U.S. v. McAllister

• Decision Date: 25 June 1997
• Docket Number: Civil No. 493836-DSD/JMM.
• Citation: 969 F.Supp. 1200
• Parties: UNITED STATES of America, Plaintiff, v. Howard McALLISTER, Defendant.<SMALL><SUP>1</SUP></SMALL>
• Court: U.S. District Court — District of Minnesota

969 F.Supp. 1200

UNITED STATES of America, Plaintiff, v. Howard McALLISTER, Defendant.¹

Civil No. 493836-DSD/JMM.

United States District Court, D. Minnesota.

June 25, 1997.

COPYRIGHT MATERIAL OMITTED

Mary Trippler, Asst. U.S. Atty., Minneapolis, MN, for U.S.

Andrea George, U.S. Public Defenders Office, Minneapolis, MN, for respondent Howard McAllister.

ORDER

DOTY, District Judge.

This matter is before the court upon the government's objections to a Report and Recommendation of United States Magistrate Judge John M. Mason dated March 31, 1997.

Based upon a de novo review of the record herein, the court adopts the magistrate judge's thorough and well-reasoned Report and Recommendation dated March 31, 1997. Accordingly, IT IS HEREBY ORDERED that:

1. The determination of the mental health administrator at FMC-Rochester, authorizing the forcible medication of respondent is reversed and remanded for further proceedings, if warranted, consistent with this order.

2. Respondent's motions for a temporary stay of involuntary medication (Docket Nos. 13 & 14) are denied.

3. The order of January 29, 1997, granting respondent's motion for a temporary stay of involuntary medication (Docket No. 15), is vacated.

4. Respondent's motion for appointment of a health care guardian (Docket No. 19) is denied.

REPORT AND RECOMMENDATION PROCEDURAL HISTORY

MASON, United States Magistrate Judge.

The procedural history of this case is set out in the Report and Recommendation issued in this matter on March 10, 1997. [Docket No. 22]. For purposes of this Report and Recommendation, the following summary will suffice.

Respondent was retired from the Army in 1991 based on his psychiatric condition. He was indicted on August 16, 1991, following an incident on July 24, 1991 in his dormitory room at Walter Reed Army Medical Center, when authorities came to advise him that he would have to move. He was charged with shooting an army officer in the chest at close range, and shooting and killing a police officer.

On February 9, 1993, Respondent was found incompetent to stand trial pursuant to the provisions of 18 U.S.C. § 4241. On March 8, 1994, this Court found by clear and convincing evidence that Respondent suffers from a mental disease or defect and that his release would create a substantial risk of injury to another person or property, and therefore ordered that Respondent be committed to the custody of the Attorney General pursuant to 18 U.S.C. § 4246(d). [Docket No. 11].

On December 11, 1996, Respondent filed a motion seeking release from custody. [Docket No. 13]. On March 4, 1997, an evidentiary hearing was held at FMC-Rochester. Mary Trippler, Esq., appeared on behalf of the United States; Andrea George, Esq., appeared on behalf of Respondent, who was personally present. Following that hearing, in a separate Report and Recommendation, this Court concluded that Respondent should not be discharged from FMC-Rochester, because he had not established by a preponderance of the evidence that he had recovered from his mental disease or defect to such an extent that his release — with or without conditions — would no longer create a substantial risk to society. See 18 U.S.C. § 4246(e)(1)-(2). It was therefore recommended on March 10, 1997 that Respondent's Motion for Review of Commitment Order pursuant to 18 U.S.C. § 4247(h) be denied. [Docket No. 22]. Ruling on Respondent's other requested relief was reserved. No appeal was taken, and the Court's Report and Recommendation of March 10, 1997 was adopted by District Judge David S. Doty on March 27, 1997. [Docket No. 24].

In 1996, Respondent's treating clinicians at FMC-Rochester concluded that he should be administered psychotropic drugs. He objected and invoked his rights under the applicable regulations, Administrative Safeguards for Psychiatric Treatment and Medication, 28 C.F.R. §§ 549.40-.43. The last appeal in that process is to the institution mental health division administrator, who determined that the drugs could be forcibly administered to the inmate. Respondent seeks judicial review of that decision.

Now before the Court are Respondent's Motions for a Temporary Stay of Involuntary Medication. [Docket Nos. 13 & 14]. No hearing was scheduled by Respondent when his Motion was originally served [Docket No. 13], and no response was filed by the Government. On January 28, 1997, Respondent renewed his Motion. [Docket No. 14]. On January 29, 1997, this Court ordered that Respondent not be forcibly medicated pending "further Order of this Court," based upon the assertion in Respondent's moving papers that "the last time he received psychotropic medication, it resulted in his near death, causing failure of a vital organ,"² and the absence of any response by the Government. [Docket No. 15].

