), that Plaintiffs were deprived of their State statutory right to receive notice of their right to appeal from revocation of their ALS status, supports Plaintiffs' claim against Defendant MDHHS for a violation of the Michigan Statute.

         B. Individual Plaintiffs

         1. Darryl Pelichet

         Twenty years ago, Pelichet had been incarcerated for three years. (ECF #44, FAC, Ex. J, May 3, 2017 Internal Psychiatric Evaluation - Pelichet, PgID 1092.) Thereafter, in 2005, at the age of 24, Pelichet was charged with assaulting a police officer. (Id. at ¶64, PgID 890.) He was found NGRI and civilly committed to the Center for Forensic Psychiatry ("CFP"), where, for the first time, he was treated for a schizoaffective disorder. (Id. at ¶¶ 66-68.) His symptoms allegedly went into remission. (Id.)

         As an MDHHS in-patient, Pelichet had been released on seven ALS contracts between 2005 and 2017, but was returned to WPRH for various serious contract violations, including marijuana use, making verbal threats, distributing marijuana, and violating curfew. (Id. at Ex. J, PgID 1092.) In 2017, he exercised his right to trial in Probate Court to challenge an MDHHS Petition for continued hospitalization, and he prevailed. (Id. at ¶¶74, 110, PgID 892, 900.) He was discharged from hospitalization on January 30, 2018. (Id.)

         Pelichet is the sole Plaintiff bringing a claim against Dr. Charles Stern, Ph.D.[13] (Pls.' Resp., ECF #60, PgID 1354.) Dr. Stern, an independent contractor, conducts psychological evaluations of NGRI patients at WPRH prior to their Probate Court hearings. (ECF #44, FAC, ¶23, PgID 880.) Independent evaluations are required in Probate Court proceedings. (Id. at ¶ 254; M.C.L. § 330.1343.) Dr. Stern was hired by WPRH to conduct a psychological evaluation of Pelichet in the fall of 2016 prior to the hearing on a petition for a continuing Hospitalization Treatment Order. (Id. at ¶¶ 82-85, PgID 893-94.) The purpose of the required in-person evaluation and to then testify to his findings. (Id. at ¶ 84.) was to determine if Pelichet's mental condition continued to meet the standard thresholds for subjecting him to continued involuntary psychiatric hospitalization.

         The FAC alleges that Dr. Stern failed to conduct a "bona-fide" psychological evaluation of Pelichet. (Id. at ¶259, PgID 936.) Plaintiff contends that Dr. Stern conducted a "sham" evaluation, the results and consequences of which, an order subjecting him to an additional year of involuntary hospitalization, were "predetermined." (Id. at ¶ 261, PgID 937.) Pelichet alleges that after meeting Dr. Stern on one occasion for less than twenty minutes, his court testimony recommended an additional year of involuntary hospitalization. Plaintiff contends that this evaluation was "too brief to conduct meaningful psychological testing, to accurately evaluate a patient's present mental health condition, or to determine the patient's present level of dangerousness to himself or others." (Id. at ¶259, PgID 936.) Plaintiff further contends that prior to his testimony, Dr. Stern did not discuss Pelichet's present mental health condition with members of Pelichet's treatment team. (Id. at ¶ 260, PgID 936-37.) Plaintiff concludes that Dr. Stern's testimony about his compliance with treatment was false, misleading, or both. (Id. at ¶93, PgID 896.)

         In addition, Plaintiff alleges that in an ORR investigation interview Dr. Stern attempted to mislead ORR investigators, and became "hostile" when questioned about whether his recommendations were based on discussions with Pelichet's treatment team. (Id. at Ex. F, Sep. 8, 2017 Report of Investigative Findings, PgID 1072.) The ORR Report alleged that while Dr. Stern both testified in the court and stated to an ORR investigator that he had spoken to Pelichet's treaters, his treaters had denied this. (Id.) Plaintiff further alleges that the ORR report stated that while Dr. Stern testified in court that he had reviewed the file as to Pelichet's original charges (a.k.a., the "settled record"), this was not possible because that file was not kept onsite at the hospital. (Id. at PgID 1068.)

