Barichello v. McDonald

• Decision Date: 16 October 1996
• Docket Number: No. 94-2810,94-2810
• Citation: 98 F.3d 948
• Parties: Daniel BARICHELLO, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. Jesse McDONALD, Director of the Department of Mental Health and Developmental Disabilities; Angelo Campagna, Director of Elgin Mental Health Center; and Ernest Marquez, Administrator of the Forensic Treatment Program of Elgin Mental Health Center, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 948

98 F.3d 948

Daniel BARICHELLO, individually and on behalf of all others

similarly situated, Plaintiff-Appellant, v. Jesse McDONALD, Director of the Department of Mental Health and Developmental Disabilities; Angelo Campagna, Director

of Elgin Mental Health Center; and Ernest Marquez,

Administrator of the Forensic Treatment Program of Elgin

Mental Health Center, Defendants-Appellees.

No. 94-2810.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 6, 1995.

Decided Oct. 16, 1996.

Mark J. Heyrman, Sharon Swingle, Law Student (argued), Adam Goodman, Mandel Legal Aid Clinic, Chicago, IL, for Plaintiff-Appellant.

Jan E. Hughes, Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendants-Appellees.

Before RIPPLE and BAUER, Circuit Judges, and SKINNER, District Judge. ^*

SKINNER, District Judge.

Plaintiff-appellant Daniel Barichello represents a class of involuntarily committed mental patients at the Elgin Mental Health Center ("Elgin"). Barichello has filed a seven count complaint seeking injunctive and monetary relief, alleging that defendant officials of the Illinois Department of Mental Health and Developmental Disabilities ("DMH") have violated his rights by barring certain patients from receiving grounds privileges. On summary judgment, the district court ruled that defendants had qualified immunity. The district court also abstained sua sponte under the doctrines of Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943) and Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) from exercising jurisdiction over Barichello's equitable claims. On appeal, Barichello asserts that (1) the defendants are not entitled to qualified immunity, and (2) abstention was inappropriate in this case. We affirm.

I. BACKGROUND

A. Barichello's Confinement History

While awaiting trial for the murder of Joseph Treff in June 1983, Barichello began After Barichello had spent a year at the Chester Mental Health Center ("Chester"), a judge of the Cook County Criminal Court conducted a discharge hearing, pursuant to 725 ILCS 5/104-25. At the conclusion of this hearing, the court found that the state had demonstrated beyond a reasonable doubt that Barichello had murdered Treff, and extended Barichello's treatment for five years, pursuant to 725 ILCS 5/104-25(d)(2). Upon completion of this term, Judge Morgan of the Cook County Criminal Court conducted a commitment hearing on June 30, 1989, pursuant to 725 ILCS 5/104-25(g)(2). After finding that Barichello continued to be UST, and that Barichello was "reasonably expected to inflict serious physical harm to himself and others and is unable to care for himself," Judge Morgan committed Barichello for a period of 40 years--a term equivalent to the maximum sentence for a murder conviction.

to exhibit signs of significant mental illness. At a fitness hearing conducted pursuant to 725 ILCS 5/104-16, psychiatrists diagnosed Barichello as a paranoid schizophrenic. Barichello was found to be unfit to stand trial ("UST"), and was placed in the custody of the DMH on November 3, 1983, pursuant to 725 ILCS 5/104-17(b).

On March 27, 1991, Barichello was transferred from Chester to Elgin, a medium security facility. Since the transfer, Barichello has lived in the Forensic Treatment Center, a secured building which houses criminal defendants who have been found unfit to stand trial, pursuant to 725 ILCS 5/104-13 et seq. ("UST patients"), and persons who have been adjudicated not guilty by reason of insanity pursuant to 730 ILCS 5/5-2-4 ("NGRI patients"). Elgin also serves a large number of non-criminal patients, committed under the Illinois Mental Health Code (405 ILCS 5/1-100 et seq.).

B. Pass Privileges

Under Illinois law, mental patients committed under criminal process are not permitted to leave their residential units unless accompanied by a mental health worker. See 730 ILCS 5/5-2-4(b) (NGRI patients); 725 ILCS 5/104-31 (UST patients). Illinois law does authorize these patients to obtain passes which allow unsupervised access to the community outside the hospital (an "off-grounds" pass) or to the hospital grounds (a "grounds" pass).

