Case 3:14-cv-00338-JWD-RLB Document 1 05/28/14 Page 1 of 18

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA
BATON ROUGE DIVISION

___________________________________

*

TRUSSELL GEORGE

*

*

PLAINTIFF

*

*

*

VS.

*

*

LOUISIANA DEPARTMENT OF PUBLIC *

SAFETY AND CORRECTIONS; JAMES *

M. LEBLANC, Secretary of the Louisiana *

Department of Public Safety and

*

Corrections, in his official capacity;

*

WHALEN GIBBS, Assistant Secretary of *

the Louisiana Department of Public Safety *

and Corrections, in his official and

*

individual capacities; GERALD STARKS, *

Director of the Division of Probation and *

Parole, in his official and individual

*

capacities; and SCOTT TUBBS, Probation *

and Parole Agent, in his official and

*

individual capacities.

*

*

DEFENDANTS

*

___________________________________*

CIVIL ACTION NO.____________ SECTION ____________ JUDGE____________
MAGISTRATE JUDGE____________

COMPLAINT

I. INTRODUCTION

1. Plaintiff, Trussell George, is a person with a mental illness who was placed in the

community on conditional release following a finding that he was Not Guilty by Reason of

Insanity (NGRI) to a criminal offense. He brings this civil rights action under 42 U.S.C. § 1983

and federal statutes barring discrimination on the basis of disability seeking monetary damages, a

declaratory judgment, and injunctive relief to enjoin Defendants’ policies, practices, and

procedures, executed under color of state law, that caused him to be incarcerated in a correctional

