Disability Rights N.J., Inc. v. Velez

• Decision Date: 27 September 2013
• Docket Number: Civ. No. 10–3950(DRD).
• Citation: 974 F.Supp.2d 705
• Parties: DISABILITY RIGHTS NEW JERSEY, INC., Plaintiff, v. Jennifer VELEZ, in her official capacity as Commissioner, State of New Jersey Department of Human Services, and State of New Jersey, Defendants.
• Court: U.S. District Court — District of New Jersey

974 F.Supp.2d 705

DISABILITY RIGHTS NEW JERSEY, INC., Plaintiff,

v.Jennifer VELEZ, in her official capacity as Commissioner, State of New Jersey Department of Human Services, and State of New Jersey, Defendants.

Civ. No. 10–3950(DRD).

United States District Court,

D. New Jersey.

Sept. 27, 2013.

William Emmett Dwyer, Esq., Disability Rights New Jersey, Inc., Trenton, NJ, Alexandra P. Kolod, Esq., Kirland & Ellis LLP, New York, NY, for Plaintiff.

Susan K. O'Connor, Esq., Hoagland, Longo, Moran, Dunst & Doukas, New Brunswick, NJ, for Defendant.

OPINION

DEBEVOISE, Senior District Judge.

The Court is presented with cross-motions for summary judgment filed by Plaintiff Disability Rights New Jersey Inc (“DRNJ”) and by Defendants the State of New Jersey and Jennifer Velez in her official capacity as Commissioner of the New Jersey Department of Human Services (“DHS”). DHS is an umbrella organization for several state divisions, including the Division of Mental Health and Addiction Services (DMHAS). DMHAS is the state mental health authority that oversees the State's public system of adult mental health services, including the four state psychiatric hospitals at issue.

DRNJ represents psychiatric patients who either are or will be treated at the state's psychiatric hospitals. DRNJ argues that the state's policy which governs the involuntary administration of psychotropic drugs in non-emergency circumstances, Administrative Bulletin 5:04B, is both constitutionally infirm and routinely violated in New Jersey hospitals. As a result, DRNJ contends that psychiatric patients are forced to consume psychotropic drugs against their will in violation of the Federal Constitution, the Americans with Disabilities Act, 42 U.S.C. 12131 et seq. (hereinafter “ADA”), and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794(a) (hereinafter “RA”).

For the reasons set forth below, the Court finds in favor of DRNJ's motion for summary judgment with respect to the Fourteenth Amendment due process challenge on substantive and procedural grounds as to the CEPP status patients only. As to the remaining class, the Court finds in favor of Defendants with respect to the substantive and procedural challenge, and the related First Amendment, right to counsel, and access to the courts claims. Next, the Court finds that A.B. 5:04B is in violation of the ADA and the RA with respect to the CEPP status patients only, and not the remaining class. In short, the Court finds that A.B. 5:04B violates the substantive and procedural due process rights of CEPP patients, and is discriminatory in violation of the ADA and the RA with regard to these individuals. However, A.B. 5:04B is valid as to the remaining class. The motions for summary judgment are therefore granted in part and denied in part.

I. BACKGROUND

A. Procedural History

DRNJ filed its original complaint on August 3, 2010. The complaint set forth seven counts against Jennifer Velez, in her official capacity as Commissioner of the State of New Jersey Department of Human Services and Poonam Alaigh, in her official capacity as Commissioner of the State of New Jersey Department of Health and Human Services ¹ for violations of: the Due Process Clause of the Fourteenth Amendment (count one); the right of access to the Courts (count two); violations of the right to counsel (count three); the Equal Protection Clause of the Fourteenth Amendment (count four); the First Amendment (count five); the ADA (count six); and the RA (count seven).

On July 20, 2011, 2011 WL 2976849, this Court denied DHS's motion to dismiss this action in part, finding that “[t]here can be no doubt that all patients in New Jersey, including patients with severe mental illness or injury, have the right to participate meaningfully in the course of their treatment, to be free from unnecessary or unwanted medication, and to have their rights to personal autonomy and bodily integrity respected by agents of the state.” (July 20, 2011 Op. at 5.) The Court found that DRNJ had presented “a panoply of serious allegations concerning the practice of psychiatric medicine in New Jersey hospitals” including practices that plainly violate existing New Jersey law. (Id. at 9.) Consequently, the Court refused to dismiss DHS from this case. However, the claims against Defendant O'Dowd in her official capacity as Acting Commissioner of the DHSS were dismissed in their entirety because the operative statute, the Health Care Facilities Planning Act of 1971, N.J. S.A. 26:2H–1 et seq., does not establish DHSS's authority to promulgate specific procedures concerning the administration of psychotropic drugs, and the Court reasoned that it would have been inappropriate to order it to do so.

