Does I to III v. Dist. of Columbia

• Decision Date: 30 September 2011
• Docket Number: Civil Action No. 01–2398 (HHK).
• Parties: Jane DOES I THROUGH III, Plaintiffs, v. DISTRICT OF COLUMBIA, Defendant.
• Court: U.S. District Court — District of Columbia

815 F.Supp.2d 208

Jane DOES I THROUGH III, Plaintiffs,

v.DISTRICT OF COLUMBIA, Defendant.

Civil Action No. 01–2398 (HHK).

United States District Court, District of Columbia.

Sept. 30, 2011.

Harvey S. Williams, Washington, DC, Irvin V. Cantor, Herman Aubrey Ford, III, Cantor, Arkema, Robert A. Dybing, Thompson & McMullan, P.C., Richmond, VA, for Plaintiffs.

Robert C. Utiger, Andrew J. Saindon, DC Attorney General, Ellen A. Efros, Office Of The Attorney General, Richard S. Love, District of Columbia Office of The Attorney General Office of The Solicitor General, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

HENRY H. KENNEDY, JR., District Judge.

Plaintiffs are three mentally disabled adult women who have received habilitation services from the District of Columbia.¹ They bring this action under 42 U.S.C. § 1983, alleging that the District consented to the performance of non-emergency surgical procedures on plaintiffs without authority to do so.² Before the Court is plaintiffs' motion for leave to file a second amended complaint [Dkt. # 213]. Upon consideration of the motion, the opposition thereto, and the record of this case, the Court concludes that leave to file a second amended complaint should be granted.

I. BACKGROUND

A. Factual Background

Plaintiffs were institutionalized in District of Columbia facilities beginning in the 1960s. They have received habilitation services from the District of Columbia through its Mental Retardation and Developmental Disabilities Administration (now known as the Department of Disability Services, but still commonly referred to as the MRDDA). Am. Compl. [Dkt. # 91] ¶ 6.

In 1984, Jane Doe I became pregnant. She had previously given birth to a healthy boy without developmental disabilities. According to plaintiffs, District of Columbia officials requested that she have an abortion, but Jane Doe I refused. Nevertheless, those officials gave their consent for the abortion, which was performed. Plaintiffs assert that the officials neither consulted with Jane Doe I's legal representative nor obtained authorization from a court. Id. at ¶¶ 14–17.

Jane Doe II was diagnosed in 1994 with exotropia, a condition in which one eye deviates from the other. According to plaintiffs, District of Columbia officials gave their consent for an elective surgical procedure which was performed without consulting Jane Doe II's mother, who was her daughter's court-appointed advocate. Id. at ¶¶ 18–20.

Jane Doe III became pregnant in 1978 and, according to plaintiffs, desired to carry her pregnancy to term. Plaintiffs contend that District of Columbia officials gave consent for an abortion, which was performed, without consulting Jane Doe III's legal representative and without obtaining authorization from a court. Id. at ¶¶ 21–23.

B. District of Columbia Law

The Mentally Retarded Citizens Constitutional Rights and Dignity Act of 1978, D.C. Law 2–137, codified as amended at D.C.Code § 7–1301.02 et seq. , took effect on March 3, 1979. Among other things, the law promised that mentally disabled residents of the District would enjoy their full rights as citizens and would receive habilitation services “suited to the needs of the person” and “humanely provided with full respect for the person's dignity and personal integrity.” D.C.Code § 7–1301.02(a)(1)–(2). The law also declared that those receiving care from District of Columbia habilitation facilities would not “be sterilized by any employee of a facility or by any other person acting at the direction of, or under the authorization of, the Director or any other employee of a facility.” D.C.Code § 7–1305.08.

The Health–Care Decisions Act of 1988, D.C. Law 7–189, codified as amended at D.C.Code § 21–2201 et seq. , took effect on March 16, 1989. The law established a procedure for the certification of incapacity to make health care decisions and provided a list of persons authorized to make those decisions for someone certified as incompetent. D.C.Code § 21–2210. The Act also provided that those it empowered to make health care decisions for the incompetent could not “consent to an abortion, sterilization or psycho-surgery, unless authorized by a court.” D.C.Code § 21–2211(1).³

C. Procedural Background

In 2005, this court held that the District of Columbia's policy of consenting to elective surgeries on behalf of incompetent MRDDA consumers without considering their wishes was unlawful. The Court enjoined the District from consenting to elective procedures under the policy then in force, and required that the District attempt to ascertain the “known wishes of the patient,” D.C.Code § 21–2210(b), before consenting to elective surgery on her behalf. The order required the District to make documented reasonable efforts to communicate with the patient regarding her wishes, and to make a good faith determination of the best interests of the patient when her wishes could not be ascertained. Order of Apr. 29, 2005 [Dkt. # 112] at 2. This court then granted partial summary judgment to plaintiffs, holding that the District of Columbia was liable pursuant to 42 U.S.C. § 1983 for violating the liberty interests established by the Health–Care Decisions Act of 1988. Does I through III v. District of Columbia, 232 F.R.D. 18, 33 (D.D.C.2005); see also Does I through III v. District of Columbia, 374 F.Supp.2d 107, 116 n. 12 (D.D.C.2005) (“A due process liberty interest may arise from two sources—the Due Process Clause of the Fifth Amendment to the United States Constitution, or state law.”) (citing Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)).

