Closs v. Weber

• Decision Date: 23 December 1999
• Docket Number: No. Civ. 99-4124.,Civ. 99-4124.
• Citation: 87 F.Supp.2d 921
• Parties: Randy Lee CLOSS, Petitioner, v. Douglas WEBER, Warden, South Dakota State Penitentiary, Respondent.
• Court: U.S. District Court — District of South Dakota

87 F.Supp.2d 921

Randy Lee CLOSS, Petitioner, v. Douglas WEBER, Warden, South Dakota State Penitentiary, Respondent.

No. Civ. 99-4124.

United States District Court, D. South Dakota, Southern Division.

December 23, 1999.

Carolyn K. Dick, Sioux Falls, SD, for petitioner.

Douglas Weber, Sioux Falls, SD, respondent pro se.

Craig M. Eichstadt, Attorney General's Office, Pierre, SD, for respondent.

MEMORANDUM AND ORDER

PIERSOL, Chief Judge.

Petitioner Randy Lee Closs, a South Dakota inmate, petitions for habeas corpus relief under 28 U.S.C. § 2254. For the reasons stated below, the petition is granted.

I. Background and Procedural History

On April 12, 1984, when petitioner was twenty-one years old, a South Dakota jury convicted him of second-degree burglary and grand theft in one case and of third-degree burglary and petty theft in a second case. All counts were joined for trial. The trial court sentenced petitioner to fifteen years of imprisonment on the second-degree burglary conviction and ten years on the grand theft conviction, to run concurrently. The trial court sentenced petitioner to ten years of imprisonment on the third-degree burglary conviction and one year on the petty theft conviction, to run concurrently, but the court ordered the ten-year sentence to run consecutively to the fifteen-year sentence, for a total sentence of twenty-five years in the South Dakota State Penitentiary. The South Dakota Supreme Court affirmed on direct appeal. State v. Closs, 366 N.W.2d 138 (S.D.1985). Petitioner then launched an unsuccessful collateral attack on his convictions through state and federal habeas corpus petitions. Closs v. Leapley, 18 F.3d 574 (8th Cir.1994).

Petitioner has a psychiatric history dating to his teenage years. He carries a diagnosis of schizophrenia, undifferentiated, episodic with inter-episodic residual symptoms. Petitioner has been hospitalized at the South Dakota Human Services Center¹ on four occasions, and he has been treated with numerous psychotropic medications, including Navane, Chlorpromazine, and Haldol. He has also been treated with medications to control side effects of the psychotropic medications. The petitioner has a history of refusing medication and "cheeking" oral medication because of its side effects. There is limited evidence in the record that petitioner may become verbally aggressive and throw objects if he is not taking medication.

Petitioner was first admitted to the Human Services Center on juvenile code status on April 18, 1979, and he was discharged on May 9, 1979. His second admission was also on juvenile code status with an admission date of June 20, 1979, and a discharge date of January 6, 1981. Petitioner's third hospitalization was recorded as a mental illness upon his transfer from prison on January 23, 1990, and he was discharged back to the penitentiary on February 27, 1990 to continue serving his sentences.

Petitioner completed service of the fifteen-year sentence and, on January 28, 1992, he commenced service of his consecutive, ten-year sentence. By the summer of 1997, petitioner was thirty-four years old and had been in prison fourteen years. Petitioner was housed in the Jamison Annex, South Dakota State Penitentiary Mental Health Unit, and he had refused prescribed medication since January 30, 1997. Notes from Dr. Pesce at the Penitentiary indicated that he observed increased anxiety in petitioner as his potential parole release date neared. Dr. Pesce noted his observation that petitioner was in no way ready to live in society. Dr. Pesce viewed petitioner as quite fragile and not wellequipped to succeed without a lot of support. He recommended inpatient treatment. Petitioner was due to flat-time out of the penitentiary in December 1998.

On June 27, 1997, the Board of Pardons and Paroles granted petitioner parole under SDCL Chapters 24-13 and 24-15. Specifically, pursuant to SDCL § 24-15-11, the Board imposed certain conditions on the petitioner. James D. Sheridan, a Board member, signed and completed a form, placing his initials next to the standard conditions imposed. Those conditions were that the petitioner (1) not consume alcoholic beverages or enter an establishment where alcoholic beverages are the main item of sale while on parole; (2) maintain contact with his parole agent at the agent's discretion; (3) begin and maintain psychological or psychiatric treatment at a facility or with a psychologist or psychiatrist approved by the Board; (4) obtain mental health counseling; and (5) obtain verification of a residence before release. Sheridan also placed his initials next to condition number 11 for "Other" and wrote in his handwriting: "This subj has done enought (sic) time for Burglary. He needs to get into Yankton or some other placement for mentally ill persons." Sheridan dated the form June 27, 1997, and petitioner signed it on July 1, 1997.

