Covington v. Harris

• Citation: 419 F.2d 617
• Decision Date: 14 March 1969
• Docket Number: No. 21935.,21935.
• Parties: James COVINGTON, Appellant, v. David W. HARRIS, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

419 F.2d 617 (1969)

James COVINGTON, Appellant, v. David W. HARRIS, Appellee.

No. 21935.

United States Court of Appeals District of Columbia Circuit.

Argued December 5, 1968.

Decided March 14, 1969.

COPYRIGHT MATERIAL OMITTED

Mr. Thomas C. Green, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U.S. Atty., were on the motion, for appellee.

Mr. Charles R. Halpern, with whom Mr. Stephen B. Rosenberg was on the opposition to the motion, for appellant.

Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and McGOWAN, Circuit Judge.^*

BAZELON, Chief Judge:

The District Court heard and dismissed appellant's habeas corpus petition seeking transfer from the maximum security pavilion of Saint Elizabeths Hospital to some less restrictive ward. On this appeal appellant not only contests this order, but also asserts that he is entitled to be released from Saint Elizabeths altogether because of numerous alleged defects in the proceedings leading to his civil commitment. Appellee promptly moved for summary affirmance on the grounds that the record adequately supports the order denying transfer and that none of the other issues appellant now raises was presented below. Thereupon, appellant requested summary reversal on the transfer issue and further argument on the others. Because of deficiencies in the record, we think a remand, rather than any final disposition, would best serve the interests of justice.

I

Appellant was convicted of second degree murder in 1942 and served a 14-year prison sentence. In 1957, soon after his release, he was again charged with murder. This time he was found incompetent to stand trial because of "mental deficiency 38 I. Q. with psychotic reaction," and was confined in Saint Elizabeths. In 1964, he was civilly committed to the hospital, and the pending murder charge was dismissed. Ever since his original confinement he has been continuously lodged in the John Howard (maximum security) Pavilion. Though his I. Q. has risen to 52, the hospital says he is still suffering from the same syndrome.

Generally, during his ten years in John Howard, appellant has by all accounts been a model patient, cooperating with the staff and staying out of trouble. Under the influence of medication he has shown no overt signs of violence. In December, 1966, while under an experimentally reduced dosage of medication, he confessed to having "murderous thoughts" towards some of his fellow patients, but these thoughts were stilled by restoring his full dosage. Considering this record and the improvement he had shown during confinement, his supervising physician, Dr. Weickhardt, recommended in September, 1967, that he be transferred out of the maximum security division. The recommendation was disapproved by Acting Superintendent Harris, whereupon appellant brought this habeas corpus action in the District Court pro se, explaining that he "would like to get out on the grounds where I have ground privileges and catch a little fresh air."

In a hearing before Judge Sirica, Dr. Weickhardt stood by his recommendation, stating that while appellant would never achieve normal intelligence,

as long as he takes medicine such as he is getting now — a tranquilizer — and as long as he refrains from the use of alcohol, I think that he can get along well under supervision.

The doctor had been unable, however, to convince the Superintendent that appellant, if permitted more freedom, might not begin to use alcohol, with "unpredictable consequences." The hospital thought it more prudent to wait a full year after the "murderous thoughts" episode before risking a less restrictive régime. Judge Sirica complained that he couldn't see "why the Superintendent doesn't accept the advice of the doctor that sees this man all the time," but decided to continue the case until the hospital had reconsidered the transfer recommendation in December as scheduled, at the end of the year of "murderous thoughts."

