Duckett v. Solky

• Decision Date: 02 June 2022
• Docket Number: 357346
• Parties: ARTHUR DUCKETT, Plaintiff-Appellant, v. MARY C. SOLKY, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

ARTHUR DUCKETT, Plaintiff-Appellant,
v.
MARY C. SOLKY, Defendant-Appellee.

No. 357346

Court of Appeals of Michigan

June 2, 2022

Wayne Circuit Court LC No. 20-008865-NZ

Before: Borrello, P.J., and Shapiro and Hood, JJ.

HOOD, J.

Plaintiff Arthur Duckett was involuntarily hospitalized in 2004. In July 2017, Duckett was placed on authorized leave status, which entitled him to live outside of the hospital while receiving outpatient treatment and supervision. Defendant Mary Solky revoked Duckett's leave a few months later without affording him notice of his right to appeal her order. The questions before the Court are whether an involuntarily hospitalized person on authorized leave is entitled to due process of law after revocation of that leave, and if so, the nature and scope of the available remedies.

Michigan's Mental Health Code, MCL 330.1001 et seq., mandates that individuals on an authorized leave be afforded notice and an opportunity to appeal an order to return to the hospital. In conjunction with the corresponding Court Rule, MCR 5.743, the statute establishes a protected liberty interest in authorized leave status (ALS). We reverse the circuit court's contrary conclusion and remand for further proceedings consistent with this opinion.

I. BACKGROUND

Duckett's involuntary hospitalization originated with his plea of not guilty by reason of insanity (NGRI) following several stabbings Duckett committed in 2002. The circuit court accepted his plea and committed Duckett to the custody of the Michigan Department of Health and Human Services (MDHHS), Center for Forensic Psychiatry (CFP). The prosecution successfully moved to continue his involuntary hospitalization, thereby transferring jurisdiction from the circuit court to the probate court. Duckett's treatment continued at the Walter P. Reuther

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Psychiatric Hospital (WPRPH), a state hospital operating under the umbrella of MDHHS, where he has been committed since 2006.

From 2004 to 2017, the probate court granted petitions for continuing treatment orders, which continued Duckett's involuntary hospitalization for mental health treatment. As described in Section II, Duckett's continued hospitalization was subject to yearly review.

On July 12, 2017, Duckett was allowed to reside outside of WPRPH under an ALS contract. Under the terms of the contract, Duckett "agreed to comply with a series of conditions . . . for a period of five years in exchange for release from physical confinement in a State-operated psychiatric hospital." A week later, on July 19, 2017, the probate court entered an order for continuing mental health treatment, continuing Duckett's state-supervised treatment while allowing him to live outside of the state hospital.

On September 27, 2017, MDHHS revoked Duckett's ALS contract and reinterned Duckett at WPRPH. Solky concedes that after MDHHS revoked Duckett's ALS contract she did not provide him with notice of his right to appeal his rehospitalization, despite the clear language of MCL 330.1408 and MCR 5.743 requiring her to have done so.

Three and a half months after his return to WPRPH, Duckett filed a petition for discharge from his continuing mental health treatment, challenging a periodic review report's conclusion that he continued to be a person requiring continuing involuntary mental health treatment. In his petition, Duckett requested discharge from involuntary hospitalization. The parties agree that the petition was not an appeal of the decision to revoke his ALS contract.

At a subsequent probate court hearing on Duckett's petition, the court ordered that Duckett's involuntary mental health treatment continue, finding "clear and convincing evidence that [Duckett] has a mental illness and continues to require treatment."

Duckett filed this action under 42 USC § 1983 three months after the probate court hearing. His amended complaint alleges that Solky denied him procedural due process by failing to provide notice of his right to appeal his rehospitalization and to have a hearing.

The amended complaint avers Solky violated MCL 330.1408(3) and MCR 5.743 while acting in both an individual and an official capacity, thereby depriving him of a conditional liberty interest. Duckett's amended complaint analogized his due process right following revocation of authorized leave to the due process right of parolees to challenge revocation of parole, citing Morrissey v Brewer, 408 U.S. 471; 92 S.Ct. 2593; 33 L.Ed.2d 484 (1972). The relief requested included compensatory and exemplary damages, an injunction, and attorney fees.

