Terry ex rel. Terry v. Hill

• Decision Date: 06 May 2002
• Docket Number: No. 4:01CV458 SMR.,4:01CV458 SMR.
• Citation: 232 F.Supp.2d 934
• Parties: James M. TERRY, by and Through His Mother and Next Friend, Arbunes TERRY, and Arbunes Terry Plaintiffs v. Richard HILL, Deputy Director, Division of Mental Health Services, Arkansas Department of Human Services in his Official Capacity Defendant
• Court: U.S. District Court — Eastern District of Arkansas

Page 934

232 F.Supp.2d 934

James M. TERRY, by and Through His Mother and Next Friend, Arbunes TERRY, and Arbunes Terry Plaintiffs v. Richard HILL, Deputy Director, Division of Mental Health Services, Arkansas Department of Human Services in his Official Capacity Defendant

No. 4:01CV458 SMR.

United States District Court, E.D. Arkansas, Western Division.

May 6, 2002.

Bettina E. Brownstein, Wright, Lindsey & Jennings, Little Rock, AR, for Plaintiffs.

Frank J. Wills, III, Arkansas Judicial Discipline & Disability Com'n., Little ROck, AR, for Richard Hill.

David M. Fuqua, Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd., North Little Rock, AR, for Randy Johnson.

MEMORANDUM OPINION

REASONER, District Judge.

Introduction:

Plaintiffs filed this class action pursuant to 42 U.S.C. § 1983 alleging that Richard Hill, in his individual¹ and official capacity as Deputy Director, Division of Mental Health Services ("DMHS"), Department of Human Services ("DHS"), violated the rights of the serious mental health needs of Plaintiffs in violation of the Fourteenth Amendment to the United States Constitution.

The Class:

The Court entered an Order dated November 9, 2001, certifying the following class:

All persons charged with or under indictment for various criminal offenses who are suffering from mental illness, are confined as inmates in detention facilities in Arkansas, and who have either been ordered by the circuit courts in the counties where charges are pending to undergo an inpatient forensic mental evaluation at the Arkansas State Hospital or ordered by a court to be committed to the Arkansas State Hospital for treatment.

The State's Duty:

The Arkansas Constitution speaks of the State's duty toward the mentally ill. Art. 19, § 19 provides, "[I]t shall be the duty of the General Assembly to provide by law for the support of institutions for the education of the deaf and dumb and the blind, and also for the treatment of the insane." The Arkansas State Hospital ("ASH"), a division of the DHS, is the state facility that has responsibility for treating citizens committed to its care either by civil courts or by criminal courts for evaluation or treatment. There is no other entity, private or public, which is equipped or authorized to handle forensic² patients. The ASH's duty to provide evaluation and treatment to jail inmates arises from a comprehensive set of statutes enacted by the legislature: Ark.Code Ann. § 5-2-305 (Repl.1997) provides:

(a)(1) The [circuit] court, subject to the provisions of §§ 5-2-304 and 5-2-311, shall immediately suspend all further proceedings in the prosecution whenever:

(A) A defendant charged in circuit court files notice that he or she intends to rely upon the defense of mental disease or defect;

(B) There is reason to believe that the mental disease or defect of the defendant will or has become an issue in the cause;

(C) A defendant charged in circuit court files notice that he or she will put in issue his or her fitness to proceed; or

(D) There is reason to doubt the defendant's fitness to proceed...,

(b)(1) Upon suspension of further proceedings in the prosecution, the court shall enter an order:

(A) Directing that the defendant undergo examination and observation by one (1) or more qualified psychiatrists or qualified psychologists; or

(B) Appointing one (1) or more qualified psychiatrists not practicing within the Arkansas State Hospital to make an examination and report on the mental condition of the defendant; or

(C) Directing the Director of the Division of Mental Health Services of the Department of Human Services to determine who shall examine and report upon the mental condition of the defendant.

(2) The Director of the Division of Mental Health Services or the director's designee shall determine the location of the forensic evaluation.

(3) The examination shall be for a period not exceeding thirty (30) days, or such longer period as the director or the director's designee determines to be necessary for the purpose....

Under Ark.Code Ann. § 5-2-310 (Repl. 1997), circuit courts may commit a criminal defendant to the custody of the DHS for treatment until restoration of fitness to proceed. That statute provides:

(a) If the court determines that the defendant lacks fitness to proceed, the proceeding against him shall be suspended, and the court may commit him to the custody of the Director of the Department of Human Services for detention, care, and treatment until restoration of fitness to proceed. If, however, the court is satisfied that the defendant may be released without danger to himself or to the person or property of others, the court may order his release, which shall continue at the discretion of the court on conditions the court determines necessary. A copy of the report filed pursuant to § 5-2-305 shall be attached to the order of commitment or order of conditional release.

