Neiberger v. Hawkins, Civ.A. 99-B-1120.

Decision Date12 November 1999
Docket NumberNo. Civ.A. 99-B-1120.,Civ.A. 99-B-1120.
Citation70 F.Supp.2d 1177
PartiesJames NEIBERGER, Danford Eldridge, Paul Gardner, and Terence Jacobs, Plaintiffs, v. Robert HAWKINS, individually and in his official capacity as Superintendent of the Colorado Mental Health Institute at Pueblo; Garry Toerber, individually and in his official capacity as Associate Manager for the Office of Direct Services of the Department of Human Services; Colorado Department of Human Services; and Colorado Mental Health Institute at Pueblo, Defendants.
CourtU.S. District Court — District of Colorado

Slyvia V. Kirk, Englewood, CO, David H. Miller, Miller Lane Killmer & Greisen LLP, Denver, CO, Kathleen Mullen, Law Office of Kathleen Mullen, P.C., Denver, CO, for plaintiffs.

Cathy Havener Greer, Pamela Skelton, Ritsema & Lyon, P.C., Denver, CO, for defendants.

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

In this action brought by patients of the Forensic Institute at the Colorado Mental Health Institute at Pueblo (the "CMHI-P"), Defendants, Robert Hawkins, Garry Toerber, the Colorado Department of Human Services (the "DHS"), and the CMHI-P (collectively "Defendants"), move to dismiss Plaintiffs' second amended complaint. Plaintiffs, James Neiberger, Danford Eldridge, Paul Gardner, and Terence Jacobs (collectively "Plaintiffs"), oppose this motion. The issues are adequately briefed and orally argued. For the reasons set forth below, I grant in part and deny in part Defendants' motion to dismiss. I hold the motion in abeyance as to Plaintiffs' Americans with Disabilities Act ("ADA") claim. Jurisdiction is proper in this Court pursuant to 28 U.S.C. §§ 1331, 1441, and 1443, original federal question jurisdiction and removal.

I.

Plaintiffs are patients in the CMHI-P pursuant to respective adjudications of not guilty by reason of insanity. C.R.S. § 16-8-105. They bring this action alleging a combination of hostile conditions and policies that prevent them from obtaining appropriate medical and psychiatric care. Defendant Robert Hawkins is the Superintendent of the CMHI-P. Plaintiffs allege that Mr. Hawkins, in his official capacity, is responsible for ensuring that the CMHI-P provides care and treatment consistent with statutory and constitutional standards. Plaintiffs further allege that Mr. Hawkins was personally aware of the inadequate care provided to patients at the CMHI-P. Defendant Garry Toerber is the Associate Manager for the Office of Direct Services of the DHS and is the Director of the Pueblo state psychiatric hospital. As the Director, Mr. Toerber is allegedly responsible for overseeing all aspects of the operations and is thus allegedly responsible for ensuring that patients at the CMHI-P receive proper medical and psychiatric treatment. Plaintiffs also allege that Mr. Toerber was personally aware of the inadequate conditions at the CMHI-P. The DHS is the state agency responsible for the administration of the state's psychiatric hospitals, including the CMHI-P.

Plaintiffs brought this action in the Colorado District Court for the City and County of Denver. Defendants removed to this Court based on federal question jurisdiction. 28 U.S.C. §§ 1331, 1441. Plaintiffs assert the following claims for relief:

(1) Violation of Colorado's Care and Treatment of the Mentally Ill Act, C.R.S. § 27-10-101;

(2) Violation of the Due Process Clause of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983;

(3) Violation of the ADA; and

(4) Negligence.

II.

Defendants do not specify the provisions of Rule 12 under which they move to dismiss Plaintiffs' claims. However, in light of their arguments, the only applicable provisions are Rules 12(b)(1) and 12(b)(6).

A motion to dismiss based on sovereign immunity is treated as a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). See King v. United States, 53 F.Supp.2d 1056, 1064 (D.Colo. 1999); see also Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916, 924 (Colo.1993) (immunity under the Colorado Governmental Immunity Act is a jurisdictional issue). Under Rule 12(b)(1), I have wide discretion to consider affidavits, documents, and even hold a limited evidentiary hearing in making appropriate factual findings on jurisdictional issues. See Wheeler v. Hurdman, 825 F.2d 257, 259 n. 5 (10th Cir.1987). In deciding whether sovereign immunity has been waived, I may receive any competent evidence pertaining to the motion, including evidence outside the pleadings, without converting it into a summary judgment motion. See Trinity Broadcasting, 848 P.2d at 924-25. Further, "[a]ny factual dispute upon which the existence of jurisdiction may turn is for the court alone, and not a jury to determine." Id. The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. See Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.1974). Therefore, Plaintiffs have the burden of showing that Defendants are not immune from suit. See Trinity, 848 P.2d at 925.