Solky moved for summary disposition under MCR 2.116(C)(7) and (C)(10) in lieu of an answer. Solky argued that the Eleventh Amendment and sovereign immunity barred Duckett's official capacity claims and that Duckett's individual capacity claims were moot given the order for Duckett's continued hospitalization. Solky additionally contended that the probate court hearing on Duckett's petition for discharge afforded Duckett due process, no ongoing illegal practices warranted an injunction, and that Duckett had suffered no harm warranting compensatory or exemplary damages.

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Duckett responded that he had a statutory right to contest the revocation of his authorized leave status, and that Solky's failure to provide notice of his opportunity to appeal the revocation, or a hearing, violated due process. Distinct from the statutorily required hearing, Duckett argued that he was entitled to a hearing offering the same procedural protections described in Morrissey. The issues were not moot, he insisted, because the probate court had addressed whether he continued to qualify as a person requiring treatment, not whether revocation of his ALS was appropriate. Even absent compensatory damages, he concluded, he could still pursue nominal damages stemming from the denial of his due process rights.

The circuit court granted Solky's motion for summary disposition, first finding that the Eleventh Amendment barred recovery of damages against state officials under 42 USC 1983 "at least where the claim is based on actions taken in the Defendant's official capacity." Further, the court ruled, the probate hearing allowed Duckett to challenge his reinternment with appointed counsel, rendering his request for injunctive relief moot. Duckett now appeals.

II. AN OVERVIEW OF THE STATUTES GOVERNING INVOLUNTARY COMMITMENT PROCEDURES

We begin by reviewing the statutory framework applicable to involuntary hospitalization and not guilty by reason of insanity pleas before addressing the substance of Duckett's issues on appeal.

A. THE STATUTORY PROCEDURES REQUIRED FOR INVOLUNTARY HOSPITALIZATION FOLLOWING A FINDING OF NGRI

In Michigan, after a criminal defendant pleads not guilty by reason of insanity or is acquitted by reason of insanity, the trial court must commit the defendant to the custody of the CFP for an initial inpatient diagnostic period not exceeding 60 days. See MCL 330.2050(1). Following this initial diagnostic commitment, CFP is required to provide the trial court, prosecutor, and defense counsel a report and opinion addressing whether the individual qualifies as a "person requiring treatment." See MCL 330.2050(2) (providing the requirements for the report and opinion); see also MCL 330.1401(1) (defining "person requiring treatment" as a person having a mental illness that satisfies at least one of three criteria); MCL 330.1400(g) (defining "mental illness"). If the opinion confirms that the individual is a "person requiring treatment," the trial court may direct the prosecuting attorney to file a petition with the probate court for an order of hospitalization pursuant to MCL 330.1434. See MCL 330.2050(3) and (4).

If the prosecuting attorney files a petition pursuant to MCL 330.1434, a hearing must be "convened promptly, but not more than 7 days after the court's receipt" of "[a] petition for a determination that an individual is a person requiring treatment" MCL 330.1452. Before ordering a person to be involuntarily hospitalized or subject to mental health treatment, a probate court (or jury) must find by clear and convincing evidence that the individual is a "person requiring treatment." MCL 330.1465. If the probate court determines that the individual is a person requiring treatment, it must then enter an initial order of involuntary mental health treatment, limited in duration depending on the type of order entered. MCL 330.1472a(1). "Not less than 14 days before the expiration of an initial" order of involuntary mental health treatment, the hospital director, agency, or mental health professional supervising treatment must file a petition for a

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second order of involuntary mental health treatment if the treatment provider believes "the individual continues to be a person requiring treatment" and the individual "is likely to refuse treatment on a voluntary basis when the order expires." MCL 330.1473.

If a petition for a second order of involuntary mental health treatment is filed under MCL 330.1473, a hearing is conducted. MCL 330.1452. If the court finds that the individual continues to be a person requiring treatment, the court must...