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facility in Louisiana solely because he was alleged to have violated a term of his conditional release. Plaintiff contends that Defendants’ policies, practices, and procedures, which caused him to be arrested and incarcerated for almost a month, violated his rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and subjected him to intentional discrimination in violation of Section 504 of the Rehabilitation Act of 1973 (“Section 504”) and Title II of the Americans with Disabilities Act of 1990 (“ADA”).
II. JURISDICTION 2. This Court has federal question jurisdiction under 28 U.S.C. §§1331 and 1343, in that this is an action arising under the Fourteenth Amendment to the United States Constitution, the ADA, and Section 504. 3. Venue is appropriate in this court under 28 U.S.C. §1391(b)(2) since the Defendants reside in this district. III. PARTIES 4. Plaintiff TRUSSELL GEORGE is a 36-year-old man diagnosed with mental illness and a significant intellectual and developmental disability. He resides at the Stern Community Group Home located at 15626 Confederate Ave., Baton Rouge, Louisiana. He has received treatment for mental illness since the age of 12. Mr. George’s mental health diagnoses include Schizophrenia, Bipolar Disorder, and Psychosis NOS. He is currently on conditional release under the supervision of the Division of Probation and Parole of the Louisiana Department of Safety and Corrections and the Community Forensic Coordinators of the Louisiana Department of Health and Hospitals, having been found NGRI to a charge of possession of a weapon by a felon. 5. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS is the state agency responsible for monitoring and providing services to persons placed on
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conditional release or probation. The Division of Probation and Parole, which supervises Mr. George’s conditional release, is located within the Department. The Department receives federal financial assistance and is a public entity as defined by 42 U.S.C. § 12131(1) (B).
6. Defendant JAMES M. LEBLANC is Secretary of the Louisiana Department of Public Safety and Corrections. Pursuant to La. R.S. 36:403, he is responsible for the administration, control, and operation of the functions, programs, and affairs of the Department. He is also responsible for, among other things, operating a probation and parole system, in accordance with the law. La. R.S. 36:401(B)(3). He is being sued in his official capacity only.
7. Defendant WHALEN GIBBS is the Assistant Secretary of the Louisiana Department of Public Safety and Corrections. As such, he directs the operations of the Louisiana Division of Probation and Parole. Pursuant to La. R.S. 15:574.11(A), the Division of Probation and Parole provides for the investigation and supervision of adjudicated adult offenders. Also, pursuant to La. Code Crim. P. 658(B)(1), the division is charged with supervising individuals who have been placed on conditional release following a finding of NGRI. Whalen Gibbs is being sued in his official and individual capacities.
8. Defendant GERALD STARKS is the Director of the Louisiana Division of Probation and Parole. As such, he assists in the administration, development, and implementation of policies of the Division of Probation and Parole. Gerald Starks is being sued in his official and individual capacities.
9. Defendant SCOTT TUBBS is an employee of the Louisiana Division of Probation and Parole, acting under the direction and supervision of Defendants Leblanc, Gibbs, and Starks. Mr. Tubbs has responsibility for monitoring individuals placed on conditional discharge and implementing the policies and procedures of the Division of Probation and Parole. On information and belief, he is a decision-maker regarding whether conditionally discharged
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individuals whom he supervises are arrested and incarcerated. Scott Tubbs is being sued in his official and individual capacities.
IV. STATUTORY SCHEME 10. La. R.S. 14:14 states that an individual charged with a criminal offense is exempt from criminal responsibility for his behavior when “the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question.” 11. La. R.S. 28:2(20) defines a mentally ill person as “any person with a psychiatric disorder which has substantial adverse effects on his ability to function and who requires care and treatment.” 12. When the defendant enters a plea of not guilty and NGRI, the court may appoint a Sanity Commission, as provided in La. Code Crim. P. art. 644, to examine the defendant to determine whether he or she was “insane” at the time of the offense. La. Code Crim. P. arts. 650– 652. 13. A finding of NGRI means that the defendant has committed the acts that constitute the crime; however, the defense has proven by a preponderance of the evidence that the defendant was insane at the time the acts were committed and thus cannot be held legally responsible. La. Code Crim. P. art. 651. 14. La. Code Crim. P. art. 654 provides that if the defendant is found NGRI in a noncapital case, the court shall remand him to the parish jail or to a private mental institution approved by the court and promptly hold a hearing to determine whether her or she can be released. When a verdict of NGRI is returned in a capital case, the court shall commit the defendant to a state or private mental institution for care, custody, and treatment.
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15. Under the United States Constitution, an acquittee’s liberty may be curtailed only upon a finding that he is both dangerous and mentally ill. However, implicit in the NGRI acquittal is a finding that the defendant is mentally ill. Therefore, at the initial hearing following a NGRI finding, the only issue before the court in determining whether the acquittee should be released or committed, is whether the acquittee is dangerous.
16. Under Louisiana’s statutory scheme, after a contradictory hearing, and considering the Sanity Commission’s findings, the court may order the individual’s release or may place him on conditional release. To place the insanity acquittee on conditional release, the court must find that:
(1) Based on the factors which the court shall consider pursuant to Article 657, he does not need inpatient hospitalization but needs outpatient treatment, supervision, and monitoring to prevent his condition from deteriorating to a degree that he would likely become dangerous to self and others. (2) Appropriate outpatient treatment, supervision, and monitoring are reasonably available. (3) There is significant reason to believe that the insanity acquittee, if conditionally released, would comply with the conditions specified. (4) Conditional release will not present an undue risk of danger to others or self, as defined in R.S. 28:2(3) and (4). La. Code Crim. P. art. 657.1. 17. If the court determines that the defendant cannot be released without danger to others or to himself, the court shall order him committed to a proper state mental institution or to a private mental institution approved by the court for custody, care, and treatment. La. Code Crim. P. art. 654.
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18. Even if a defendant has been committed under La. Code Crim. P. art. 654 as a result of having been found dangerous and presumed mentally ill based on the finding of NGRI, the acquittee may later apply for discharge or conditional release.
19. The insanity acquittee or the superintendent of the facility in which the he is being held may petition the review panel for discharge. If the review panel determines that the acquittee is not a danger to himself or others, it can recommend to the court that he be discharged conditionally or unconditionally or placed on probation.
20. Upon this recommendation or upon an acquittee’s petition, the court may hold a contradictory hearing, La. Code Crim. P. art. 655(A), and order that the acquittee be conditionally released for a “fixed or an indeterminate period.” La. Code Crim. P. art. 657.
21. In ordering a conditional release, the court “shall subject a conditionally released insanity acquittee to such orders and conditions it deems will best meet the acquittee's need for treatment, supervision, and monitoring and will best serve the interests of justice and society.” La. Code Crim. P. art. 657.1(B).
22. Typically, the conditional release orders impose restrictions and requirements, such as compliance with treatment, signing release of information forms, or refraining from the use of alcohol, that do not in and of themselves constitute criminal conduct, even if violated.
23. When ordered, a conditional release must extend at least one year but not more than five, although it can be extended after five years in one-year increments for good cause shown at a yearly contradictory hearing. La. Code Crim. P. art. 657.2.
24. The insanity acquittee on conditional release is supervised by the Division of Probation and Parole of the Louisiana Department of Public Safety and Corrections.
25. In addition, the Community Forensic Services (CFS) program of the Department of Health and Human Services, through its District Forensic Coordinators (also known as
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“conditional release program coordinators”), is responsible for the community treatment and monitoring of individuals placed in the community on conditional release after being found NGRI. See La. Code Crim. P. 658(B).
26. Pursuant to La. Code Crim. P. art. 658(B)(1), if the division of probation and parole alleges that the acquittee violated or is about to violate a condition of his conditional release, he may be arrested and detained in a correctional facility under the provisions of La. Code Crim. P. art. 899, which applies to those who have been convicted of a crime and placed on probation.
27. The court must be notified of violations and receive a recommendation from the conditional release program coordinator as to whether the conditional discharge should be revoked or the insanity acquittee recommitted. La. Code Crim. P. art. 658(B)(5).
28. Pursuant to La. Code Crim. P. art. 658(B)(6), a court, on its own motion or that of the district attorney or probation officer, can order the acquittee arrested and incarcerated in order to determine whether the acquittee violated a term of his conditional discharge.
29. Upon receiving a report and recommendation pursuant to La. Code Crim. P. art. 658(B)(5), the court must “immediately” hold a hearing or transfer the case to the parish of commitment, if different from that of the arrest, at which place the hearing should be held “as soon as possible.” La. Code Crim. P. art. 658(B)(6).
30. If the court determines that there has been a violation of a term of the conditional release or that the acquittee was about to violate the conditions of release, it may do any of the following:
(a) Reprimand and warn the probationer. (b) Order that supervision be intensified. (c) Modify or add additional conditions to the probation.
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(d) Revoke the probation and recommit the probationer to a state mental institution, subject to consideration for discharge or release on probation only after one year has elapsed from the date of revocation and in accordance with the procedure prescribed in Articles 655 through 657 for a first application and hearing. La. Code Crim. P. art. 658(C). 31. If an acquittee violates the terms of conditional release, there are options under Louisiana law other than arrest and incarceration. If a person on conditional release or otherwise probated under the aforementioned code provisions is in need of acute, i.e. short-term, hospitalization and is not charged with a new criminal offense, he may be voluntarily admitted pursuant to La. R.S. 28:52 or admitted by emergency certificate pursuant to La. R.S. 28:53 to the Feliciana Forensic Facility or to another suitable treatment facility, with subsequent notice to the court. La. Code Crim. P. art. 658(B)(4). 32. The court can completely discharge an acquittee from conditional release “after the expiration of one year in a supervised conditional release program only on recommendation of the director of the division of probation and parole or the administrator of the conditional release program or on other proper evidence of expected outpatient compliance with any continued treatment recommendations, and after a contradictory hearing with the district attorney.” La. Code Crim. P. art. 658(D). The court may also grant an application for discharge with no probation period. La. Code Crim. P. art. 654. V. STATEMENT OF FACTS 33. In 1997 and 1999, respectively, Mr. George was allowed to plead guilty, despite his mental illness and significant cognitive disabilities, to charges of criminal trespass and possession of a schedule II substance.
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34. In 2008, based upon his prior convictions of criminal trespass and possession of a schedule II substance, Mr. George was charged with possession of a firearm by a felon.
35. Following his arraignment, the court initially referred his case to a Sanity Commission to determine whether he was competent to stand trial.
36. The Sanity Commission found that Mr. George was not competent to stand trial. 37. The recommendation of the Sanity Commission was not adopted by the court. Instead, his case was again referred to the Sanity Commission, this time to determine whether he was NGRI. 38. In response, the Sanity Commission recommended that Mr. George was NGRI. 39. On December 15, 2008, following a finding that Mr. George was NGRI to a charge of possession of a firearm by a felon, the court ordered that he be conditionally released pursuant to La. C. Crim. P. art. 657.1, for a period of five years, provided he receive adequate outpatient treatment, supervision, and monitoring. 40. In ordering Mr. George’s conditional release, the court established, among other things, the following conditions:
a) That he reside at Progressive Group Home, 1334 Frances Harriet Drive, Baton Rouge, Louisiana. b) That he attend the local mental health clinic in Baton Rouge, Louisiana, and follow the treatment recommendations prescribed by his treating physician, as well as comply and cooperate with sessions of counseling and/or treatment, oral and/or injectable medications as ordered by the attending physician. c) That he report to the local probation office within twenty-four (24) hours of release from jail, excluding non-business days. d) That he be subject to the outpatient tracking/monitoring services to be provided by the Community Forensic Services Program of the Department of Health and Hospitals.