The issuance of either type of pass requires a court order. For NGRI patients, a pass recommendation is submitted as part of the treatment plan filed with the Illinois courts every sixty days. 730 ILCS 5/5-2-4(b). NGRI patients must request passes from the court through a DMH staff recommendation, and may not petition the court directly. See People v. Owens, 269 Ill.App.3d 152, 206 Ill.Dec. 478, 482, 645 N.E.2d 483, 487 (1994). Once the DMH staff has made a recommendation, the Illinois courts may accept or reject it. See, e.g., People v. Robin, 264 Ill.App.3d 936, 202 Ill.Dec. 798, 638 N.E.2d 666 (1994). The record does not indicate that there is an analogous statutory provision for submitting UST pass recommendations to the Illinois courts, or that UST patients may petition the court directly.

In May 1990, the Elgin staff severely curtailed the issuance of all passes following the escape of two patients who had off-grounds passes. Although Elgin has reinstituted a policy for submitting NGRI pass requests for court approval, the record does not indicate that there has ever been a similar program for UST patients.

In April 1993, Barichello indicated to his physicians that he would like to be considered for a grounds pass. The parties disagree about why this request was denied. Barichello cites a July 31, 1992 letter from a DMH Freedom of Information Officer stating inter alia that "at the Elgin Mental Health Center, McFarland Mental Health Center and Singer Mental Health & Developmental Center passes are not requested for UST clients." (emphasis added). Barichello interprets this letter as smoking gun proof that the Elgin staff had adopted a policy neither to recommend UST patients for passes, nor to pass any such recommendations on to the Illinois courts. Barichello argues that the adoption of this policy constitutes an abdication of constitutionally-mandated standards of professional conduct.

C. Proceedings Below

Barichello filed a seven count complaint, asking for monetary, declaratory, and injunctive relief on five constitutional grounds, and monetary relief for two violations of the Illinois Mental Health Code. On July 26, 1993, the defendants moved for partial summary judgment on the ground of qualified immunity. In January 1994, the district court certified Barichello to represent a class of 25 Elgin UST patients who had been committed pursuant to 725 ILCS 5/104-25(g)(2). ¹

In his order of June 29, 1994, the district judge allowed defendants' motion for summary judgment on all claims for monetary damages, finding that defendants had qualified immunity. The district court also sua sponte determined that abstention was appropriate in this case under both Burford and Younger doctrines, and declined to exercise jurisdiction over the injunctive claims. Since that time, the defendants have conceded that Burford abstention was unwarranted in light of the panel decision in Nelson v. Murphy, 44 F.3d 497 (7th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 671, 133 L.Ed.2d 521 (1995), a similar case involving NGRI patients. This appeal followed.

II. ANALYSIS

A. Qualified Immunity on the Constitutional Claims

We review a grant of summary judgment de novo, construing all inferences from the facts in "the light most favorable to the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). On a motion based on qualified immunity, summary judgment is not appropriate if the plaintiff "can present a version of the facts that is supported by the evidence and under which defendants would not be entitled to qualified immunity." Hall v. Ryan, 957 F.2d 402, 404 (7th Cir.1992). The plaintiff has a "threshold" pleading obligation of demonstrating that the infringed constitutional right was "clearly established" at the time of the violation. See Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991).

On this record, the strongest version of the facts which Barichello could present is that the Elgin staff implemented a policy in May 1990 suspending further initiation of the court proceedings necessary to approve UST patients for passes. We conclude that even under this scenario, Barichello has not met his threshold obligation of demonstrating a violation of any clearly established constitutional right.

Count I alleges that the Elgin staff have treated UST patients and civil patients disparately with respect to their abilities to obtain passes, invoking the equal protection and due process holdings of Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972). Jackson concerned a UST patient who was involuntarily committed to a state mental hospital "until sane." The equal protection portion of the case held that the state had not justified applying a "more stringent standard of release [for UST patients] than those generally applicable" to civil patients. Id. at 730, 92 S.Ct. at 1854. Jackson only concerns standards of release. There is no language in Jackson suggesting that UST patients have a right to the same treatment or conditions of confinement as civil patients. See Jackson, at 730-731 n. 9, 92 S.Ct. at 1854 n. 9 (stating that no disparity in treatment had been demonstrated and therefore was not at issue).

We found many cases following Jackson which discuss equal protection in the context of a patient's release. See, e.g., Foucha v. Louisiana, 504 U.S. 71, 85, 112 S.Ct. 1780, 1788, 118 L.Ed.2d 437 (1992). We have Counts II through IV allege that Elgin staff deprived Barichello of a liberty interest without due process of law, in violation of Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). In balancing a mental patient's liberty interests against...