The Order of January 29, 1997 was in error because a United States Magistrate Judge, while having the authority to issue a Report and Recommendation, lacks the power to issue such an Order. See 28 U.S.C. § 636(b)(1)(A)-(B). This Court also erred because it failed to require the Government to respond to the Motion prior to issuance of the Order. At the evidentiary hearing on March 4, 1997, it was established that counsel for Respondent was mistaken in alleging that administration of psychotropic medication in the past had damaged Respondent's health. Accordingly, that Order should be vacated.

For the reasons hereinafter stated, it is recommended that the District Court conclude that it does have jurisdiction to review the decision of the mental health administrator at this time, and that acting within its appropriate scope of review, the District Court should reverse the decision of the mental health administrator which permitted the forcible administration of psychotropic drugs to this inmate. If warranted medically, his treating psychiatrist on remand may take steps to provide Respondent with psychotropic drugs in compliance with 28 C.F.R. § 549.43.

FINDINGS OF FACT/REPORT

I. Respondent Has a "Liberty Interest" and a Due Process Right To Avoid Involuntary Medication By Psychotropic Drugs

The propriety of forcibly medicating federal inmates is governed by the principles set forth in Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990), and by regulations adopted by the Bureau of Prisons, 28 C.F.R. §§ 549.40-43. In Harper, the Supreme Court concluded that a person had a right to refuse psychotropic drugs based upon the Due Process Clause of the United States Constitution, and that this right was also created by a Washington statute. Harper, 494 U.S. at 221-22, 110 S.Ct. at 1036-37. The Court concluded that the constitutional Due Process right did not extend beyond the rights, or the "liberty interest," created by the Washington statute. Id. The Harper decision extended the logic of Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980), which held that the involuntary transfer of a prisoner to a mental hospital implicates a liberty interest protected by the Constitution's Due Process Clause.

The Harper case specifically addressed the substantive findings which must be made, as well as the procedural protections which must be provided to an inmate, before that inmate may be forcibly medicated with psychotropic drugs. "[T]he substantive issue is what factual circumstances must exist before the State may administer antipsychotic drugs to the prisoner against his will; the procedural issue is whether the State's nonjudicial mechanisms used to determine the facts in a particular case are sufficient." Harper, 494 U.S. at 220, 110 S.Ct. at 1035-36.

Harper rejected a Due Process challenge to a prison policy codified by Washington statute, which is very similar to the federal regulations under review in this case. The Washington regulations permitted an inmate to be treated with psychotropic drugs against his or her wishes if the inmate was mentally ill and posed a "likelihood of serious harm" to himself, others, or their property. Harper, 494 U.S. at 215, 110 S.Ct. at 1033.

The Supreme Court concluded in Harper that there was "little doubt as to both the legitimacy and the importance of the governmental interest presented here.... There are few cases in which the State's interest in combating the danger posed by a person to both himself and others is greater than in a prison environment, which, `by definition,' is made up of persons with `a demonstrated proclivity for antisocial criminal, and often violent, conduct.'" Id. at 225, 110 S.Ct. at 1038 (citations omitted). The Supreme Court found that "[p]rison administrators have not only an interest in ensuring the safety of prison staffs and administrative personnel, but also the duty to take reasonable measures for the prisoners' own safety." Id. at 225, 110 S.Ct. at 1039. As the Harper Court ruled: "Where an inmate's mental disability is the root cause of the threat he poses to the inmate population, the State's interest in decreasing the danger to others necessarily encompasses an interest in providing him with medical treatment for his illness." Id. at 225-26, 110 S.Ct. at 1039.

At the same time, the Court noted that the regulations limited involuntary administration of these drugs to narrow circumstances. "By permitting a psychiatrist to treat an inmate with antipsychotic drugs against his wishes only if he is found to be (1) mentally ill and (2) gravely disabled or dangerous, the Policy creates a justifiable expectation on the part of the inmate that the drugs will not be administered unless those conditions exist." Id. at 221, 110 S.Ct. at 1036. It found that the State's policy "is a rational means of furthering the State's legitimate objectives," emphasizing that the policy's "exclusive application is to inmates who are mentally ill and who, as a result of their illness, are gravely disabled or represent a significant danger to themselves or others." Id. at 226, 110 S.Ct. at 1039. "[G]iven the...