(b)(1) Within a reasonable period of time, but in any case within ten (10) months of a commitment pursuant to subsection (a) of this section, the Director of the Department of Human Services or his designee shall file with the committing court a written report indicating whether the defendant is fit to proceed, or if not whether:

(A) The defendant's mental disease or defect is of a nature precluding restoration of fitness to proceed; and

(B) The defendant presents a danger to himself or to the person or property of others.

(2)(A) The court must make a determination within one (1) year of a commitment pursuant to subsection (1) of this section.

(B) If the court, pursuant to the report of the Director of the Department of Human Services or his designee, or as a result of a hearing on the report, determines that the defendant is fit to proceed, prosecution in ordinary course may commence.

(C) If the defendant is unfit to proceed but does not present a danger to himself or to the person or property of others, the court may release the defendant on conditions it determines proper.

(D) If the defendant is unfit to proceed and presents a danger to himself, or the person or property of others, the court shall order the Director of the Department of Human Services to petition for an involuntary admission.

(c) When the court, on its own motion or upon application of the Director of the Department of Human Services, the prosecuting attorney, or the defendant, determines, after a hearing if one is requested, that the defendant has regained fitness to proceed, the criminal proceeding shall be resumed. If, however, the court is of the view that so much time has elapsed since the alleged commission of the offense in question that it would be unjust to resume the proceeding, the court may dismiss the charge.

In summary, if there is a reason to doubt a criminal defendant's fitness to proceed to trial, Section 305 allows the circuit court to suspend all proceedings and order the defendant to undergo a mental evaluation. "Section 305's" are, therefore, inmates ordered for evaluations. If the evaluation reflects a defendant lacks the fitness to proceed to trial, Section 310 allows the court to commit the defendant to the custody of the ASH for treatment until restoration of fitness to proceed. Thus, as to the issues in this litigation, "Section 305's" are inmates awaiting inpatient evaluation and "Section 310's" are inmates awaiting treatment.

The Existing Situation:

The ASH is licensed for 315 beds. A "licensed bed" means a bed that is staffed with nursing, psychiatric, and psychology services. Costs are $400.00 per day to staff a licensed bed. The testimony of Dr. Larry Miller, medical director of the ASH since January 1, 1995, and medical director for the DMHS, revealed the ASH has 186 beds of which 64 are allocated for forensic patients, both evaluations and treatment. Although licensed for 315 beds, Dr. Miller stated the ASH does not have the space, nor the funding, nor the personnel to fill more than 186 beds, plus possibly a few more.

There is no real delineation between beds reserved for inpatient evaluations and beds reserved for treatment but there is an attempt to have at least one or two beds available for evaluations at all times. There is a shortage of beds for evaluations due to the number of beds used for treatment. Of the 186 total beds, thirty two are allocated for adolescents, i.e. children between the ages of thirteen to seventeen. Sixty-four are allocated for forensic patients. The remaining ninety beds are the adult acute beds and are for patients who are there voluntarily or by civil commitment for treatment of mental illnesses. Plaintiffs' Exhibit 3 revealed that some of the acute care beds are being used for patients committed pursuant to Ark.Code Ann. 5-2-314. "Section 911"³ patients are those patients who have been found not guilty by reason of mental defect. They have either been committed to the ASH for treatment or have been remanded to the custody of the ASH after violating the conditions of their release. When there are no beds on the forensic side, these individuals are put in the ninety bed acute care area. The forensic units and the acute care non-forensic units are staffed basically the same in terms of psychiatrists, nurses and psychologists. However, the forensic units are in a separate building and are staffed with public safety officers. Dr. Miller testified that at least half of the sixty-four forensic beds are now occupied by Section 911's.

The Waiting List:

Due to the shortage of beds for forensic inmates, the ASH established a waiting list. The list contains the names of all of the potential inmate patients who have been court ordered to the ASH either for outpatient⁴ or inpatient evaluation (Section 305's) or treatment (Section 310's). Mr. Billy Burris, the assistant director for forensic services for the DMHS, is the keeper of the list. Mr. Burris sends weekly copies of the waiting list to Dr. Miller, Mr. Hill, the top administrative...