George v. La. Dep't of Pub. Safety & Corr., CIVIL ACTION No. 3:14-00338-JWD-EWD

CourtUnited States District Courts. 5th Circuit. Middle District of Louisiana
Docket NumberCIVIL ACTION No. 3:14-00338-JWD-EWD
Decision Date23 June 2016




June 23, 2016



Before the Court is the Motion for Summary Judgment ("Defendants' MSJ"), (Doc. 74), filed by nine legal persons—the Louisiana Department of Public Safety and Corrections ("DPSC"); Mr. James LeBlanc ("LeBlanc"), in his capacity as Secretary for DPSC; Mr. Whalen Gibbs ("Gibbs"), Assistant Secretary for DPSC; Mr. Gerald Starks ("Starks"), Director of the DPSC's Division of Probation and Parole ("Probation and Parole"); Mr. Scott Tubbs ("Tubbs"), an agent with Probation and Parole; Ms. Kathy Kliebert ("Kliebert"), in her capacity as Secretary for the Louisiana Department of Health and Hospitals ("DHH");1 DHH; Mr. Eric Brady ("Brady"), a District Forensic Coordinator ("DFC") for DHH; and Dr. Charles P. Vosburg ("Vosburg"), a consulting psychologist for DHH (collectively, "Defendants")—and the Plaintiff's Motion for Partial Summary Judgment ("Plaintiff's MSJ"), (Doc. 76), filed by Mr. Trussell George, Jr. ("George" or "Plaintiff") by and through his Guardian Ad Litem, Ms. Letitica Walker ("Walker"). Defendants' MSJ is supported by a separately docketed

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memorandum ("Defendants' Memorandum"), (Doc. 81); Plaintiff has done the same with his own memo ("Plaintiff's Memorandum"), (Doc. 82). Defendants have countered Plaintiff's MSJ with Defendants' Memorandum in Opposition to Plaintiff's Motion for Partial Summary Judgment ("Defendants' Opposition"), (Doc. 89), and Defendants' Response to Plaintiff's Statement of Undisputed Facts ("Defendants' Response"), (Doc. 94). To these two motions, Plaintiff has replied with the Plaintiff's Reply to Defendants' Opposition to Summary Judgment ("Plaintiff's Reply"). (Doc. 96.) Plaintiff has addressed Defendants' MSJ with the Plaintiff's Opposition to Defendants' Motion for Summary Judgment ("Plaintiff's Opposition"), (Doc. 91), to which Defendants have replied with the Reply Brief in Support of Defendants' Motion for Summary Judgment ("Defendants; Reply"), (Doc. 98).

In this suit, the reach of one federal constitutional provision—the Due Process Clause of the United States Constitution's Fourteenth Amendment—and two related federal statutes—the Americans with Disabilities Act of 1990 ("ADA"), as later amended, and Section 504 of the Rehabilitation Act of 19732—are at issue. In his dispositive filing, Plaintiff has asked this Court to declare that two related state laws—Articles 658 and 899 of the Louisiana Code of Criminal Procedure3—pursuant to which he was incarcerated are unconstitutional as applied to persons similarly situated. In their motion, Defendants maintain no reasonable doubt can be raised about the applicability of their every defense to and the legal weakness of Plaintiff's three discrete claims. In essence, Defendants ask for a dispositive ruling as to every fact-specific defense asserted in their multiple filings, and Plaintiff demands that a state law and a state practice,

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similar to many, be deemed unconstitutional. For the Defendants and Plaintiff (collectively, "Parties"), the law and the facts appear crystal clear.

Having weighed the Parties' arguments, this Court disagrees. As the Parties' lengthy filings suggest, a highly fact-specific analysis is required for every one of Defendants' asserted shields. Moreover, no uncontested principle of law firmly establishes or clearly forbids liability based on this case's particular facts. For purposes of Federal Rule of Civil Procedure 56,4 this Court must determine whether material issues of fact are in dispute; when it does so in this case, too many questions remain unanswered for any one of Defendants' defenses to be adjudicated at this juncture. As courts have observed, the reasonableness of a certain course of conduct and the inadequacy of a proposed accommodation, so pivotal to one party's case and another's defense, require determinations for which a jury is empaneled and which only it can definitively answer.

Meanwhile, akin in language and structure to other state laws and a federal statute declared constitutional by a multitude of courts, Articles 658 and 899 cannot be found to be facially unconstitutional. It is possible that Plaintiff was subjected to an unconstitutional application of these articles. However, on their face, their constitutionality cannot be questioned based on precedent's overwhelming weight. For these reasons, as more fully explained below, the Plaintiff's MSJ and the Defendants' MSJ (collectively, "Dispositive Motions") must fail.5

