Thiel v. Nelson

• Decision Date: 24 March 2006
• Docket Number: No. 05-C-715C.,05-C-715C.
• Citation: 422 F.Supp.2d 1024
• Parties: Dennis R. THIEL, Plaintiff, v. Helen NELSON and Steve Watters, Defendants. Steve Burgess Plaintiff, v. Helen Nelson and Steve Watters, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

Page 1024

422 F.Supp.2d 1024

Dennis R. THIEL, Plaintiff, v. Helen NELSON and Steve Watters, Defendants.

Steve Burgess Plaintiff, v. Helen Nelson and Steve Watters, Defendants.

No. 05-C-715C.

United States District Court, W.D. Wisconsin.

March 24, 2006.

Jody J. Schmelzer, Assistant Attorney General, Madison, WI, for Defendants.

OPINION and ORDER

CRABB, District Judge.

These are civil actions for injunctive and declaratory relief in which plaintiffs Dennis Thiel and Steve Burgess challenge a smoking ban enacted recently at the Sand Ridge Secure Treatment Center in Mauston, Wisconsin. Plaintiffs are involuntarily committed at Sand Ridge pursuant to Wisconsin's sexually violent persons statute, Wis. Stat. ch. 980. On December 7, 2005, defendants Helen Nelson and Steve Watters removed the actions to this court from the Circuit Court for Dane County, asserting jurisdiction under the federal question statute, 28 U.S.C. § 1331. Magistrate Judge Crocker consolidated the cases in a preliminary pre-trial conference order dated January 18, 2006.

Presently before the court are defendants' motion to dismiss and plaintiffs' motion to dismiss and remand. The two motions are premised on divergent views of plaintiffs' complaints. In their motion to dismiss, defendants contend that plaintiffs' complaints raise challenges to the smoking ban under the due process and equal protection clauses as well as Wisconsin's patient's rights statute, Wis. Stat. § 51.61. Defendants also construe the complaints to raise due process challenges to the treatment plaintiffs are receiving at Sand Ridge. They request dismissal of plaintiffs' constitutional claims with prejudice and ask the court to decline to exercise supplemental jurisdiction over the state law claims. Plaintiffs disagree with defendants' characterization of the complaints, although it is difficult to pin down their position. They argue that their only intent was to bring an action for administrative review of the smoking ban under Wisconsin's declaratory judgment statute, Wis. Stat. § 227.40.¹ Elsewhere in their briefs however, they acknowledge that they are challenging the smoking ban on constitutional grounds and under the patient's rights statute. They request that their cases be remanded to state court.

Although it may not have been plaintiffs' intent to raise constitutional challenges to the smoking ban, a fair reading of their complaint shows that constitutional claims are presented. Therefore, removal of this case was proper. Because neither the substance of the smoking ban nor the way it was implemented violates plaintiffs' rights under the due process and equal protection clauses, I will grant defendants' motion to dismiss those claims. In addition, I will grant defendants' motion to dismiss plaintiffs' claims that their conditions of confinement and treatment fall below constitutional minimums. Because no claims remain over which federal jurisdiction exists, I will decline to exercise supplemental jurisdiction over plaintiffs' state law claims and grant plaintiffs' motion to remand the cases to the Circuit Court for Dane County for proceedings with respect to those claims.

I draw the following facts from plaintiffs' complaints, which are identical in all material respects.

ALLEGATIONS OF FACT

Plaintiffs Dennis Thiel and Steve Burgess are involuntarily committed to the custody of the Wisconsin Department of Health and Family Services pursuant to Wisconsin's sexually violent persons statute, Wis. Stat. ch. 980. They are detained at the Sand Ridge Secure Treatment Center in Mauston, Wisconsin. Defendant Helen Nelson is Secretary of the Department of Health and Family Services. Defendant Steve Watters is Director of Sand Ridge, a mental health facility designed for the care and custody of ch. 980 patients. Sand Ridge was designed and built as a prison; it is the only mental health facility with a high voltage fence around it in the United States.

Patients at the facility who display unusual or aggressive behavior or who are under investigation are moved to the units on wing A. (Some patients have been charged with crimes for their aggressive and physical behavior at the facility.) Units on wings A and B have an extra set of security doors though which patients must pass to gain access to the rest of the facility. Normally, the security doors on wing B are left open during the daytime, while the doors on wing A are opened and closed when a patient or staff member leaves or enters.