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e) That he sign all consent for release of information forms and agencies involved in the medical/psychiatric care of the defendant shall report on a regular basis to the District Forensic Coordinator or State Probation Officer, who were authorized to have access to progress notes, attendance sheets, medication order sheets, and pertinent medical, psychiatric, psychological, and neurological consultations. f) That he refrain from the consumption of alcohol and all illicit drugs and from frequenting places where alcohol/illicit drug sales and consumption occur. g) That the Aftercare Provider notify the District Forensic Coordinator and/or State Probation Officer of any positive drug screens or problems related to treatment and/or behavior problems. 41. Although the location of the group home has changed since 2008, Mr. George has continuously resided in a group home setting as required by his conditional release order. 42. The group homes he has resided in are operated by Progressive Health Care Providers (PHP) and are Intermediate Care Facilities for People with Developmental Disabilities (“ICF-DD”). ICF-DD is one of a number of residential services options operated under the auspices of Louisiana’s Department of Health and Hospitals’ Developmental Disabilities Services System. See La. R.S. 28:451.1 et seq. As is typical of many group homes, approximately five other individuals, all of whom have a developmental disability and many of whom have mental illnesses, reside in the PHP facilities with Mr. George. The daily operations of these group homes are run by paid staff and all of its residents must be in active treatment. 43. During the five years that Mr. George resided in the PHP Group Home, he received an array of mental health services, including a day activities program and a Behavioral Support Plan to address behaviors that are a manifestation of his disability. Mr. George’s medication regimen has consisted of Risperdal injections every two weeks, Klonopin, Risperdal, Depakote, Trazodone, and Cogentin.
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44. According to his Behavioral Support Plan, due to his mental illness, Mr. George on some occasions engages in verbal aggression and non-compliance within the Group Home and the day program he attends during the week. His Behavioral Support Plan notes that on occasion, he may engage in outbursts and “threatening” episodes when his medication is not correct.
45. The behaviors that Mr. George manifests are typical of behaviors exhibited by many other men with mental illness and developmental disabilities residing in the close quarters of a group home.
46. Six months prior to the end of his conditional discharge term, Mr. George was hospitalized and deprived of his needed medication regimen.
47. As a consequence of not having his medication, Mr. George allegedly engaged in verbal outbursts and threatening behavior, which included yelling at a staff member that he “had better get me a hamburger” and telling another resident at the Group Home that he was going to kill him. These statements were reported to Scott Tubbs, the Probation and Parole Officer, who monitors Mr. George’s conditional discharge.
48. At the request of Mr. Tubbs, employees of Mr. George’s Day Program drove him to the Probation Officer’s office, where he was arrested.
49. Mr. George was consequently incarcerated from July 29, 2013 to August 23, 2013 at the East Baton Rouge Parish Prison on the basis of the alleged violation of his conditional discharge.
50. No criminal charges were ever filed against Mr. George for any behavior that occurred on or before July 29, 2013.
51. Mr. Tubbs knew, or should have known, of Mr. George’s disabilities and his medication regimen.
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52. While incarcerated, Mr. George was deprived of his medication and, as a result, became very nervous and paranoid.
53. Mr. George was not provided with an opportunity to post bail, to have an attorney appointed for him, or to be read his rights. At no time during his incarceration was Mr. George notified of the charges against him or how long he would be held. Mr. George was able to have visitors, but he was unaware of this fact until just before he was released.
54. During most of his incarceration, Mr. George was isolated and placed in lockdown for “mental reasons,” which meant that he only had 15 minutes to leave his cell to take a shower, had no exercise time, and was restricted in his use of the canteen and in his ability to receive reading material.
55. Mr. George remains on conditional release and continues to exhibit behaviors related to his mental illness. Therefore, he is at substantial risk of future incarceration for breaching conditions of his release.
56. The primary purpose for incarcerating individuals in Louisiana correctional facilities is punishment. Such facilities do not have the capacity to provide the mental health treatment to individuals found NGRI.
57. The Department of Public Safety and Corrections Defendants, as a matter of policy, practice, and procedure, arrest and incarcerate individuals placed on conditional release following a NGRI determination for merely violating a condition of their release.
58. Only persons with mental illness in Louisiana are intentionally subjected to punishment by incarceration in correctional facilities in the absence of pending criminal charges or a conviction of a criminal offense.
59. Defendants, at all times relevant to this complaint, acted under color of state law.
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60. Defendants, at all times relevant to this complaint, have acted and continue to act with deliberate indifference to Plaintiff’s liberty interests.
61. Defendants intentionally discriminate against persons found NGRI on the basis of their mental illness by confining them, or causing them to be confined, in Louisiana correctional facilities where they are subjected to punishment and unable to access appropriate mental health services.
62. Defendants, at all times relevant to this complaint, knowingly and intentionally violated Plaintiffs’ constitutional and federal statutory rights.
63. As a direct and proximate result of the foregoing, Plaintiff has been deprived of his liberty by incarceration in a Louisiana correctional facility and has suffered significant irreparable damage to his mental health.
64. As a direct and proximate result of Defendants’ policies, practices, and procedures, Plaintiff, who is still on conditional release, is in significant jeopardy of again being subjected to irreparable harm by being incarcerated in a correctional facility and deprived of his mental health treatment and services.
VI. CAUSES OF ACTION A. VIOLATION OF SUBSTANTIVE DUE PROCESS 65. Under the Due Process Clause to the United States Constitution, only individuals who have been properly charged with or convicted of a crime may be punished by incarceration in prison or jail. Jones v. United States, 463 U.S. 354, 369 (1983). 66. “[D]ue process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed." Jackson v. Indiana, 406 U.S. 715, 738 (1972). 67. For insanity acquittees, the purpose of commitment is to provide treatment of
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their mental illness in a manner that is not punitive, and to protect society from dangerous behavior that may result from that mental illness.
68. For insanity acquittees, when either dangerousness or mental illness ceases to exist, the State has no legitimate interest in commitment.
69. Defendants’ policies, practices and procedures, which cause individuals with mental illness who have been found NGRI and able to be released on specified conditions without danger to themselves or others, to be confined in correctional facilities for the sole reason that they are alleged to have violated a condition of their release, violates their rights under the Due Process Clause to the United States Constitution.
70. La. Code Crim. P. art. 658 (B) and La. Code Crim. P. art. 899 are unconstitutional on their face to the extent that they authorize state officials to arrest and incarcerate persons found NGRI and placed on conditional release merely because they are alleged to have violated a condition of their release.
71. As set forth in this Complaint, Defendants’ actions have violated, and in the absence of injunctive relief are again likely to violate, Plaintiff’s rights under the Due Process Clause to the United States Constitution.
B. VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT 72. As a qualified person with disabilities, Plaintiff is entitled to the protections and benefits of Title II of the Americans with Disabilities Act, which provides that "no qualified individual with a disability shall, by reason of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity." 42 U.S.C. § 12132. 73. Regulations implementing the ADA prohibit a public entity from providing any aid, benefit, or service, directly or through contractual licensing, or other arrangements that (i)
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Deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service; (ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others; (iii) Provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others; and (iv) Provide different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others. 28 C.F.R. § 35.130(b)(1)(i-iv).
74. The ADA's implementing regulations further provide that "a public entity may not, directly or through contractual or other arrangements, utilize criteria or other methods of administration: (i) that have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability….” 28 C.F.R. § 35.130(b)(3).
75. La. Code Crim. P. art. 658 (B) and La. Code Crim. P. art. 899, on their face, violate the ADA and are contrary to the Supremacy Clause of the United States Constitution to the extent that they authorize state officials to arrest and incarcerate persons found NGRI and placed on conditional release merely because they are alleged to have violated a condition of their release.
76. Defendants’ policies, practices and procedures, which have caused, and in the absence of injunctive relief are likely to cause, Plaintiff to be confined in a correctional facility for the sole reason that he allegedly violated a condition of his conditional release, violate Title II of the ADA.
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C. VIOLATIONS OF SECTION 504 OF THE REHABILITATION ACT 77. Section 504 of the Rehabilitation Act states that "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of his or her disability, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance . . .." 29 U.S.C. § 794(a). 78. Defendants’ policies, practices and procedures, which cause individuals with mental illness who have been found NGRI to be confined in state correctional facilities following their commitment to a mental health facility or solely because they are alleged to have violated a condition of their discharge, denies them the opportunity to effectively participate in or benefit from mental health services and subjects them to punishment on the basis of their disability. 79. Section 504's regulations also prohibit recipients of federal financial assistance from "utiliz[ing] criteria or methods of administration ... (i) [t]hat have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap …." 45 C.F.R. § 84.4(b)(4); 28 C.F.R. § 41.51(b)(3)(I). 80. Defendants are utilizing criteria and methods of administration that subject persons with mental illness, such as Plaintiff, to discrimination on the basis of disability, by arresting and incarcerating individuals in state correctional facilities who have been placed on conditional discharge following a finding of NGRI, solely because they are alleged to have violated a condition of their discharge. 81. La. Code Crim. P. art. 658(B) and La. Code Crim. P. art. 899, on their face, violate Section 504 and are contrary to the Supremacy Clause of the United States to the extent that they authorize state officials to arrest and incarcerate persons found NGRI and placed on conditional release merely because they are alleged to have violated a condition of their release.
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82. Defendants’ policies, practices and procedures, which have caused, and in the absence of injunctive relief are likely to cause, Plaintiff to be confined in a correctional facility for the sole reason that he allegedly violated a condition of his conditional release, violate Section 504 of the Rehabilitation Act.
VII. PRAYERS FOR RELIEF WHEREFORE, Plaintiff prays for judgment against the Defendants as follows: A. Award Plaintiff compensatory damages in an amount to be shown at trial. B. Issue an order granting Plaintiff permanent injunctive relief prohibiting Defendants from arresting and incarcerating individuals in correctional facilities who have been placed on conditional discharge following a finding of NGRI, solely because they are alleged to have violated a condition of their discharge; C. Issue a declaratory judgment that Defendants’ policies, practices, and procedures of arresting and incarcerating individuals in state correctional facilities who have been placed on conditional discharge following a finding of NGRI, solely because they are alleged to have violated a condition of their discharge violates Plaintiff’s rights under the Due Process Clause of the United States Constitution, Section 504 of the Rehabilitation Act of 1973, and Title II of the Americans with Disabilities Act of 1990; D. Issue a declaratory judgment that La. Code Crim. P. art. 658 (B) and La. Code Crim. P. art. 899 are, on their face, unconstitutional under the Due Process and Supremacy Clauses of the United States constitution to the extent that they authorize state officials to arrest and incarcerate persons found NGRI and placed on conditional release merely because they are alleged to have violated a condition of their release. E. Award Plaintiff his reasonable attorneys’ fees and costs; F. Grant such other and further relief as this Court deems just and proper.
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Respectfully submitted this 28th day of May 2014.
TRUSSELL GEORGE
By and through his attorneys
/s/ Ronald K. Lospennato _______________________ Ronald K. Lospennato, Bar No. 32191 rlospennato@advocacyla.org
Concepcion “Koki” Otero, Bar No. 29372* kotero@advocacyla.org Advocacy Center 8325 Oak Street New Orleans, LA 70118 504-208-4679 504-335-2890
Nell Hahn, La. Bar No. 22406 Advocacy Center 600 Jefferson Street, Suite 812 Lafayette, Louisiana 70501 337-237-7380, ext. 313 337-237-0486 (fax) mtait@advocacyla.org
James Craig (Bar No. 33687)* james.craig@macarthurjustice.org
Katie M. Schwartzmann (Bar No. 30295) katie.schwartzmann@macarthurjustice.org
Vanessa Carroll** vanessa.carroll@macarthurjustice.org Roderick & Solange MacArthur Justice Center 4400 S. Carrollton Ave. New Orleans, LA 70119 (504) 620-2259 (p) (504) 208-3133 (f)
* Application for admission to MDLA forthcoming
** Application for admission pro hac vice forthcoming
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 Case 3:14-cv-00338-JWD-RLB Document 42 12/23/14 Page 1 of 25