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Diagnosed with "schizophrenia, bipolar disorder, Psychosis NOS, and significant intellectual and development disability," (Doc. 42 at 3, 11), Plaintiff was found Not Guilty by Reason of Insanity ("NGRI") to a charge of possession of a weapon by a felon. (Doc. 103 ¶ 1 at 4; Doc. 103-2 ¶ 1 at 1; Doc. 76-21 at 2; Doc. 42 at 11.) Treated for these disabilities since the age of twelve, he had previously been convicted of criminal trespass and possession of a schedule II substance. (Doc. 1 at 9; Doc. 42 at 11.) Upon his conviction, as required by law, on December 15, 2008, the Nineteenth Judicial District Court in East Baton Rouge, Louisiana, placed him on conditional release for a period of five years. (Doc. 103 ¶ 2 at 4; Doc. 103-2 ¶ 3 at 1-2; Doc. 74-3 at 1; Doc. 76-21 at 2-3; Doc. 42 at 12.) The conditions totaled eight: (1) residence at Progressive Group Home ("PGH") in Baton Rouge; (2) attendance at a mental health clinic in Baton Rouge and compliance with treatment recommendations; (3) reporting to the local probation office within twenty-four hours of release from jail; (4) subjection to monitoring services provided by DHH's Community Forensic Services Program ("CFS"); (5) consent for release of information from medical providers to agencies to report on a regular basis to the District Forensic Coordinator or State Probation Officer; (6) refraining from consumption of alcohol or illicit drugs and from frequenting places where consumption commonly occurs; (7) that providers notify the District Forensic Coordinator ("DFC") and/or State Probation Officer of any positive drug screens; and (8) refrain from possession of any weapons. (Doc. 103-2 ¶ 4 at 2; Doc. 74-3 at 1-2; Doc. 42 at 12.) Commonly authorized for persons adjudicated NGRI, these conditions were not unusually harsh or particularly unique. (See, e.g., Doc. 103 ¶ 7 at 5; Doc. 103-2 ¶ 13 at 4.)

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Following the verdict of NGRI, Plaintiff was placed under the supervision of Probation and Parole and CFS. (Doc. 103 ¶ 5 at 4; Doc. 103-2 ¶ 10 at 3-4; Doc. 76-21 at 3; Doc. 1 at 9.) From December 2008 to May 2014, with certain notable exceptions at the heart of this case, Plaintiff resided in PGH. (Doc. 103 ¶ 4 at 4, 103-2 ¶ 6 at 3.) These supervising agencies contacted and worked with supervisees. (Doc. 103 ¶ 7 at 5; Doc. 103-2 ¶ 13 at 4.) Tubbs was assigned as Plaintiff's probation officer and monitored his conditional release. (Doc. 103-2 ¶ 18 at 5; Doc. 74-3 at 2; Doc. 76-21 at 3.) Brady is one of DHH's DFCs and had been assigned to assist Plaintiff and Tubbs. (Doc. 103 ¶ 14 at 6; Doc. 103-2 ¶ 24 at 6.) Vosburg is a consultant to CFS, (Doc. 103 ¶ 16 at 6; Doc. 103-2 ¶ 29 at 7), and was responsible for providing mental health services of DHH to individuals on conditional release and at the Eastern Louisiana Mental Health System ("ELMHS") in Jackson, Louisiana, and to provide recommendations as to placement and treatment, (Doc. 103-2 ¶ 30 at 7), Starks served as the Director of Probation and Parole; Gibbs served as his immediate superior. (Doc. 42 at 3-4.) As such, by virtue of this state's statutory scheme, see, e.g., LA. CODE CRIM. PROC. art. 658, and Plaintiff's multiple incarcerations and inpatient treatment at various facilities, (Doc. 42 at 13-16), every Defendant was involved, whether directly (i.e. Tubbs, Brady, and Vosburg) or indirectly (i.e. LeBlanc, Kliebert/Gee, and Gibbs), with Plaintiff's case beginning on December 15, 2008. (See, e.g., Doc. 42 at 3-6.)

On June 10, 2013, Tubbs allegedly prepared a letter to the state district court about Plaintiff's verbally aggressive behavior with staff at PGH and requested the court set a review date to address expiration of the conditional release. (Doc. 74-3 at 3.) For an unknown reason, no court date was ever set. (Id.) In time, though he was still at PGH, Plaintiff's misbehavior

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escalated.6 (Id.; see also, e.g., Doc. 42 at 13-14.) About six months prior to the end of his conditional discharge term, George was hospitalized and deprived of his needed medication. (Doc. 1 at 11; Doc. 42 at 13.) As a consequence of this deprivation, in July of 2013, Plaintiff apparently had an unusually extreme series of outbursts, each of which was reported to Tubbs. (Doc. 103-2 ¶ 33 at 7-8; Doc. 76-21 at 3; Doc. 1 at 11.) Aware of these "verbal outbursts and threatening behavior," (Doc. 1 at 11), Tubbs and Brady arrested Plaintiff and confined him in East Baton Rouge Parish Prison ("EBRP") on July 29, 2013. (Doc. 103-2 ¶ 35 at 8; Doc. 74-3 at 2; Doc. 76-21 at 3-4.)

The Parties' descriptions of subsequent events diverge. Plaintiff alleges that he was not charged with any crime during or after this incarceration and that Tubbs failed to request a court hearing for two weeks following incarceration. (Doc. 103-2 ¶¶ 41-44 at 12; Doc. 1 at 11.) Conversely, Defendant maintains that Tubbs notified the district court by telephone on the day of the arrest and, on August 12, 2013, wrote a letter to the state district court outlining Plaintiff's behavior, and filed a Detainer Notification, Affidavit of Probable Cause, and a Motion for Hearing to Revoke Probation. (Doc. 74-3 at 2-3.)

On August 23, 2013, Plaintiff was released. (Doc. 103-2 ¶...

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