Minich v. Spencer

• Decision Date: 12 May 2016
• Docket Number: SUCV2015-00278
• Parties: Joanne Minich [1] et al. [2] v. Luis S. Spencer et al. [3] No. 133923
• Court: Massachusetts Superior Court

Joanne Minich ^[1] et al. ^[2] v. Luis S. Spencer et al. ^[3]

No. 133923

No. SUCV2015-00278

Superior Court of Massachusetts, Suffolk

May 12, 2016

Filed May 17, 2016

MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION TO DISMISS

Paul D. Wilson, Justice of the Superior Court.

The plaintiffs, severely mentally ill individuals, allege that they were secluded and restrained unnecessarily and for prolonged periods at Bridgewater State Hospital (" Bridgewater") where they were involuntarily civilly committed. Claiming that the seclusion and restraint violated their state and federal rights, they commenced this lawsuit against the Commonwealth, the Department of Correction (" DOC"), former DOC Commissioner Luis S. Spencer (" Spencer"), and former Bridgewater Superintendent Robert Murphy (" Murphy") (collectively, " defendants")^[4] seeking damages for violations of 42 U.S.C. § 1983 (Count I), G.L.c. 123, § 21 (Count II), and the Americans with Disabilities Act (" ADA") and the Rehabilitation Act (Count IV); and seeking declaratory judgments for violations of G.L.c. 123, § 21, and the Massachusetts Declaration of Rights (Count III) and for violations of the ADA and the Rehabilitation Act (Count V). Before me is the defendants' motion to dismiss. For the following reasons, the defendants' motion is ALLOWED in part and DENIED in part.

PROCEDURAL HISTORY

In March 2014, the plaintiffs^[5] filed a prior lawsuit in Norfolk County^[6] against the current defendants, as well as the Massachusetts Partnership for Correctional Healthcare, LLC, and Marcia Fowler in her capacity as commissioner of the Massachusetts Department of Mental Health (" DMH") (" Norfolk Action"). See Amended Complaint, pars. 53-59 (discussing Norfolk Action). In the Norfolk Action, the plaintiffs alleged that the illegal restraint and seclusion at Bridgewater violated G.L.c. 123 § 21; violated Article 10 of the Massachusetts Declaration of Rights; violated G.L.c. 12, § 11I; violated 42 U.S.C. § 1983; and breached the 1987 settlement agreement concerning seclusion and restraint at Bridgewater between two Bridgewater patients and the Secretary of Health and Human Services, the Commissioner of Correction, and the Superintendent of Bridgewater. See Amended Complaint, pars. 22-24 (discussing 1987 agreement).

The parties sealed the Norfolk Action in December 2014 pursuant to a Settlement Agreement. See Amended Complaint, par. 59 (discussing Settlement Agreement). The Settlement Agreement " represent[ed] a full and fair resolution of the claims for relief alleged in" the plaintiffs' amended complaint, Settlement Agreement, par. 103; and " address[ed] issues concerning the use of Seclusion and Restraint at [Bridgewater], including Plaintiffs' allegations about the purported prolonged, inappropriate and/or non-emergency placement of Patients in Seclusion and/or Restraint in violation of G.L.c. 123, § 21, and Plaintiffs' inadequate medical and mental health care claims under the state and federal constitutions related solely to the use of Seclusion and Restraint." Settlement Agreement, par. 38. The parties agreed that certain matters were outside the scope of the Settlement Agreement and therefore not settled but are still open:

The Parties disagree as to whether the following practices at [Bridgewater] constitute Restraint under G.L.c. 123 but agree not to attempt to resolve their differences in this Action or Agreement. Therefore, for the purposes of this Agreement solely, Restraint shall not refer to: (a) the temporary use of mechanical devices with a Patient for safety or security purposes when the Patient is being transported within [Bridgewater]; or (b) the temporary use of mechanical devices with a Patient for safety or security purposes to prevent injury to Patients as a result of any medical or physical impairment.

The Parties disagree as to whether the following practices at [Bridgewater] constitute Seclusion under G.L.c. 123 but agree not to attempt to resolve their differences in this Action or Agreement. Therefore, for the purposes of this Agreement solely, Seclusion shall not refer to: (a) placement of a Patient in his room on a housing unit for the night at the regular hour of sleep or after 6:30 p.m. upon the Patient's request; (b) temporary placement of a Patient alone in a room for not longer than ninety (90) minutes to await medical assessment and/or treatment; (c) voluntary temporary placement of a Patient in a room designated by the Superintendent as a Quiet Room; or (d) temporary placement of a Patient in a room for patient and inmate counts and movement. Likewise, the Parties disagree as to whether Seclusion or Restraint orders can be renewed only upon personal examination by a physician or psychiatrist after a Patient has been in Seclusion or Restraint for more than six (6) hours.