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA
BATON ROUGE DIVISION

____________________________________

*

TRUSSELL GEORGE

*

*

PLAINTIFF

*

*

*

VS.

*

*

LOUISIANA DEPARTMENT OF PUBLIC *

SAFETY AND CORRECTIONS; JAMES *

M. LEBLANC, Secretary of the Louisiana *

Department of Public Safety and

*

Corrections, in his official capacity;

*

WHALEN GIBBS, Assistant Secretary of *

the Louisiana Department of Public Safety *

and Corrections, in his official and

*

individual capacities; GERALD STARKS, *

Director of the Division of Probation and *

Parole, in his official and individual

*

capacities; SCOTT TUBBS, Probation *

and Parole Agent, in his official and

*

individual capacities; KATHY KLIEBERT, *

Secretary of the Louisiana Department of *

Health and Hospitals, in her official

*

capacity; LOUISIANA DEPARTMENT *

OF HEALTH AND HOSPITALS; ERIC *

BRADY, District Forensic Coordinator, in *

his official and individual

*

capacities; and CHARLES P. VOSBURG, *

Consulting Psychologist for the Department *

of Health and Hospitals, in his official and *

individual capacities.

*

*

DEFENDANTS

*

____________________________________*

CIVIL ACTION NO.3:14-00338-JWD-SCR

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SECOND AMENDED COMPLAINT I. INTRODUCTION 1. Plaintiff, Trussell George, Jr., is a person with a mental illness who was placed in the community on conditional release following a finding that he was Not Guilty by Reason of Insanity (NGRI) to a criminal offense. Plaintiff brings this civil rights action under 42 U.S.C. § 1983 and federal statutes barring discrimination on the basis of disability seeking compensatory damages against the Louisiana DEPARTMENT OF HEALTH AND HOSPITALS and compensatory and punitive damages against Defendants Whalen Gibbs, Assistant Secretary of the Louisiana Department of Public Safety and Corrections; Gerald Starks, Director of the Division of Probation and Parole; Scott Tubbs, Probation and Parole Agent; Eric Brady, District Forensic Coordinator; and Charles P. Vosburg, Consulting Psychologist for the Department of Health and Hospitals, in their individual capacities. Plaintiff also seeks a declaratory judgment, and injunctive relief to enjoin Defendants’ policies, practices, and procedures, executed under color of state law, that caused him, and are likely to cause him in the future, to be incarcerated in a correctional facility in Louisiana solely because he was alleged to have violated a term of his conditional release. Plaintiff contends that Defendants’ policies, practices, and procedures, which caused him to be arrested and incarcerated on two separate occasions following the finding that he was NGRI to all criminal charges, violate his rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and subjected him to intentional discrimination in violation of Section 504 of the Rehabilitation Act of 1973 (“Section 504”) and Title II of the Americans with Disabilities Act of 1990 (“ADA”). II. JURISDICTION
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2. This Court has federal question jurisdiction under 28 U.S.C. §§1331 and 1343, in that this is an action arising under the Fourteenth Amendment to the United States Constitution, the ADA, and Section 504.
3. Venue is appropriate in this court under 28 U.S.C. §1391(b)(2) since the Defendants reside in this district.
III. PARTIES 4. Plaintiff TRUSSELL GEORGE, JR. is a 36-year-old man diagnosed with mental illness and a significant intellectual and developmental disability. He is currently confined on an inpatient basis at the Eastern Louisiana Mental Health System (ELMHS) in Jackson, Louisiana. Until May of this year, he resided at the Stern Community Group Home located at 15626 Confederate Ave., Baton Rouge, Louisiana. While living in the group home he was under the supervision of the Division of Probation and Parole of the Louisiana Department of Safety and Corrections and Community Forensic Services (CFS) of the Louisiana Department of Health and Hospitals, having been found NGRI to a charge of possession of a weapon by a felon. He has received treatment for mental illness since the age of 12. Mr. George’s mental health diagnoses include Schizophrenia, Bipolar Disorder, and Psychosis NOS. 5. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS is the state agency responsible for monitoring and providing services to persons placed on conditional release or probation. The Division of Probation and Parole, which supervises Mr. George’s conditional release, is located within the Department. The Department receives federal financial assistance and is a public entity as defined by 42 U.S.C. § 12131(1) (B). 6. Defendant JAMES M. LEBLANC is Secretary of the Louisiana Department of Public Safety and Corrections. Pursuant to La. R.S. 36:403, he is responsible for the
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administration, control, and operation of the functions, programs, and affairs of the Department. He is also responsible for, among other things, operating a probation and parole system, in accordance with the law. La. R.S. 36:401(B)(3). He is being sued in his official capacity only.
7. Defendant WHALEN GIBBS is the Assistant Secretary of the Louisiana Department of Public Safety and Corrections. As such, he directs the operations of the Louisiana Division of Probation and Parole. Pursuant to La. R.S. 15:574.11(A), the Division of Probation and Parole provides for the investigation and supervision of adjudicated adult offenders. Also, pursuant to La. Code Crim. P. 658(B)(1), the division is charged with supervising individuals who have been placed on conditional release following a finding of NGRI. Whalen Gibbs is being sued in his official and individual capacities.
8. Defendant GERALD STARKS is the Director of the Louisiana Division of Probation and Parole. As such, he assists in the administration, development, and implementation of policies of the Division of Probation and Parole. Gerald Starks is being sued in his official and individual capacities.
9. Defendant SCOTT TUBBS is an employee of the Louisiana Division of Probation and Parole, acting under the direction and supervision of Defendants LeBlanc, Gibbs, and Starks. Mr. Tubbs has responsibility for monitoring individuals placed on conditional discharge and implementing the policies and procedures of the Division of Probation and Parole. On information and belief, he is a decision-maker regarding whether conditionally discharged individuals whom he supervises are arrested and incarcerated. Scott Tubbs is being sued in his official and individual capacities.
10. Defendant KATHY KLIEBERT is the Secretary of the Louisiana Department of Health and Hospitals (“DHH”). Pursuant to La. R.S. 36:254, she is responsible for the oversight,
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supervision and control of DHH and its divisions and is ultimately responsible for ensuring that DHH’s services for people with disabilities are provided in conformance with federal law. She is being sued in her official capacity only.
11. Defendant, LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS (DHH) is a state agency, which in conjunction with the DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, is responsible for monitoring and providing services to persons who have been found NGRI and who have been either placed on conditional release or committed to a state or private mental health facility. DHH operates the CFS program and ELMHS. District Forensic Coordinators (also known as “conditional release program coordinators”) monitor Mr. George while he is on conditional release and is responsible for providing him with appropriate mental health services while he is in the community. The Department receives federal financial assistance and is a public entity as defined by 42 U.S.C. § 12131(1) (B).
12. Defendant ERIC BRADY is employed as a District Forensic Coordinator by DHH and, as such, works under the direction and supervision of Defendant Kliebert. Mr. Brady has responsibility for monitoring individuals who have been found NGRI and placed on conditional discharge and for and implementing the policies and procedures of DHH with respect to such persons. Mr. Brady was a key decision-maker in the arrest and incarceration of Plaintiff in 2013 and 2014. Mr. Brady is being sued in his official and individual capacities.
13. Defendant CHARLES P. VOSBURG, Ph.D. is a consulting psychologist with CFS. Dr. Vosburg has responsibility for evaluating and providing mental health services, in accordance with the policies and procedures of DHH, to individuals placed on conditional discharge and persons found NGRI who have been placed at ELMHS. Dr, Vosburg was a key
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decision-maker in the arrest and incarceration of Plaintiff in 2014. Dr. Vosburg is being sued in his official and individual capacities.
IV. STATUTORY SCHEME 14. La. R.S. 14:14 states that an individual charged with a criminal offense is exempt from criminal responsibility for his behavior when “the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question.” 15. La. R.S. 28:2(20) defines a mentally ill person as “any person with a psychiatric disorder which has substantial adverse effects on his ability to function and who requires care and treatment.” 16. When the defendant enters a plea of not guilty and NGRI, the court may appoint a Sanity Commission, as provided in La. Code Crim. P. art. 644, to examine the defendant to determine whether he or she was “insane” at the time of the offense. La. Code Crim. P. arts. 650–652. 17. A finding of NGRI means that the defendant has committed the acts that constitute the crime; however, the defense has proven by a preponderance of the evidence that the defendant was insane at the time the acts were committed and thus cannot be held legally responsible. La. Code Crim. P. art. 651. 18. La. Code Crim. P. art. 654 provides that if the defendant is found NGRI in a noncapital case, the court shall remand him to the parish jail or to a private mental institution approved by the court and promptly hold a hearing to determine whether he or she can be released. When a verdict of NGRI is returned in a capital case, the code article requires the court to commit the defendant to a state or private mental institution for care, custody, and treatment.
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19. Under the United States Constitution, an acquittee’s liberty may be curtailed only upon a finding that he is both dangerous and mentally ill. However, implicit in the NGRI acquittal is a finding that the defendant is mentally ill. Therefore, at the initial contradictory hearing following a NGRI finding, the only issue before the court in determining whether the acquittee should be released or committed, is whether the acquittee is dangerous. See La. Code Crim. P. art. 654.
20. Under Louisiana’s statutory scheme, after a contradictory hearing, and considering the Sanity Commission’s findings, the court may order the individual’s release or may place him on conditional release. To place the insanity acquittee on conditional release, the court must find that:
(1) Based on the factors which the court shall consider pursuant to Article 657, he does not need inpatient hospitalization but needs outpatient treatment, supervision, and monitoring to prevent his condition from deteriorating to a degree that he would likely become dangerous to self and others. (2) Appropriate outpatient treatment, supervision, and monitoring are reasonably available. (3) There is significant reason to believe that the insanity acquittee, if conditionally released, would comply with the conditions specified. (4) Conditional release will not present an undue risk of danger to others or self, as defined in R.S. 28:2(3) and (4). La. Code Crim. P. art. 657.1. 21. If the court determines that the defendant cannot be released without danger to others or to himself, the court shall order him committed to a proper state mental institution or to a private mental institution approved by the court for custody, care, and treatment. La. Code Crim. P. art. 654.
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22. Even if a defendant has been committed under La. Code Crim. P. art. 654 as a result of having been found dangerous and presumed mentally ill based on the finding of NGRI, the acquittee may later apply for discharge or conditional release. La. Code Crim. P. art. 655.
23. The insanity acquittee or the superintendent of the facility in which he is being held may petition a review panel for discharge. The review panel is comprised of comprised of the person's treating physician, the clinical director of the facility to which the person is committed, and a physician or psychologist who served on the sanity commission which recommended commitment of the person. If the review panel determines that the acquittee is not a danger to himself or others, it can recommend to the court that he be discharged conditionally or unconditionally or placed on probation. La. Code Crim. P. art. 655(A).
24. Upon this recommendation or upon an acquittee’s petition, the court may hold a contradictory hearing, La. Code Crim. P. art. 655(A), and order that the acquittee be conditionally released for a “fixed or an indeterminate period.” La. Code Crim. P. art. 657.
25. In ordering a conditional release, the court “shall subject a conditionally released insanity acquittee to such orders and conditions it deems will best meet the acquittee's need for treatment, supervision, and monitoring and will best serve the interests of justice and society.” La. Code Crim. P. art. 657.1(B).
26. Typically, the conditional release orders impose restrictions and requirements, such as compliance with treatment, signing release of information forms, or refraining from the use of alcohol, that do not in and of themselves constitute criminal conduct, even if violated.
27. When ordered, a conditional release must extend at least one year but not more than five, although it can be extended after five years in one-year increments for good cause shown at a yearly contradictory hearing. La. Code Crim. P. art. 657.2.
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28. The insanity acquittee on conditional release is supervised by the Division of Probation and Parole of the Louisiana Department of Public Safety and Corrections.
29. In addition, District Forensic Coordinators of CFS are responsible for the community treatment and monitoring of individuals placed in the community on conditional release after being found NGRI. See La. Code Crim. P. 658(B).
30. Pursuant to La. Code Crim. P. art. 658(B)(1), if the division of probation and parole alleges that the acquittee violated or is about to violate a condition of his conditional release, he may be arrested and detained in a correctional facility under the provisions of La. Code Crim. P. art. 899, which applies to those who have been convicted of a crime and placed on probation.
31. The court must be notified of violations and receive a recommendation from the conditional release program coordinator as to whether the conditional discharge should be revoked or the insanity acquittee recommitted. La. Code Crim. P. art. 658(B)(5).
32. Pursuant to La. Code Crim. P. art. 658(B)(6), a court, on its own motion or that of the district attorney or probation officer, can order the acquittee arrested and incarcerated in order to determine whether the acquittee violated a term of his conditional discharge.
33. Upon receiving a report and recommendation from a review panel pursuant to La. Code Crim. P. art. 658(B)(5), the court must “immediately” hold a hearing or transfer the case to the parish of commitment, if different from the parish of arrest, at which place the hearing should be held “as soon as possible.” La. Code Crim. P. art. 658(B)(6).
34. If the court determines that there has been a violation of a term of the conditional release or that the acquittee was about to violate the conditions of release, it may do any of the following:
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(a) Reprimand and warn the probationer; (b) Order that supervision be intensified; (c) Modify or add additional conditions to the probation; (d) Revoke the probation and recommit the probationer to a state mental institution, subject to consideration for discharge or release on probation only after one year has elapsed from the date of revocation and in accordance with the procedure prescribed in Articles 655 through 657 for a first application and hearing. La. Code Crim. P. art. 658(C). 35. If an acquittee violates the terms of conditional release, there are options under Louisiana law other than arrest and incarceration. If a person on conditional release or otherwise on probation under the aforementioned code provisions is in need of acute, i.e. short-term, hospitalization and is not charged with a new criminal offense, he may be voluntarily admitted pursuant to La. R.S. 28:52 or admitted by emergency certificate pursuant to La. R.S. 28:53 to the ELMHS or to another suitable treatment facility, with subsequent notice to the court. La. Code Crim. P. art. 658(B)(4). 36. If the court determines that the defendant cannot be released without danger to himself or others, the court shall order him committed to a proper state mental institution or to a private mental institution approved by the court for custody, care, and treatment. La. Code Crim. P. art. 654. 37. Even if a defendant has been committed under La. Code Crim. P. art. 654, as a result of having been found dangerous and presumed mentally ill based on the finding of NGRI, the acquittee may later apply for discharge or conditional release. La. Code Crim. P. art. 654(B). 38. In addition, the superintendent of the facility in which the acquittee is being held may petition the review panel for discharge, which can recommend to the court that the person
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be discharged conditionally or unconditionally or placed on conditional release, after finding that the acquittee is not a danger to himself or others or is no longer mentally ill.
39. The court can completely discharge an acquittee from conditional release “after the expiration of one year in a supervised conditional release program only on recommendation of the director of the division of probation and parole or the administrator of the conditional release program or on other proper evidence of expected outpatient compliance with any continued treatment recommendations, and after a contradictory hearing with the district attorney.” La. Code Crim. P. art. 658(D). The court may also grant an application for discharge with no probation period. La. Code Crim. P. art. 654.
V. STATEMENT OF FACTS 40. In 1997 and 1999, respectively, Mr. George was allowed to plead guilty, despite his mental illness and significant cognitive disabilities, to charges of criminal trespass and possession of a schedule II substance. 41. In 2008, based upon his prior convictions of criminal trespass and possession of a schedule II substance, Mr. George was charged with possession of a firearm by a felon. 42. Following his arraignment, the court initially referred Mr. George’s case to a Sanity Commission to determine whether he was competent to stand trial. 43. The Sanity Commission found that Mr. George was not competent to stand trial. 44. The recommendation of the Sanity Commission was not adopted by the court. Instead, his case was again referred to the Sanity Commission, this time to determine whether he was NGRI. 45. The Sanity Commission recommended that Mr. George was NGRI.
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46. On December 15, 2008, following a finding that Mr. George was NGRI to a
charge of possession of a firearm by a felon, the court ordered that he be conditionally released
pursuant to La. C. Crim. P. art. 657.1, for a period of five years, provided he receive adequate
outpatient treatment, supervision, and monitoring.
47. In ordering Mr. George’s conditional release, the court established, among other
things, the following conditions:
a) That he reside at Progressive Group Home, 1334 Frances Harriet Drive, Baton Rouge, Louisiana.
b) That he attend the local mental health clinic in Baton Rouge, Louisiana, and follow the treatment recommendations prescribed by his treating physician, as well as comply and cooperate with sessions of counseling and/or treatment, oral and/or injectable medications as ordered by the attending physician.
c) That he report to the local probation office within twenty-four (24) hours of release from jail, excluding non-business days.
d) That he be subject to the outpatient tracking/monitoring services to be provided by the Community Forensic Services Program of the Department of Health and Hospitals.
e) That he sign all consent for release of information forms and agencies involved in the medical/psychiatric care of the defendant shall report on a regular basis to the District Forensic Coordinator or State Probation Officer, who were authorized to have access to progress notes, attendance sheets, medication order sheets, and pertinent medical, psychiatric, psychological, and neurological consultations.
f) That he refrain from the consumption of alcohol and all illicit drugs and from frequenting places where alcohol/illicit drug sales and consumption occur.
g) That the Aftercare Provider notify the District Forensic Coordinator and/or State Probation Officer of any positive drug screens or problems related to treatment and/or behavior problems.
48. Although the location of the group home has changed since 2008, Mr. George
continuously resided in a group home setting as required by his conditional release order until
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May of 2014, except for a period of approximately one month, described below, when he was incarcerated.
49. The group homes Mr. George resided in are operated by Progressive Health Care Providers (PHP) and are Intermediate Care Facilities for People with Developmental Disabilities (“ICF-DD”). ICF-DD is one of a number of residential services options operated under the auspices of DHH. See La. R.S. 28:451.1 et seq. As is typical of many group homes, approximately five other individuals, all of whom have a developmental disability and many of whom have mental illnesses, resided in the PHP facilities with Mr. George. The daily operations of these group homes are handled by paid staff. All group home residents must be in active treatment.
50. During the five years that Mr. George resided in the PHP Group Home, he received an array of mental health services, including a day activities program and a Behavioral Support Plan to address behaviors that are a manifestation of his disability. Mr. George’s medication regimen has consisted of Risperdal injections every two weeks, Klonopin, Depakote, Trazodone, and Cogentin.
51. According to his Behavioral Support Plan, due to his mental illness, Mr. George on some occasions engaged in verbal aggression and non-compliance within the group home and the day program he attended during the week. His Behavioral Support Plan noted that on occasion, he may engage in outbursts and “threatening” episodes when his medication is not correct.
52. The behaviors that Mr. George manifests are typical of behaviors exhibited by many other men with mental illness and developmental disabilities residing in the close quarters of a group home.
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53. Six months prior to the end of his conditional discharge term, Mr. George was hospitalized and deprived of his needed medication regimen.
54. As a consequence of not having his medication, Mr. George allegedly engaged in verbal outbursts and threatening behavior, which included yelling at a staff member that he “had better get me a hamburger” and telling another resident at the group home that he was going to kill him. These statements were reported to Scott Tubbs, the Probation and Parole Officer, who monitors Mr. George’s conditional discharge.
55. At the request of Mr. Tubbs, employees of Mr. George’s day program drove Mr. George to the Probation Officer’s office, where he was arrested.
56. At the time of Mr. George’s arrest in July 2013, Mr. Tubbs knew, or should have known, of Mr. George’s disabilities and his need for appropriate mental health treatment.
57. Mr. George was consequently incarcerated from July 29, 2013 to August 23, 2013 at the East Baton Rouge Parish Prison on the basis of the alleged violation of his conditional discharge. He was released only after the undersigned counsel filed a petition for habeas corpus on his behalf in the Nineteenth Judicial District Court of East Baton Rouge Parish.
58. No criminal charges were ever filed against Mr. George for any behavior that occurred on or before July 29, 2013 that pertained to his incarceration in the East Baton Rouge Prison between July 29, 2013 and August 23, 2013.
59. After his release from East Baton Rouge Parish Prison in August 2013, Mr. George returned to live in his PHP group home.
60. In December 2013, prior to the expiration of Mr. George’s five-year conditional release period, DHH’s forensic coordinator, Defendant Eric Brady, requested that Mr. George’s conditional release be extended an additional year.
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61. On May 14, 2014, after several continuances, the court granted the Department’s request and extended Mr. George’s conditional release to December 14, 2014.
62. Within a week after the May 14, 2014 hearing, Defendant Brady arranged for Mr. George to be involuntarily hospitalized at the ELMHS.
63. Upon information and belief, DHH did not afford Mr. George the procedural protections set forth in La. R. S. 28:53-56 while he was confined at ELMHS. Mr. George did not agree to a voluntary admission and Defendant Brady did not secure an emergency certificate pursuant to R.S. 28:53.
64. Even if the legal basis for Mr. George’s commitment at ELMHS was an emergency certificate, by July 1, 2014 such a certificate had long expired.1
65. DHH did not apply for a judicial commitment under La. R. S. 28:54. Instead, Mr. George remained in ELMHS without written notice of allegations on which his commitment was based, or an opportunity for a hearing, until July 1, 2014.
66. On July 1, 2014, while still hospitalized at ELMHS, Defendants Eric Brady, Mr. George’s Forensic Coordinator, and Dr. Charles P. Vosburg, a psychologist with CFS, consulted and decided that Mr. George’s “probation” should be revoked and that his probation officer should remove him from ELMHS and cause him to be incarcerated in the East Baton Rouge Parish Prison.