Psychiatric care technicians (technicians) are the only staff assigned to a unit for supervision of patients. Each unit has two technicians assigned to it for each working shift. Technicians are supervised by psychiatric care supervisors (supervisors). Technicians are not required to have any education or experience in working with mental health patients. They receive psychiatric training from facility staff and outside contractors. In addition, they receive training in the Department of Corrections. Supervisors are not required to have clinical education or a clinical degree. One supervisor works on each unit for the first and second working shifts, although at times a supervisor will cover more than one unit. Unit managers receive the same security training as technicians and are not required to have any clinical education or a clinical degree. Their duties are primarily administrative and they do not interact much with patients.

Units A and B contain three offices that are shared by the unit manager, social worker, counselors and treatment providers. These individuals do not interact with patients on a daily basis; they process paperwork or provide group treatment in the treatment mall. No more than five licensed psychologists work full-time at the facility. Lloyd Sinclair, the Associate Treatment Director, and Nick Yachovich, the. Corrective Thinking Program Coordinator, are not licensed psychologists.

The Corrective Thinking Program focuses on identifying and correcting a patient's "problem areas." It provides treatment for patients who are rated medium or high on the psychopathy check list. The Conventional Program is a program for sex offenders. Patients in the program are pressured to take polygraph exams that probe their sexual histories and sexually assaultive behaviors. Patients are pressured also to take plethysmograph tests, which measure their sexual arousal patterns. Refusal to take these tests is considered a refusal of treatment; until a patient consents to the tests, no further treatment is provided. However, patients are given individual treatment to help them overcome objections they have to taking the tests. The facility does not provide anger management treatment.

When plaintiffs need to speak with clinical staff, they must put in a patient request. A technician initials the request and gives it to a supervisor, who answers the request by delivering a response to the patient personally or placing a response in the unit mail box. In a similar fashion, a patient who needs to speak with someone about a medical issue must complete a medical request form and place it in the medical request box. Medical requests are picked up once each day. Generally, responses to medical requests are delivered to patients the same day. From the time a patient's medical request is received, he may wait from one day to one month to see the requested individual.

Sand Ridge employs only one psychiatrist for all of the patients at the facility. Because of the large number of patients, the psychiatrist is unable to provide full psychiatric treatment for all of them.

When plaintiff Thiel arrived at Sand Ridge, he experienced a stress attack. He takes medication for high blood pressure, back pain and hip pain. Also, he takes medication to help him sleep. Plaintiff Burgess is diabetic; he takes Depakote, Zoloft, Trazadone and Atavin. Confinement at Sand Ridge is highly stressful at times.

In 2003, the Tobacco Control Board was transferred to the Wisconsin Department of Health and Family Services. On November 23, 2004, defendant Watters posted a notice in all of the units at Sand Ridge stating that respondent Nelson had decided that all buildings and property under the department's control would be smoke and tobacco free. At that time, smoking was permitted in the unit courtyards and outdoor recreation area. Smoking was prohibited indoors and while patients were working or in therapy. The smoking ban was to take effect on October 3, 2005, with an exemption for religious services. The Native American group at the facility smokes a ceremonial pipe, performs smudges and carries tobacco for ceremonies. Plaintiff Burgess's religious affiliation is Native American; he carries tobacco, performs smudges and smokes the ceremonial pipe each week during a talking circle. Plaintiff Thiel is Catholic; he has not been allowed to burn candles or incense as a form of religious celebration.

As part of the smoking ban, plaintiffs have received only a survey asking what their needs would be after implementation of the ban. Sand Ridge makes nicotine patches available to patients upon request. The Department of Health and Family Services continues to allow smoking at the Mendota Mental Health Institute. Because civil commitment under ch. 980 is for a potentially infinite period of time, Sand Ridge is the only place plaintiffs may ever be able to exercise their freedom of choice.

OPINION

In considering a motion to dismiss for failure to state a claim, the court must accept as true the well-pleaded factual allegations in the complaint, drawing all reasonable inferences in favor of the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 72, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Moranski v. General Motors Corp., 433 F.3d 537, 539 (7th Cir.2005). The court may dismiss a complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6) only if "`it appears beyond doubt that the plaintiff can prove no set of...