A supervising parole agent then completed a parole Agreement which both he and petitioner signed on the same day, July 1, 1997. By placing "XX" next to certain standard conditions set forth in the Agreement, the parole agent transferred into the Agreement the standard conditions imposed by the Board in the form signed on June 27, 1997, by James Sheridan. In condition number 13, "SPECIAL LIMITATIONS," the parole agent did not place "XX" next to "Mental Health" in the list of programs the petitioner agreed to complete, but the parole agent did check "Other" and included the following:

Maintain contact with your parole agent at agent's discretion. Begin and maintain psychological or psychiatric treatment at a facility or with a psychologist or psychiatrist approved by the Board. Obtain Mental Health counseling. Verification of residence before release. This subject has done enough time for Burglary. He needs to get into Yankton or some other placement for mentally ill persons.

On July 10, 1997, the South Dakota Board of Pardons and Paroles released the petitioner from prison on parole and transferred him to the Human Services Center. A note attached to petitioner's medical records from the Human Services Center states in part: "7/8/97 — Mr. Closs is currently under parole supervision. One of the conditions of his parole was that he voluntarily admit himself to the Human Services Center for treatment and care." On July 10, 1997, petitioner signed an Application For Hospitalization Voluntary Patient (Adult) — Psychiatric Services —," and he was admitted as a voluntary patient. The following day, July 11, 1997, petitioner signed a different parole Agreement, prepared and signed by a different supervising parole agent. The two parole Agreement forms were identical except for condition number 13, "SPECIAL LIMITATIONS." The second parole agent did check the line next to "Mental Health" and added "(HUMAN SERVICES CENTER)." Also, he amended the last paragraph to read:

1. MAINTAIN CONTACT WITH AGENT AS DIRECTED. 2. BEGIN AND MAINTAIN PSYCHLOGICAL (sic) OR PSYCHIATRIC TREATMENT AT A FACILITY OR WITH A PSYCHOLOGIST OR PSYCHIATRIST APPROVED BY THE BOARD. 3. SUPERVISION FEE OF $10.00 PER MONTH.

The petitioner's medical records from the Human Services Center show that, on July 8, 1997, staff members at the mental health unit of the Penitentiary contacted the Human Services Center to arrange the petitioner's placement at the facility on July 10 as a voluntarily admitted patient. The notes show that petitioner was refusing all medications at the penitentiary, but that "he has been doing fairly well even while he has been off his meds." The notes show that Dr. Pesce recommended referral of the petitioner to the Human Services Center "for evaluation and possible treatment."

At the Human Services Center, Dr. Hartley Alsgaard, treating psychiatrist, conducted a psychiatric evaluation on July 10, 1997. He stated in his report:

REASON FOR HOSPITALIZATION: The penitentiary was faced with a situation where they had this patient refusing to take medication. They declared he did not meet the criteria for forced medication and they felt he was not sufficiently stable to return to the community. They then obtained a parole order saying that he had to come here and accept treatment or it would be a violation of his parole. They then transferred him here as a treatment prior to being returned to the community. One hopes that their intent was that when faced with the prospect of going back to the penitentiary he would agree to accept medication.

Dr. Alsgaard reported that petitioner "is not actually having a present illness at this time. He's off his meds for a couple of months now and evidently has not decompensated." Dr. Alsgaard also noted that petitioner was in no acute distress, and "he's very reluctant to acknowledge that he will accept medications. He stares for extended periods of time. Shows no other psychomotor abnormalities." The psychiatrist observed that petitioner's mood was neutral with some anxiety and his affect was blunted. He was coherent, but illogical, and frequently changed the topic of conversation. He demonstrated circular reasoning and did not "want to talk about medications. Is constantly trying to bargain, saying that we'll talk it out and will be able to work it out but the bottom line is that he doesn't want to take the medications and he makes that quite clear." Petitioner denied audio and visual hallucinations and denied suicidal or homicidal ideas. No delusional material could be elicited from him. Dr. Alsgaard noted petitioner's cognitive function was dull normal to borderline intellectual functioning. He was oriented to time, place and person, but in Dr. Alsgaard's opinion, he had no insight and marginal judgment. Dr. Alsgaard prescribed Risperdal, a psychotropic medication, to be increased in dosage over a course of days.

Dr. Alsgaard wrote in a Psychiatric Progress Note dated July 11:

They sent him here as a Voluntary patient, as a condition of his parole. Further conditions of...