1

La. Code of Criminal Procedure Art. 658(B)(4) provides: “If a person on conditional release or

otherwise probated under this Chapter is in need of acute, i.e. short-term, hospitalization and is not

charged with a new criminal offense, he may be voluntarily admitted pursuant to R.S. 28:52 or admitted

by emergency certificate pursuant to R.S. 28:53 to the Feliciana Forensic Facility or to another suitable

treatment facility, with subsequent notice to the court.” Under La. R.S. 28:53(A)(1), a person can only be

detained 15 days pursuant to an emergency certificate. In order to detain an individual in a treatment

facility past the 15 days, 28:53(H) requires that a petition for judicial commitment under La.R.S. 28:54 be

filed.

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67. As a consequence, on July 1, 2014, Mr. George was again arrested and incarcerated in East Baton Rouge Prison by a representative of the Division of Probation and Parole for violating the terms of his conditional discharge.
68. At the time they caused him to be arrested and incarcerated, Defendants Eric Brady and Charles P. Vosburg knew, or should have known, of Mr. George’s disabilities and his need for appropriate mental health treatment.
69. Again, Mr. George was forced to apply to the Nineteenth Judicial District Court in East Baton Rouge for relief.
70. On August 22, 2014, the district court, acting on Plaintiff’s Motion for Release, ordered him released from the East Baton Rouge Parish Prison and temporarily placed at ELMHS.
71. Despite the district court’s order that Plaintiff be immediately released, Plaintiff was not released from the East Baton Parish Rouge Prison and placed at ELMHS until August 25, 2014.
72. No criminal charges were ever filed against Mr. George for any behavior that occurred on or before July 1, 2014 that pertain to his incarceration in the East Baton Rouge Parish Prison between July 1, 2014 and August 25, 2014.
73. While incarcerated in 2013 and 2014, Mr. George was deprived of appropriate mental health treatment and, as a result, became very nervous and paranoid.
74. While incarcerated in 2013 and 2014, Mr. George was not provided with an opportunity to post bail, to have an attorney appointed for him, or to be read his rights. At no time during his incarceration was Mr. George notified of the charges against him or how long he would be held.
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75. While incarcerated in 2013 and 2014, Mr. George was isolated and placed in lockdown for “mental reasons,” which meant that he only had 15 minutes to leave his cell to take a shower, had no exercise time, and was restricted in his use of the canteen and in his ability to receive reading material.
76. At a hearing on September 23, 2014, the Nineteenth Judicial District Court in East Baton Rouge, Judge Richard Moore presiding, ordered that Mr. George remain at ELMHS and that his placement be reviewed at a hearing scheduled for December 11, 2014.
77. The Defendants, Department of Public Safety and Corrections and Department of Health and Hospitals, as a matter of policy, practice, and procedure, arrest and incarcerate, or secure the arrest and incarceration, of individuals placed on conditional release following a NGRI determination for the sole reason that they are alleged to have violated a condition of their release.
78. Due to Defendants’ policies and practices, Mr. George is at substantial risk of future incarceration for breaching conditions of his release and his status as a person who has been found NGRI and compelled to receive mental health services from Defendants.
79. The primary purpose for incarcerating individuals in Louisiana correctional facilities is punishment. Such facilities do not have the capacity to provide the mental health treatment to individuals found NGRI.
80. Only persons with mental illness in Louisiana are intentionally subjected to punishment by incarceration in correctional facilities in the absence of pending criminal charges or a conviction of a criminal offense.
81. Defendants, at all times relevant to this complaint, acted under color of state law.
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82. Defendants, at all times relevant to this complaint, have acted and continue to act with deliberate indifference to Plaintiff’s liberty interests.
83. Defendants intentionally discriminate against persons found NGRI on the basis of their mental illness by confining them, or causing them to be confined, in Louisiana correctional facilities where they are subjected to punishment and unable to access appropriate mental health services.
84. Defendants, at all times relevant to this complaint, knowingly and intentionally violated Plaintiffs’ constitutional and federal statutory rights.
85. As a direct and proximate result of the foregoing, Plaintiff has been deprived of his liberty by incarceration in a Louisiana correctional facility and has suffered significant irreparable damage to his mental health.
86. As a direct and proximate result of Defendants’ policies, practices, and procedures, Plaintiff, who is still on conditional release, is in significant jeopardy of again being subjected to irreparable harm by being incarcerated in a correctional facility and deprived of his mental health treatment and services.
VI. CAUSES OF ACTION A. VIOLATION OF SUBSTANTIVE DUE PROCESS 87. Under the Due Process Clause to the United States Constitution, only individuals who have been properly charged with or convicted of a crime may be punished by incarceration in prison or jail. Jones v. United States, 463 U.S. 354, 369 (1983). 88. “[D]ue process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed." Jackson v. Indiana, 406 U.S. 715, 738 (1972).
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89. For insanity acquittees, the purpose of commitment is to provide treatment of their mental illness in a manner that is not punitive, and to protect society from dangerous behavior that may result from that mental illness.
90. For insanity acquittees, when either dangerousness or mental illness ceases to exist, the State has no legitimate interest in commitment.
91. Defendants’ policies, practices and procedures, which cause persons who have been found NGRI and are able to be released on specified conditions without danger to themselves or others to be confined in correctional facilities for the sole reason that they are alleged to have violated a condition of their release, violate those persons’ rights under the Due Process Clause to the United States Constitution.
92. La. Code Crim. P. art. 658 (B) and La. Code Crim. P. art. 899 are unconstitutional on their face to the extent that they authorize state officials to arrest and incarcerate Plaintiff and other persons found NGRI merely because they are alleged to have violated a condition of their release.
93. Defendants’ actions, as set forth in this complaint, which caused Plaintiff to be confined in a correctional facility for the sole reason that he is alleged to have violated a condition of his release, violate his rights under the Due Process Clause to the United States Constitution.
94. In the absence of injunctive and declaratory relief, Defendants’ policies, practices and procedures, as described in this Complaint, are likely in the future to violate Plaintiff’s rights under the Due Process Clause to the United States Constitution.
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B. VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT 95. As a qualified person with disabilities, Plaintiff is entitled to the protections and benefits of Title II of the Americans with Disabilities Act (“ADA”), which provides that "no qualified individual with a disability shall, by reason of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity." 42 U.S.C. § 12132. 96. Regulations implementing the ADA prohibit a public entity from providing any aid, benefit, or service, directly or through contractual licensing, or other arrangements that (i) Deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service; (ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others; (iii) Provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others; and (iv) Provide different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others. 28 C.F.R. § 35.130(b)(1)(i-iv). 97. Defendants’ policies, practices and procedures, which cause individuals with mental illness who have been found NGRI to be confined in state correctional facilities following their commitment to a mental health facility solely because they are alleged to have violated a condition of their discharge, deny persons with mental illness who have been found NGRI the
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opportunity to effectively participate in or benefit from mental health services and subject them

to punishment on the basis of their disability in violation of Title II of the ADA.