Notably, the Court granted dismissal of count four, DRNJ's equal protection claim. DRNJ argued that under A.B. 5:04, its constituents are afforded fewer legal protections than other patients with respect to their medical treatment. In particular, DRNJ noted that prisoners with mental illness and individuals with developmental disabilities in addition to mental illness are entitled to hearings before they may be forcibly medicated. DRNJ contended that this disparate treatment of like-individuals was without rational basis and irreconcilable with the equal protection clause of the Fourteenth Amendment. ( See id. at 27.) The Court found that any differential treatment between psychiatric patients and prisoners withstood rational basis scrutiny. For example, the Court reasoned that the state might grant prisoners additional opportunities to challenge treatment in recognition of a limited ability of the prison psychiatric system to internally review and prevent mistakes, and that the state could reasonably believe that hospitals, populated by doctors rather than guards and expressly non-punitive by nature, would be less in need of this oversight. ( Id. at 29–30.) Thus, the Court dismissed Plaintiff's equal protection claim. However, the Court denied the motion to dismiss the ADA and RA claims, finding that the analysis of discriminatory treatment under these Acts is different than the rational basis scrutiny pursuant to the Fourteenth Amendment.

DHS filed its answer on August 4, 2011. On August 25, 2011, DRNJ filed a motion to strike thirty-three of DHS's defenses, arguing them to be frivolous, irrelevant, and/or legally insufficient. The Court granted DRNJ's motion to strike, finding the defenses to be “boilerplate”, “highly repetitive and containing almost no factual specificity.” (See Sept. 23, 2011 Op. at 4, 2011 WL 4436550.) For example, the Court found with respect to the defenses related to damages, that “[c]ontrary to the ex-post justifications by Defendant, it is clear what happened here. Defendant's counsel appears to have carelessly copy-pasted boilerplate personal injury defenses into the answer despite their inapplicability.” ( Id. at 7.)

On February 15, 2012, DHS moved to vacate a Consent Order in an earlier case governing New Jersey's procedure for non-consensual administration of antipsychotic drugs by involuntarily-committed mentally ill patients. See Rennie v. Klein, 720 F.2d 266 (3d Cir.1983) (“Rennie Consent Order”). ² In support of its motion, DHS admitted that the involuntary medication procedures in place were undermined by a subsequent Supreme Court ruling in Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) and its progeny. In consideration of the unopposed motion, on March 19, 2012, the Court entered an order vacating the Rennie Consent Order. The Three-step Rennie procedure was thereafter replaced on June 4, 2012 with the policy that is now at issue.³

On March 23, 2012, the Court granted and denied in part a motion to file a First Amended Complaint. The only substantive difference from the original Complaint was the addition of the State of New Jersey as a party to the action on to two counts—count six, for violations of the ADA, and count seven for violations of the RA. The Court allowed for the addition of the State of New Jersey as a party on the ADA claim, but denied the motion on the RA claim due to futility.

Curiously, the Amended Complaint filed thereafter on March 27, 2012 repeats the same claims against Defendant Alaigh in her official capacity as Commissioner of DHSS, despite the prior substitution and dismissal of all claims brought against the appropriate officer of DHSS. Additionally, the Amended Complaint includes count four, for violation of the Equal Protection Clause of the Fourteenth Amendment, which was also dismissed pursuant to court order on July 20, 2011. The State of New Jersey was properly included as a party to count six, for violations of the ADA.

Thus, the outstanding claims and corresponding Defendants are as follows: violations of substantive and procedural due process pursuant to the Due Process Clause of the Fourteenth Amendment (count one); violations of the right of access to the Courts due to failure to require a judicial hearing and appointment of counsel (count two); violations of the right to counsel pursuant to the Due Process Clause of the Fourteenth Amendment (count three); violations of the First Amendment due to infringement of the right to freely communication and produce ideas (count five); violations of the Americans with Disabilities Act (count six); and violations of the Rehabilitation Act (count seven). All claims are lodged against Commissioner Velez. Additionally, count six includes the State of New Jersey. These remaining claims are the subject of the cross-motions for summary judgment currently before the Court.

B. Factual History

a. A.B. 5:04B

New Jersey State Hospitals are authorized to accept persons subject to involuntary patient commitment under N.J.S.A. 30:4–27.1 et seq. To be involuntarily committed, the patient must pose a dangerousness to self, others, or property, proven by clear and convincing evidence. After an order of temporary commitment, a...