The Court of Appeals reversed this court's grant of partial summary judgment, vacated this court's injunction, and directed the entry of judgment for the District of Columbia with respect to plaintiffs' demand for a declaratory judgment. Doe ex rel. Tarlow v. District of Columbia, 489 F.3d 376, 384 (D.C.Cir.2007). The Court of Appeals held that the challenged consent policy complied with both District of Columbia law and the constitutional requirements of procedural and substantive due process. Id. The Court of Appeals further held that the MRDDA Administrator need not attempt to ascertain the wishes of those who lack the capacity to make health care decisions. Id. at 381–82. Because plaintiffs have never been able to make informed choices regarding their medical treatment, the Court of Appeals reasoned, their wishes on that subject are unknown and cannot be ascertained. Id. The Court of Appeals did not address plaintiffs' claims for damages stemming from their surgical procedures, which pre-dated the challenged consent policy. Id. at 384.

On cross-motions for summary judgment after remand from the Court of Appeals, this court granted partial summary judgment to the District of Columbia on the question of whether the MRDDA Administrator was authorized to consent to elective medical procedures during the period at issue in this suit. Does I through III v. District of Columbia, 593 F.Supp.2d 115, 125 (D.D.C.2009). Relying on the law of the case doctrine, this court ruled that “the Court of Appeals decided that the District of Columbia was legally authorized to consent to MRDDA consumers' surgeries” at all times relevant to this suit, rejecting plaintiffs' argument that the Administrator did not gain that authority until 1998. Id. However, the Court denied summary judgment to either side on “the question of whether the District of Columbia violated MRDDA consumers' liberty interests in bodily integrity by failing to obtain consent from, or ignoring or overriding the wishes of, those persons authorized by District of Columbia law to consent on MRDDA consumers' behalf.” Id. The Court ordered the parties to submit a joint proposal for further proceedings. Order of Jan. 7, 2009, 593 F.Supp.2d 115 (D.D.C.2009) [Dkt. # 183]. Unable to agree, the parties submitted separate proposals [Dkt. 206, 207], and this motion followed.

II. ANALYSIS

Under Federal Rule of Civil Procedure 15, a party must obtain either “the opposing party's written consent or the court's leave” to amend a pleading a second time. Fed.R.Civ.P. 15(a)(2). “The decision to grant or deny leave to amend ... is vested in the sound discretion of the trial court,” Doe v. McMillan, 566 F.2d 713, 720 (D.C.Cir.1977), which should “determine the propriety of amendment on a case by case basis, using a generous standard.” Harris v. Sec'y, U.S. Dep't of Veterans Affairs, 126 F.3d 339, 344 (D.C.Cir.1997). “Leave to amend a complaint should be freely given in the absence of undue delay, bad faith, undue prejudice to the opposing party, repeated failure to cure deficiencies, or futility.” Richardson v. United States, 193 F.3d 545, 548–49 (D.C.Cir.1999) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)).

Plaintiffs would amend their complaint to allege that all three surgeries at issue here were batteries, and that they all violated the Mentally Retarded Citizens Constitutional Rights and Dignity Act of 1978. Pls.' Mem. in Supp. of Mot. for Leave to File Second Am. Compl. (“Pls.' Mem. in Supp.”) [Dkt. # 213] at 3–5. Plaintiffs would also argue that the abortions performed on Jane Does I and III were unauthorized because, they assert, only a court can properly consent to the performance of an abortion on an incompetent woman. Id. at 3–4. They would allege that the District of Columbia had a policy or custom of authorizing abortions without such an order. Pls.' Mot. for Leave to File Second Am. Compl., Ex. A (proposed “Second Am. Compl.”) [Dkt. # 213] at ¶ 25. Finally, plaintiffs would maintain, as they have throughout this suit, that Jane Doe II's surgery was performed under an illegal policy or custom of failing to obtain consent from or ignoring the wishes of family members and guardians. Pls.' Mem. in Supp. at 2. They would continue to seek certification of the putative class of incompetent individuals...