         The FAC alleges that Defendant WPRH employee Dr. Aruna Bavineni, who was not named in Pelichet's complaint to the ORR, had provided false or misleading documents and testimony regarding Pelichet to the Probate Court in order to obtain a continuing HTO. Plaintiff alleges that on October 30, 2016, Dr. Bavineni completed a Clinical Certificate indicating that Pelichet was a "person requiring treatment, " but did not provide reasons why he met the criteria for any of the four categories. (Id. at ¶ 99, PgID 897.) Plaintiffs allege that when Pelichet filed a Petition for Discharge six months later, Dr. Bavineni was required to file a Six-Month Review, as to whether she believed Pelichet "can reasonably be expected in the near future to intentionally or unintentionally seriously physically injure self or others...." (Id. at ¶¶ 101-02, PgID 898.) At the May 3, 2017 hearing on Pelichet's Petition for Discharge, she testified to the contents of her Six-Month Review and recommended a continuing HTO. (ECF #44, FAC, ¶ 104, PgID 899.) According to Pelichet's ORR Report, Dr. Bavineni stated to them that she "did not understand that facts were required to support the assertion" that Pelichet posed a risk of danger to himself or others. (Id at ¶ 106; Ex. J, PgID 1091.)

         Plaintiff further alleges that later on May 3, 2017, the day of her Probate Court testimony, Dr. Bavineni had completed a Report of Pelichet for internal WPRH purposes, that found Pelichet posed no recent risk of violence to himself and no current or past risk of violence to others. (Id. at ¶ 105; Ex. J, May 3, 2017 Internal Psychiatric Evaluation - Pelichet, PgID 1097-98.)

         Defendant Dr. Lisa Medoff, who also testified at Pelichet's May 3, 2017 Probate Court hearing, was not mentioned in Pelichet's complaint to the ORR. (Id. at ¶ 105, PgID 899.) Pelichet had previously had his ALS contracts revoked on multiple occasions for failing marijuana drug screens. (Id. at ¶75.) The FAC alleges that Counsel for Pelichet had asked Dr. Medoff on cross-examination if "there was ever a point in time that [Pelichet] has ever injured himself or others during this entire period from 2005 to now, that we - that we're now looking at?" and she responded, "Well from my perspective, I consider taking a drug which can be contradictory to your health something that is dangerous. So I consider that harm to self." (FAC at ¶233.) She further testified that, to her knowledge, he had never actually physically harmed himself or others since 2005 except for "harming himself by smoking marijuana. (Id. at ¶ 233-34; Ex. U, Tr. of May 3, 2017 Probate Court Hr'g, PgID 1187.) The Court notes that marijuana is a federal Schedule One controlled substance, subject to a Federal Criminal Prosecution. 21 U.S.C. § 812(c)(10). The Court also notes that Pelichet suffers from a schizophrenic disorder. Supra, Pg. 4, n.2.

         2. Plaintiff Joshua Ragland

         Ragland has "struggled with depression, " and on February 8, 2014, was pulled off the edge of a bridge by police officers as he was "contemplating suicide." (FAC at ¶¶ 112-13.) When he resisted, the officers had to tackle and restrain him. (Id. at ¶ 114.) Ragland was initially transported to a hospital emergency room, and then to the Henry Ford Kingswood Psychiatric Hospital for treatment for his suicide attempt. He was treated as an inpatient for three weeks, and then discharged. (Id. at ¶¶ 115-16.) In June of 2014, four months after his suicide attempt, Ragland was arrested and charged with resisting/obstructing an officer and felonious assault, for resisting and assaulting the officers who had pulled him off the bridge. (Id. at ¶ 117.) In October 2014, he resolved the State criminal charges with a plea of NGRI, and he was confined at the CFP for five months. (Id. at ¶¶ 118-19.)

         Plaintiff Ragland has had a 2015 ALS contract revoked on one occasion. (Id. at ¶ 185.) On January 14, 2016, police officers were called to Ragland's mother's home and returned him to WPRH, where his leave was revoked. (Id. at ¶¶ 1121-22.) Plaintiffs allege that Ragland's ALS was revoked because the NGRI Committee believed, on the basis of a report from Ragland's treatment team, that he had admitted to "occasionally" having a beer and smoking marijuana "once, " in violation of his ALS contract terms. (Id. at ¶ 122.) Plaintiffs allege that there was a mistake/misinterpretation by the NGRI, and that Ragland had in fact been talking about past substance use, rather than admitting substance use while he was under the ALS contract. (Id. at ¶ 123.)

         Ragland was re-admitted to WPRH from January 14, 2016 until December 16, 2016, when he was given leave on another ALS contract. (Id. at ¶¶ 126-27.) While on this ALS leave, Ragland's outpatient treatment provider allegedly refused to file a petition for a continuing Hospitalization Treatment Order, and it was decided after members of Ragland's treatment team met with an NGRI Committee representative, that WPRH would file the petition for continued confinement because the ALS contract stated that "ultimate responsibility for petitioning remains with the hospital." (Id. at ¶¶ 129-30, PgID 904.) On April 21, 2017, at a Probate Court hearing on WPRH's petition for a continuing HTO, the Judge denied the MDHHS petition and released Ragland from confinement. (Id. at ¶ 132.)