Settlement Agreement, pars. 40-41. The parties also agreed that:

Nothing in this Agreement shall constitute a waiver by any Plaintiff . . . of any individual claim against any Defendant in a court of competent jurisdiction for monetary damages or concerning matters outside the scope of this Agreements . . . Defendants agree that plaintiffs John Doe, Peter Minich, and Felipe Zomosa shall be able to file any claim for monetary damages in any court of competent jurisdiction after execution of this Agreement, subject to any applicable notice requirements. In any such action by these three Plaintiffs, Defendants shall not raise as a defense the failure of these three Plaintiffs to seek monetary damages in this [Norfolk] Action and Defendants shall waive the defenses of res judicata, issue preclusion, and collateral estoppel with regard to this [Norfolk] Action.

Settlement Agreement, par. 119.

This court (Wilson, J.) approved the Settlement Agreement on March 3, 2015.

BACKGROUND

For purposes of a motion to dismiss under Rule 12(b)(6), the court must " accept as true the allegations in the complaint and draw every reasonable inference in favor of the plaintiff." Curtis v. Herb Chambers I-95, Inc. 458 Mass. 674, 676, 940 N.E.2d 413 (2011).^[7]

Pursuant to G.L.c. 123, § 21 (the " Restraint Law"), Bridgewater patients can only be secluded or restrained " in cases of emergency, such as the occurrence of, or serious threat of, extreme violence, personal injury, or attempted suicide[, ]" G.L.c. 123, § 21, third par.; only physicians can authorize restraint lasting more than six hours, G.L.c. 123, § 21, seventh par.; and " no adult shall be restrained for more than six hours beyond which time an order may be renewed only upon personal examination by a physician." Id. ; Amended Complaint, par. 29. Bridgewater has also adopted regulations governing seclusion and restraint, 103 BSH § 651.00 et seq., which provide, among other things, that seclusion and restraint cannot " be used for punishment, convenience, discipline, or failure to take non-court-ordered medication[, ]" 103 BSH § 651.02(2); and set forth certain preliminary interventions for staff to take before secluding or restraining a patient. 103 BSH § 651.03; Amended Complaint, par. 28.

The " Intensive Treatment Unit" (" ITU") is the separate unit where Bridgewater places secluded and restrained patients. Amended Complaint, par. 33. The thirteen cells have solid steel doors, a window for observation, and a slot for meal delivery. Id. While inside, patients are denied exercise, adequate clean clothes, adequate showers, and sensory stimulation including reading materials, and access to visitors and telephone calls is restricted. Amended Complaint, pars. 2, 7, 33.

Patients at Bridgewater fall into four categories: mentally ill prisoners; individuals who have been found not guilty by reason of insanity; individuals undergoing criminal competency or responsibility evaluations; and individuals who have been found to be incompetent to stand trial or not criminally responsible and are civilly committed to Bridgewater for " care and treatment." Amended Complaint, pars. 183-84; see G.L.c. 123, § 15(b), § 16(b). Bridgewater makes no distinction among these categories. Amended Complaint, par. 186. The plaintiffs fall into the fourth category, which comprises the majority of Bridgewater patients. Amended Complaint, pars. 184-85.

Plaintiff Peter Minich (" Minich") has been diagnosed with schizophrenia. After being criminally charged, he was confined to Bridgewater from January 14, 2013, through June 26, 2014, first for a competency evaluation pursuant to G.L.c. 123, § 15(b), then, upon being deemed incompetent to stand trial, he was committed pursuant to G.L.c. 123, § 16(b). Amended Complaint, par. 60. While at Bridgewater, he spent over 6, 600 hours in seclusion^[8] and over 800 hours in restraint, ^[9] rates that are more than 1, 000 times the 2013 national average for psychiatric facilities. Amended Complaint, pars. 2, 68; see Amended Complaint, par. 102 (detailing Massachusetts Disabled Persons Protection Commission investigation concluding that Minich " was placed in seclusion and restraint on occasion when he was not presenting threatening behavior").

Plaintiff Felipe Zomosa (" Zomosa") has been diagnosed with schizophrenia and bipolar disorder. Amended Complaint, par 103. Zomosa was committed to Bridgewater pursuant to G.L.c. 123, § 15, following his alleged assault of a psychiatrist at another psychiatric hospital; after six months, his civil commitment was extended because of paranoid delusions. Amended Complaint, par. 103. Zomosa was at Bridgewater from April 24, 2013, to May 29, 2014. Amended Complaint, pars. 110, 131. Immediately upon his arrival in April 2013, Zomosa was placed in seclusion despite the lack of emergency situation. Amended Complaint, par. 110. During his first year at Bridgewater, Zomosa spent over 4,...