98. The ADA's implementing regulations further provide that "a public entity may

not, directly or through contractual or other arrangements, utilize criteria or other methods of

administration: (i) that have the effect of subjecting qualified individuals with disabilities to

discrimination on the basis of disability….” 28 C.F.R. § 35.130(b)(3).

99. Defendants’ criteria and methods of administration, which single out for arrest

and incarceration persons with mental illness who have been found NGRI solely because it is

alleged that those persons violated a condition of their discharge, subject such persons to

discrimination on the basis of their disability and violate Title II of the ADA.

100.

Defendants’ criteria and methods of administration found in La. Code

Crim. P. art. 658 (B) and La. Code Crim. P. art. 899, on their face, violate the ADA and are

contrary to the Supremacy Clause of the United States Constitution in that they authorize state

officials to arrest and incarcerate persons with mental illness found NGRI and placed on

conditional release for the sole reason that they are alleged to have violated a condition of their

release.

101. Defendants’ actions, as set forth in this complaint, which caused Plaintiff to be

confined in a correctional facility for the sole reason that he is alleged to have violated a

condition of his release, discriminate against Plaintiff on the basis of his disability and violate

Title II of the ADA.

102. Defendants’ policies, practices and procedures, which have caused, and in the

absence of injunctive relief are likely to cause, persons with mental illness, such as Plaintiff, to

be confined in a correctional facility for the sole reason that he allegedly violated a condition of

21

Case 3:14-cv-00338-JWD-RLB Document 42 12/23/14 Page 22 of 25
his conditional release, discriminate against Plaintiff on the basis of his disability and violate Title II of the ADA.
C. VIOLATIONS OF SECTION 504 OF THE REHABILITATION ACT 103. Section 504 of the Rehabilitation Act states that "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of his or her disability, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance . . .." 29 U.S.C. § 794(a). 104. Section 504's regulations also prohibit recipients of federal financial assistance from "utiliz[ing] criteria or methods of administration ... (i) [t]hat have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap …." 45 C.F.R. § 84.4(b)(4); 28 C.F.R. § 41.51(b)(3)(I). 105. Defendants’ criteria and methods of administration, which single out for arrest and incarceration persons with mental illness who have been found NGRI solely because it is alleged that they have violated a condition of their discharge, subject such persons to discrimination on the basis of their disability and violate Section 504 of the Rehabilitation Act. 106. Defendants’ policies, practices and procedures, which cause individuals with mental illness who have been found NGRI to be confined in state correctional facilities following their commitment to a mental health facility solely because they are alleged to have violated a condition of their discharge, denies them the opportunity to effectively participate in or benefit from mental health services and subjects them to punishment on the basis of their disability in violation of Section 504 of the Rehabilitation Act. 107. Defendants’ criteria and methods of administration found in La. Code Crim. P. art. 658 (B) and La. Code Crim. P. art. 899, on their face, violate the Section 504 of the
22

Case 3:14-cv-00338-JWD-RLB Document 42 12/23/14 Page 23 of 25
Rehabilitation Act and are contrary to the Supremacy Clause of the United States Constitution in that they authorize state officials to arrest and incarcerate persons with mental illness found NGRI and placed on conditional release for the sole reason that they are alleged to have violated a condition of their release.
108. Defendants’ actions, as set forth in this complaint, which caused Plaintiff to be confined in a correctional facility for the sole reason that he is alleged to have violated a condition of his release, discriminate against Plaintiff on the basis of his disability and violate Section 504 of the Rehabilitation Act.
109. Defendants’ policies, practices and procedures, which have caused, and in the absence of injunctive relief are likely to cause, persons with mental illness, such as Plaintiff, to be confined in a correctional facility for the sole reason that he allegedly violated a condition of his conditional release, discriminate against Plaintiff solely on the basis of his disability and violate Section 504 of the Rehabilitation Act.
VII. PRAYERS FOR RELIEF WHEREFORE, Plaintiff prays for judgment against the Defendants as follows: A. Award Plaintiff compensatory and punitive damages in an amount to be shown at trial. B. Issue an order granting Plaintiff permanent injunctive relief prohibiting Defendants from arresting and incarcerating individuals in correctional facilities who have been placed on conditional discharge following a finding of NGRI, solely because they are alleged to have violated a condition of their discharge; C. Issue a declaratory judgment that Defendants’ policies, practices, and procedures of arresting and incarcerating individuals in state correctional facilities who have been placed on
23

Case 3:14-cv-00338-JWD-RLB Document 42 12/23/14 Page 24 of 25
conditional discharge following a finding of NGRI, solely because they are alleged to have
violated a condition of their discharge, violate Plaintiff’s rights under the Due Process Clause of
the Fourteenth Amendment to United States Constitution, Section 504 of the Rehabilitation Act
of 1973, and Title II of the Americans with Disabilities Act of 1990;
D. Issue a declaratory judgment that La. Code Crim. P. art. 658 (B) and La. Code
Crim. P. art. 899 are, on their face, unconstitutional under the Due Process and Supremacy
Clauses of the United States Constitution to the extent that they authorize state officials to arrest
and incarcerate persons found NGRI and placed on conditional release merely because they are
alleged to have violated a condition of their release.
E. Award Plaintiff his reasonable attorneys’ fees and costs;
F. Grant such other and further relief as this Court deems just and proper.
Respectfully submitted this 28th day of November 2014.
TRUSSELL GEORGE, JR.
By and through his attorneys
/s/ Ronald K. Lospennato Ronald K. Lospennato, Bar No. 32191 rlospennato@advocacyla.org
Concepcion “Koki” Otero, Bar No. 29372* kotero@advocacyla.org Advocacy Center 8325 Oak Street New Orleans, LA 70118 504-208-4679 504-335-2890
Nell Hahn, La. Bar No. 22406 nhahn@advocacyla.org Advocacy Center 600 Jefferson Street, Suite 812 Lafayette, Louisiana 70501
24

Case 3:14-cv-00338-JWD-RLB Document 42 12/23/14 Page 25 of 25
337-237-7380, ext. 313 337-237-0486 (fax) Katie M. Schwartzmann (Bar No. 30295) katie.schwartzmann@macarthurjustice.org Roderick & Solange MacArthur Justice Center 4400 S. Carrollton Ave. New Orleans, LA 70119 (504) 620-2259 (p) (504) 208-3133 (f) CERTIFICATE OF SERVICE I hereby certify that on November 28, 2014, a copy of the foregoing Second Amended Complaint was filed electronically with the Clerk of Court using the CM/ECF system. Notice of this filing will be sent to counsel of record by operation of the court's electronic filing system. /s/ Ronald K. Lospennato Ronald K. Lospennato
25

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

TRUSSELL GEORGE
VERSUS
LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, et al.

CIVIL ACTION NO. 14-338-JWD-SCR
RULING AND ORDER

This matter is before the Court on the Motion to Dismiss (Doc. 34) filed by Defendant,

Charles Vosburg, Ph.D. (“Dr. Vosburg” or “Defendant”), seeking to dismiss all claims against

him pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff, Trussell George, opposes the

motion (Doc. 36), and Defendant has filed a reply (Doc. 40). After careful review of the

submissions of the parties, the Second Amended Complaint, and the relevant law, the Court

denies the Defendant’s motion.

I. Relevant Factual Allegations and Background

Plaintiff, a current inpatient at the Eastern Louisiana Mental Health System (“ELMHS”),

filed a complaint under 42 U.S.C. § 1983 alleging violations of the Due Process Clause of the

Fourteenth Amendment to the United States Constitution, Title II of the Americans with

Disabilities Act of 1990 (“ADA”), and Section 504 of the Rehabilitation Act of 1973 (“Section

504”) on May 28, 2014. (Doc. 1). Plaintiff filed a First Amended Complaint on September 24,

2014. (Doc. 24). Plaintiff’s Second Amended Complaint was filed on December 23, 2014. (Doc.

42). For purposes of this motion, the allegations in Plaintiff’s Second Amended Complaint will

be taken as true.