         3. Plaintiff Bonn Washington

         Washington, 43 years-old, suffers from a schizoaffective disorder. (Id. at ¶ 134.) In 2005, after Washington assaulted a Washtenaw County Sheriffs Deputy during a psychotic episode, he was charged with assault and found NGRI. (Id. at ¶¶ 135-36.) Washington alleges that he has not experienced an acute psychotic episode since 2005. (Id. at ¶ 139.) Washington had been released on ALS contracts five times between 2005 and 2018; his stretches of leave time ranged from one month to approximately two years. (Id. at ¶ 140.) Washington was on ALS as of January 2018. (Id. at ¶ 141.) He is now on an Alternative Treatment Order, no longer under commitment, and is not under inpatient status. (Defs. Stern and Medoff Mots. to Dismiss Hr'g Tr., Mar. 20, 2019, ECF #83, PgID 2286, 30:17-19.)

         4. Plaintiff Darius Bickerstaff

         Bickerstaff was diagnosed with schizoaffective bipolar disorder. (Id. at ¶ 147.) He stopped taking his medication in March 2014, when he was 26 years old, and had a psychotic episode that resulted in a physical altercation in his grandmother's home. (Id. at ¶ 148.) He was charged with felonious assault with intent to do great bodily harm against his grandmother's elderly boyfriend. (Id.) He was adjudged NGRI, confined to the CFP, and then transferred to WPRH in March 2016. (Id at ¶ 149.)

         The FAC avers that the Petitions for Bickerstaff s continuing HTOs that were granted indicate that he may be a danger to himself or others, while he has allegedly been compliant on ALS. (Id. at ¶ 155.) Bickerstaff also alleges that his ALS was revoked on one occasion, solely because of a MDHHS community contractor's failure to timely find replacement housing for him after WPRH staff had concluded that his current housing situation was treating him poorly. (Id. at ¶¶ 161-62.) Bickerstaff was approved for ALS in April 2018, and another petition for a continuing HTO was filed by WPRH in May 2018. (Id. at ¶¶ 169-70.) Bickerstaff has filed a Petition for Discharge. He has been granted ALS with travel rights during the pendency of this suit. (Hr'g Tr., Mar. 20, 2019, Defs. Stern and Medoff Mots, to Dismiss, ECF #83, PgID 30:17-19.)

         5. Michigan Protection and Advocacy Service (MPAS)

         Plaintiff MP AS, a nonprofit organization incorporated in Michigan, alleges that it "brings this action on its own behalf and on behalf of its constituents who have been directly affected by Defendants' unlawful policies and practices." (FAC, ECF #44, PgID 885.) MPAS alleges that it has been "designated by the governor as the protection and advocacy organization for individuals who have physical, mental, and developmental disabilities in the State of Michigan." (FAC, ECF #44, PgID 886, ¶44.) MP AS alleges that "under the Federal Developmental Disabilities Assistance and Bill of Rights Act of 1975 (DD Act), each state is required to have a statewide Protection and Advocacy network in place...." (Id. PgID 886, ¶46.)

         MPAS further alleges that under the Protection and Advocacy for Individuals with Mental Illness Act (PAIMI), MPAS has a "federal mandate to pursue ... legal . . . remedies to ensure the protection of individuals with mental illness, 42 U.S.C. § 10805(a)(1)." (FAC at PgID 887, ¶49.)

         MPAS alleges that its "constituents include the named individual plaintiffs, as well as all other forensic patients. (FAC at PgID 888, ¶56.)

         MPAS states that is seeks "Only declaratory and injunctive relief... as it pertains to the state's policies, practices, supervision, training and customs as a whole and does not require the participation of individual members to resolve." (FAC at PgID 889, ¶60.)

         Finally MPAS alleges that it has been "investigating a number of complaints from NGRI patients regarding their confinement . . . (including Plaintiff Darius Bickerstaff)." (FAC at ¶62, PglDs, 889-890.)


         Federal Rule of Civil Procedure 12(b)(6) allows for the dismissal of a case where the complaint fails to state a claim upon which relief can be granted. As noted supra, when reviewing a motion to dismiss under Rule 12(b)(6), a court must "construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences ...

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