For purposes of considering Defendants' motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), I have not considered any evidence outside of the pleadings. See Sutton v. Utah State School for Deaf and Blind, 173 F.3d 1226, 1236 (10th Cir.1999). In evaluating a 12(b)(6) motion to dismiss,

all well-pleaded factual allegations in the amended complaint are accepted as true and viewed in the light most favorable to the nonmoving party.... "A 12(b)(6) motion should not be granted `unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" ... "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted."

Id. (internal citations omitted).

III.
A. Violation of Colorado's Care and Treatment of the Mentally Ill Act.

Plaintiffs' first claim is pursuant to the Care and Treatment of the Mentally Ill Act. C.R.S. § 27-10-101, et seq. ("Treatment Act"). In their second amended complaint, Plaintiffs allege that Defendants have substantially violated Plaintiffs' rights secured by the Treatment Act by, among other things: failing to provide individualized medical and psychological evaluations and treatment plans; failing to progress Plaintiffs to lesser-restrictive environments; failing to inform Plaintiffs of the risks and benefits of psychotropic medication; failing to follow required procedural safeguards for the administration of forced medication without consent; failing to provide Plaintiffs with a safe and therapeutic environment; retaliating against Plaintiffs' assertions of their rights; interfering with Plaintiffs' mail, right to counsel, and visitation; subjecting Plaintiffs to belittling and abusive treatments; and depriving Plaintiffs of basic human needs. (Complaint, ¶ 75). As a result of these alleged actions and omissions, Plaintiffs contend they have suffered immediate and irreparable injuries. Plaintiffs seek an injunction and compensatory damages.

Defendants move to dismiss this claim on several grounds. First, Defendants submit that I should decline jurisdiction over this claim due to the Colorado courts' continuing jurisdiction. Second, Defendants argue that Plaintiffs are not entitled to the Treatment Act's protections. Finally, in the alternative, Defendants move to dismiss Plaintiffs' claim to the extent it seeks damages.

1. Exercise of Jurisdiction

Plaintiffs were committed to the CMHI-P pursuant to Colorado criminal statutes. See, e.g., C.R.S. § 16-8-105(4) ("If the trier of fact finds the defendant not guilty by reason of insanity, the court shall commit the defendant to the custody of the department of human services until such time as he is found eligible for release...."). The Colorado Supreme Court has held that committing courts retain jurisdiction over claims by persons adjudicated "not guilty by reason of insanity" ("NGRI patients"):

We are satisfied that Colorado's statutory scheme for the automatic commitment of criminal defendants adjudicated not guilty by reason of insanity manifests a clear legislative intent to vest the committing court with subject matter jurisdiction to resolve questions relating to the treatment needs of the committed defendant and that such jurisdiction continues until such time as the defendant is unconditionally released from the order of commitment.

People v. Gilliland, 769 P.2d 477, 479-480 (Colo.1989) (en banc).

Because committing courts retain jurisdiction over questions relating to the treatment needs of NGRI patients, Defendants urge that I decline subject matter jurisdiction over this claim because the state court is the more appropriate forum. (Motion to Dismiss, p. 12). Defendants do not claim, however, that this Court lacks subject matter jurisdiction over this claim. Indeed, Defendants chose to remove all claims from state court here based on original federal question jurisdiction over Plaintiffs' ADA and § 1983 claims. In the Notice of Removal, Defendants concede, as they must, that state law claims are no impediment to removal, citing 28 U.S.C. § 1441(c) ("Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise nonremovable claims or causes of action, the entire case may be removed and the district court may determine all issues therein").

However, Defendants now suggest that I abstain from Plaintiffs' first claim for relief under Colorado's Treatment Act because the state forum is more appropriate. In Gilliland, the Colorado Supreme Court enforced continuing state jurisdiction in a suit involving a single defendant forced to take medication. Unlike Gilliland, this...

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