Plaintiff has a history of mental illness, which includes diagnoses of Schizophrenia,

Bipolar Disorder, and Psychosis NOS. (Doc. 42, ¶4). In December of 2008, Plaintiff was

1

adjudged Not Guilty by Reason of Insanity (“NGRI”) relative to a criminal offense (specifically, being a felon in possession of a firearm). (Id. at ¶46). By state court order and pursuant to state law, Plaintiff was conditionally released for a term of five years.1 (Id.). The court order established numerous conditions on his release including requiring Plaintiff to reside in a group home and receive adequate outpatient treatment and medications. (Id. at ¶47).
During his conditional release, Plaintiff resided in a group home under the supervision of the Division of Probation and Parole of the Louisiana Department of Public Safety and Corrections and the Community Forensic Services of the Louisiana Department of Health and Hospitals. (Id. at ¶4). On two separate occasions during his conditional release, Plaintiff was arrested and placed in the East Baton Rouge Parish Prison. 2 (Id. at ¶¶55, 67). The basis for the arrests was “violating the terms of his conditional discharge.” (Id.). Plaintiff asserts that no criminal charges were filed against him pertaining to either incarceration. (Id. at ¶¶58, 72).
Plaintiff alleges that “[o]nly persons with mental illness in Louisiana are intentionally subjected to punishment by incarceration in correctional facilities in the absence of pending criminal charges or a conviction of a criminal offense.” (Id. at ¶80). This treatment of “persons found NGRI on the basis of their mental illness” allegedly subjects them to punishment in violation of the Due Process Clause and constitutes alleged intentional discrimination in violation of Section 504 of the Rehabilitation Act and Title II of the ADA. (Id. at ¶¶83, 91, 97, 106).
In his Second Amended Complaint, Plaintiff names, among others, Charles P. Vosburg, Ph.D., as a defendant. (Id. at ¶13). Dr. Vosburg is a consulting psychologist for the Community Forensic Services (“CFS”) of the Louisiana Department of Health and Hospitals. (Id.). Plaintiff
1 This term was later extended by one year which was to end on December 14, 2014. (Doc. 42, ¶61). 2 The first instance occurred from July 29, 2013, through August 23, 2013. The second ran from July 1, 2014, through August 25, 2014.
2

asserts that Dr. Vosburg was a “key decision-maker in the arrest and incarceration of Plaintiff in 2014.” (Id.).
Plaintiff alleges that the defendants, including Dr. Vosburg, “intentionally discriminate against persons found NGRI on the basis of their mental illness.” (Id. at ¶83). Plaintiff further alleges that the defendants, including Dr. Vosburg, “knowingly and intentionally violated Plaintiffs’ [sic] constitutional and federal statutory rights.”(Id. at ¶84).
In his Motion to Dismiss, Defendant Vosburg asserts that he is a “state health care provider” and that all of Plaintiff’s claims against him fall within the confines of the Louisiana Medical Malpractice Act (“LMMA”), La. Rev. Stat. 40:1299.41, et seq. (Doc. 34-1, p. 1). Claims falling under the LMMA must first be presented to a medical review panel. (Id.). Defendant, therefore, contends that because Plaintiff’s claims against him have not been submitted to a medical review panel, they must be dismissed as premature. (Id.).
II. Discussion A. Relevant Standard
When considering a Rule 12(b)(6) Motion to Dismiss, the court must evaluate whether the complaint meets the legal standard for pleading found in Rule 8, which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. Rule Civ. P. 8(a)(2). The federal pleading rules do not require dismissal of a complaint containing an “imperfect statement of the legal theory supporting the claim asserted.” Johnson v. City of Shelby, Mississippi, 574 U.S. ––––, 135 S.Ct. 346, 346 (2014).
Interpreting Rule 8(a) and Bell Atlantic Corp. v. Twombly, the Fifth Circuit explained: The complaint (1) on its face (2) must contain enough factual matter (taken as true) (3) to raise a reasonable hope or expectation (4) that discovery will reveal relevant evidence of each element of a claim. “Asking for [such] plausible grounds to infer [the element of a claim] does not impose a probability
3

requirement at the pleading stage; it simply calls for enough facts to raise a reasonable expectation that discovery will reveal [that the elements of the claim existed].”
Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 554, 127 S.Ct. 1955 (2007) (emphasis added)).
Analyzing this standard, our brother in the Western District stated:
Therefore, while the court is not to give the “assumption of truth” to conclusions, factual allegations remain so entitled. Once those factual allegations are identified, drawing on the court's judicial experience and common sense, the analysis is whether those facts, which need not be detailed or specific, allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft, 129 S.Ct. at 1949, Twombly, 555 U.S. at 556, 127 S.Ct. at 1965. This analysis is not substantively different from that set forth in Lormand, supra, nor does this jurisprudence foreclose the option that discovery must be undertaken in order to raise relevant information to support an element of the claim. The standard, under the specific language of Fed. Rule Civ. P. 8(a)(2), remains that the defendant be given adequate notice of the claim and the grounds upon which it is based. This standard is met by the “reasonable inference” the court must make that, with or without discovery, the facts set forth a plausible claim for relief under a particular theory of law provided there is a “reasonable expectation” that “discovery will reveal relevant evidence of each element of the claim.” Lormand, 565 F.3d at 257, Twombly, 555 U.S. at 556, 127 S.Ct. at 1965.
Diamond Services Corp. v. Oceanografia, S.A. De C.V., No. 10–177, 2011 WL 938785, at *3
(W.D.La. Feb.9, 2011) (citation omitted).
In Thompson v. City of Waco, Texas, 764 F.3d 500 (5th Cir. 2014), the Fifth Circuit
recently summarized the Rule 12(b)(6) standard as thus:
We accept all well-pleaded facts as true and view all facts in the light most favorable to the plaintiff. We need not, however, accept the plaintiff's legal conclusions as true. To survive dismissal, a plaintiff must plead enough facts to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Our task, then, is to determine whether the plaintiff stated a legally cognizable claim that is plausible, not to evaluate the plaintiff's likelihood of success.
Id. at 502–03 (internal citations and quotations omitted).
4

B. Analysis Defendant contends that Plaintiff’s complaint sets forth negligence claims against him because Plaintiff alleges that Defendant “knew or should have known” of Plaintiff’s disabilities and need for mental health treatment. (Doc. 34-1, p. 5; see also Doc. 40, p. 1). Plaintiff asserts that he is “not claiming negligence,” but rather is alleging that Defendant “intentionally deprived him of his constitutional and federal statutory rights.” (Doc. 36, p. 3). In Louisiana, two separate statutory schemes govern medical malpractice. Spradlin v. Acadia-St. Landry Med. Found., 758 So. 2d 116, 120 n.5 (La. 2000). The first is the Medical Liability for State Services Act (“MLSSA”), La. Rev. Stat. 40:1299.39, et seq., which governs medical malpractice actions against state health care providers. The second, the Louisiana Medical Malpractice Act (“LMMA”), La. Rev. Stat. 40:1299.41, et seq., governs actions against non-state health care providers. Both statutory schemes require the plaintiff to submit his or her medical malpractice claim to a medical review panel prior to instituting an action in state or federal court. La. Rev. Stat. 40:1299.39.1; La. Rev. Stat. 40.1299.47. The definition of “malpractice” under both the MLSSA and the LMMA encompasses only those claims which sound in negligence; intentional torts are not considered “malpractice” under either scheme.3 The Court recognizes that if Plaintiff had indeed asserted a state law claim of medical malpractice, then, pursuant to Louisiana state law, that claim would be premature. However, Plaintiff’s claims against Defendant are based on alleged violations of his Constitutional and federal statutory rights. (Doc. 42, p. 18-23). Indeed, the Plaintiff’s Complaint does not assert a single state law claim. (Doc. 42).
3 The MLSSA defines “malpractice” as “the failure to exercise the reasonable standard of care…in the provision of health care.” La. Rev. Stat. Ann. 40:1299.39A(4) (West 2015). The LMMA defines “malpractice” as “any unintentional tort…based on health care or professional services rendered…by a health care provider.” La. Rev. Stat. 40:1299.41A(13) (West 2015).
5

This Court has recently explained that the Louisiana Medical Malpractice Act is inapplicable to a claim for the violation of constitutional civil rights because such a claim “involves intentional wrongdoing on the part of a state official.” Bailey v. E.B.R. Parish Prison, 2015 WL 545706, at *3 (M.D.La. Feb. 9, 2015) (emphasis added). Other Louisiana district courts have also so held. See Thomas v. James, 809 F.Supp. 448 (W.D.La. 1993) (plaintiff was not required to submit his claim for intentional mistreatment to a medical review panel); Adams v. Foti, 2004 WL 241859, at *4 (E.D.La. 2004) (plaintiff’s claim of an intentional violation of his civil rights was not required to be presented to a Louisiana medical review panel). Inasmuch as Plaintiff’s Title II and Section 504 claims allege intentional discrimination on the part of the Defendants, the Court finds that the LMMA and MLSSA are inapplicable to them as well. Accordingly, Defendant’s Motion to Dismiss is denied.
Plaintiff has not asserted any claims sounding in negligence against Defendant. Indeed, Plaintiff has specifically stated that he “is not claiming negligence.” (Doc. 36, p. 3). However, if Plaintiff were to urge a claim based in negligence against Defendant Vosburg in the future, said claim would clearly fall under the ambit of Louisiana’s medical malpractice statutes. And, as such, Plaintiff would be required to follow the procedures found in the MLSSA as to that claim.
III. Conclusion Accordingly, IT IS ORDERED that the Motion to Dismiss (Doc. 34) filed by Defendant Charles P. Vosburg, Ph.D., is DENIED. Signed in Baton Rouge, Louisiana, on April 29, 2015.
S
JUDGE JOHN W. deGRAVELLES UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA
6

 
 UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

TRUSSELL GEORGE

CIVIL ACTION

NO. 3:14-00338-JWD-EWD

VERSUS

LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, ET AL
ORDER ON MOTION IN LIMINE
I. INTRODUCTION Before the Court is the the Defendants' Motion in Limine to Exclude Plaintiffs Expert
Witness Delany M. Smith, M.D ("Motion"), (Doc. 107), filed by Defendants, and opposed by Mr. Trussell George ("George" or "Plaintiff'), (Doc. 116). In the Motion and the Opposition ("collectively, "Motions"), Defendants and Plaintiff (collectively, "Parties") contest a single issue: whether Plaintiffs expert should be permitted to testify pursuant to Federal Rules of Evidence 403 and 703 .1 Having considered the Parties' arguments, for the reasons more fully explained below, this Court denies the Motion. II. DISCUSSION A. STANDARD
Pursuant to Rule 702, "a witness who is qualified as an expert by knowledge, skill, experience, or education may testify in the form of an opinion or otherwise" if its preconditions

1 In this order, any and all references to "Rule" or "Rules" are to the Federal Rules of Evidence unless otherwise noted.