The hospital did not reconsider its decision; indeed, it may not have even formally reconsidered appellant's request.¹ Accordingly, appellant was back in court in February, 1968, before Judge Hart. But Dr. Weickhardt now reversed his field and refused to recommend a transfer. In the unkindest cut of all, the doctor said the reason for his change of heart was an incident in which appellant reported that another patient had stolen money from him. The authorities searched the accused patient and found five dollars and some contraband drugs, including pills and a pink liquid. This discovery set in motion a train of inferences which, according to Dr. Weickhardt, were cumulatively fatal to appellant's hopes. Appellant's medication was a pink liquid. And though other medicinal liquids administered in the pavilion were also pink, though no analysis was performed on the confiscated drug to determine if it could have been appellant's, though appellant testified that he was never given any pills and that he was always obliged to swallow his pink liquid in the presence of an attendant — nonetheless Dr. Weickhardt concluded from the discovery of pills and pink liquid on the thief that "there was reason to think there had been some dealings between appellant * * * and the other patient about money and drugs." Moreover, it appears that, while not uncommon, money itself is formally contraband in John Howard Pavilion. Appellant said he had found the money in the courtyard where others had been gambling, but that he had inadvertently neglected to turn it in, though he knew he should have done so. Despite the fact that, if he had willfully violated the rules, he was of course only incriminating himself by reporting the theft, Dr. Weickhardt concluded that

if Mr. Covington cannot follow the regulations about contraband in the Maximum Security Building * * *, he would be even less inclined to follow them where there is less supervision.

Finally, the doctor noted that appellant had in 1942 committed murder after an altercation over a small sum of money. He conceded that appellant's behavior in calmly reporting the instant money incident was, in contrast, "much to his credit," but he surmised that the Superintendent "felt there might be a possibility that things like this would happen again between him and another patient. * * *"

On this evidence, the court dismissed the petition, relying on the Superintendent's initial decision to deny transfer, a decision now unopposed by any medical authority.

II

On its motion for summary affirmance, appellee does not deny that appellant may seek transfer out of John Howard Pavilion via habeas corpus. It is well settled that habeas corpus challenges the place as well as the fact of confinement,² even if the challenged place is a particular hospital ward,³ and specifically if the particular ward is the John Howard Pavilion.⁴

Rather, appellee says that under the standard governing judicial review of hospital decisions concerning internal administration articulated in Tribby v. Cameron,⁵ the question is not whether the hospital has made the best decision, but only whether

it has made a permissible and reasonable decision in view of the relevant information and within a broad range of discretion.⁶

Appellee submits that since the District Court implicitly found the hospital's decision "permissible and reasonable," and since this finding is not "clearly erroneous," there is no substantial issue for appellate determination. Appellant, on the other hand, asserts that the hospital manifestly failed to carry its burden of proof and that he is therefore entitled to summary reversal.

We agree with appellee that Tribby states the applicable standard of judicial review. But the predicate for the hospital's "wide range of discretion" under Tribby is a record which gives assurance that its decision has been made "in view of the relevant information." We cannot tell from the present record whether such information was considered or not. Accordingly, since neither of the parties objects to clarification of the record,⁷ we remand to the District Court for further proceedings to expand the record and to make findings of fact. The scope of the proceedings on remand required by this opinion are accurately delineated by Judge Fahy at page 630.⁸

III

A "permissible * * * decision" under Tribby v. Cameron⁹ is one which demonstrably takes account of "the relevant information." The principal purpose of limited judicial review of administrative action is to insure that the decision-makers have (1) reached a reasoned and not unreasonable decision, (2) by employing the proper criteria, and (3) without overlooking anything of substantial relevance. More than this the courts do not pretend to do, and probably are not competent to do. To do less would abandon the interests affected to the absolute power of administrative officials.

Not only the principle of judicial review, but the whole scheme of American government, reflects an institutionalized mistrust of any such unchecked and unbalanced power over essential liberties. That mistrust does not depend on an assumption of inveterate venality or incompetence on the part of men in power, be they Presidents, legislators, administrators, judges, or doctors. It is not doctors' nature, but human nature, which benefits from the prospect and the fact of supervision. Indeed, the limited scope of judicial review of hospital decisions necessarily assumes the good faith and professional expertise of the hospital staff. Judicial review is only a safety catch against the fallibility of the best of men; and not the least of its services is to spur them to double-check their own performance and provide them with a checklist by which they may readily do so.

The hearing below dealt almost exclusively with the single issue of appellant's potential dangerousness to others. The question, however, was not whether appellant was dangerous enough to require continued...