are met. FED. R. Evm. 702. Rule 702, however, does not render all expert testimony admissible. United States v Scavo, 593 F.2d 837, 844 (8th Cir. 1979). Rather, beyond being subject to the
Rule' s helpfulness requirement, expert testimony can still be excluded per Rule 403 . FED. R. Evro. 403 ; United States v Green, 548 F.2d 1261, 1270 (6th Cir. 1977). Entirely discretionary,
Rule 403 allows a court to "exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."
This is a Daubert challenge based on the expert' s alleged failure to use an accepted
methodology and her opinion' s alleged lack of an adequate factual foundation, (Doc. 107-1 at 2). Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). When Daubert is invoked, a district court may, but is not required, to hold a hearing at
which the proffered opinion may be challenged. Carlson v. Bioremedi Therapeutic Sys., Inc. , No. 14-20691 , 2016 WL 2865256, at *7, 2016 U.S. App. LEXIS 8951 , at *11 (5th Cir., May 16,
2016). However, when no hearing is held, "a district court must still perform its gatekeeping
function by performing some type of Daubert inquiry." Id. "At a minimum, a district court must
create a record of its Daubert inquiry and ' articulate its basis for admitting expert testimony."' Id. (quoting Rodriquez v. Riddell Sports, Inc. , 242 F.3d 567, 581 (5th Cir. 2001)).
The role of the trial court is to serve as the gatekeeper for expert testimony by making the
determination of whether the expert opinion is reliable. As the Fifth Circuit has held:
[W]hen expert testimony is offered, the trial judge must perform a screening function to ensure that the expert's opinion is reliable and relevant to the facts at issue in the case. . .. Daubert went on to make "general observations" intended to guide a district court's evaluation of scientific evidence. The nonexclusive list includes "whether [a theory or technique] can be (and has been) tested," whether it "has been subjected to peer review and publication," the "known or potential rate of error," and the "existence and maintenance of standards controlling the technique's operation," as well as "general acceptance." ... The Court summarized:
2

The inquiry envisioned by Rule 702 is, we emphasize, a flexible one. Its overarching subject is the scientific validity and thus the evidentiary relevance and reliability-of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.
Watkins v. Telsmith, Inc., 121 F.3d 984,988-89 (5th Cir. 1997) (internal citations omitted).
The cases following Daubert have expanded the factors and explained the listing is neither
all-encompassing nor is every factor required in every case. See, e.g. , Gen. Elec. Co. v. Joiner, 522
U.S. 136, 143 (1997); Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004). Indeed,
courts may look to other factors. Joiner, 522 U.S. at 146.
This Court has explained:
The admissibility of expert testimony is governed by Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., .. . which provide that the court serves as a gatekeeper, ensuring all scientific testimony is relevant and reliable. This gatekeeping role extends to all expert testimony, whether scientific or not. . . . Under Rule 702, the court must consider three primary requirements in determining the admissibility of expert testimony: 1) qualifications of the expert witness; 2) relevance of the testimony; and 3) reliability of the principles and methodology upon which the testimony is based.
Fayard v. Tire Kingdom, Inc. , No. 09-171 , 2010 WL 3999011 , at *1 , 2010 U.S. Dist. LEXIS
108845, at *2-3 (M.D. La. Oct. 12, 2010) (internal citation omitted) (citing to Kumho Tire Co. ,
Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999)).
This Court has broad discretion in deciding whether to admit expert opinion testimony.
See, e.g. , Joiner, 522 U.S. at 138-39 (holding that appellate courts review a trial court's decision
to admit or exclude expert testimony under Daubert under the abuse of discretion standard);
Watkins v. Telsmith, Inc., 121 F.3d 984, 988 (5th Cir. 1997) (holding "[d]istrict courts enjoy wide
latitude in determining the admissibility of expert testimony"); Hidden Oaks Ltd. v. City ofAustin,
3

138 F.3d 1036, 1050 (5th Cir. 1998) ("Trial courts have 'wide discretion' in deciding whether or
not a particular witness qualifies as an expert under the Federal Rules of Evidence.").
"Notwithstanding Daubert, the Court remains cognizant that 'the rejection of expert
testimony is the exception and not the rule.'" Johnson v. Samsung Elecs. Am. , Inc. , 277 F.R.D.
161 , 165 (E.D. La. 2011) (citing Fed. R. Evid. 702 Advisory Committee Notes to 2000
Amendments). Further, as explained in Scordill v. Louisville Ladder Grp., L.L. C., No. 02-2565,
2003 WL 22427981 , 2003 U.S. Dist. LEXIS 19052 (E.D. La. Oct. 24, 2003) (Vance, J.) :
The Court notes that its role as a gatekeeper does not replace the traditional adversary system and the place of the jury within the system.... As the Daubert Court noted, "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." . .. The Fifth Circuit has added that, in determining the admissibility of expert testimony, a district court must defer to " ' the jury's role as the proper arbiter of disputes between conflicting opinions. As a general rule, questions relating to the bases and sources of an expert's opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury's consideration."'
!d. at *3 (internal citations omitted) (relying on, among others, Rock v. Arkansas, 483 U.S. 44, 61 ,
107 S.Ct. 2704, 97 L. Ed. 2d 37 (1987), and United States v. 14.38 Acres ofLand, More or Less
Sit. In Leflore County, Miss., 80 F.3d 1074, 1077 (5th Cir. 1996) (quoting Viterbo v. Dow Chemical
Co., 826 F.2d 420,422 (5th Cir. 1987))).
The Supreme Court has recognized that not all expert opinion testimony can be measured
by the same exact standard. Rather, the Daubert analysis is a "flexible" one, and "the factors
identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature
of the issue, the expert's particular expertise and the subject ofhis testimony." Kumho, 526 U.S. at
150, cited with approval in, e.g. , Pipitone v. Biomatrix, Inc. , 288 F.3d 239, 244 (5th Cir. 2002).
In that vein, the Fifth Circuit has concluded that "soft sciences," like psychology, involve
"necessarily diminished methodological precision" when compared to other scientific disciplines
4

like mathematics and engineering. United States v. Simmons, 470 F.3d 1115, 1123 (5th Cir. 2006) (citing and quoting Jenson v. Eveleth Taconite Co., 130 F.3d 1287 (8th Cir. 1997)).
In such instances, other indicia of reliability are considered under Daubert, including professional experience, education, training, and observations. See e.g. , Because there are areas of expertise, such as the "social sciences in which the research theories and opinions cannot have the exactness of hard science methodologies", .. . trial judges are given broad discretion to determine "whether Daubert' s specific factors are, or are not, reasonable measures of reliability in a particular case."
!d. (internal citations omitted) (relying on Pipitone v. Biomatrix, Inc., 288 F.3d 239, 247 (5th Cir. 2002); Jenson , 130 F.3d at 1297; and Kumho Tire Co. , 526 U. S. at 153). B. APPLICATION
Dr. Smith is Board Certified in general and forensic psychiatry. (Doc. 116-1 at 1.) Defendants do not challenge Dr. Smith' s credentials. Rather, they attack the reliability of her conclusions based on first, a charge that she "ignored" the plaintiffs medical records and, second, that she did no testing. Defendants' contention that this witness "ignored" the Plaintiffs medical records is belied by Dr. Smith' s report, (Doc. 116-1), and her deposition, (Doc 116-2). The Court agrees with Plaintiff that this charge is "plainly and factually incorrect," (Doc . 116 at 2), to put it more mildly then perhaps it should be.
Defendants' second charge is that Dr. Smith did no testing. But, as Dr. Smith explained: "there is no test that you can perform to determine whether or not an incarceration in 2013 and another one in 2014, as in this case, caused any irreparable-significant irreparable damage to Mr. George' s mental health." (Doc. 116-2 at 16-17.) As explained above, this does not automatically disqualify the opinion. "In such instances, other indicia of reliability are considered under Daubert, including professional experience, education, training and observations." Simmons, 470 F.3d at 1123 (citations omitted). Such is the case here.
5

When one looks carefully at Defendants' allegations, it is clear that they simply disagree with the conclusions of this expert, not on Daubert-worthy grounds but rather, for reasons that are most appropriately tested by the traditional means of cross examination and ultimately left to the sound judgment of the jury. As the Daubert court itself noted, " [v] igorous cross-examination, presentation of contrary evidence and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509 U.S. at 596. III. CONCLUSION
For the foregoing reasons and subject to the exceptions stated therein, this Court DENIES the Defendants' Motion in Limine to Exclude Plaintiff's Expert Witness Delany M. Smith, M.D. (Doc. 107).
Signed in Baton Rouge, Louisiana, on June 20,2016.
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA
6

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

TRUSSELL GEORGE, JR.

CIVIL ACTION

VERSUS

No. 3:14-00338-JWD-EWD

LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, ET AL

ORDER AND RULING ON MOTIONS FOR SUMMARY JUDGMENT

I. INTRODUCTION Before the Court is the Motion for Summary Judgment ("Defendants' MSJ"), (Doc. 74),
filed by nine legal persons- the Louisiana Department of Public Safety and Corrections ("DPSC"); Mr. James LeBlanc ("LeBlanc"), in his capacity as Secretary for DPSC; Mr. Whalen Gibbs ("Gibbs"), Assistant Secretary for DPSC; Mr. Gerald Starks ("Starks"), Director of the DPSC' s Division of Probation and Parole ("Probation and Parole"); Mr. Scott Tubbs ("Tubbs"), an agent with Probation and Parole; Ms. Kathy Kliebert ("Kliebert"), in her capacity as Secretary for the Louisiana Department of Health and Hospitals ("DHH"); 1 DHH; Mr. Eric Brady ("Brady"), a District Forensic Coordinator ("DFC") for DHH; and Dr. Charles P. Vosburg ("Vosburg"), a consulting psychologist for DHH (collectively, "Defendants"}-and the Plaintiffs Motion for Partial Summary Judgment ("Plaintiffs MSJ"), (Doc. 76), filed by Mr. Trussell George, Jr. ("George" or "Plaintiff') by and through his Guardian Ad Litem, Ms. Letitica Walker ("Walker"). Defendants' MSJ is supported by a separately docketed

1 Officially, Kliebert has since been replaced as head ofDHH by Ms. Rebekah M. Gee ("Gee"). No motion has been filed to formally substitute Kliebert with Gee, though Defendants have made the switch in their latest filings. (See Doc. 98 at 1.)
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memorandum ("Defendants' Memorandum"), (Doc. 81); Plaintiffhas done the same with his own memo ("Plaintiff's Memorandum"), (Doc. 82). Defendants have countered Plaintiff's MSJ with Defendants' Memorandum in Opposition to Plaintiff's Motion for Partial Summary Judgment ("Defendants' Opposition"), (Doc. 89), and Defendants' Response to Plaintiff's Statement of Undisputed Facts ("Defendants' Response"), (Doc. 94). To these two motions, Plaintiff has replied with the Plaintiff's Reply to Defendants' Opposition to Summary Judgment ("Plaintiff's Reply"). (Doc. 96.) Plaintiffhas addressed Defendants' MSJ with the Plaintiff's Opposition to Defendants' Motion for Summary Judgment ("Plaintiff's Opposition"), (Doc. 91), to which Defendants have replied with the Reply Brief in Support of Defendants' Motion for Summary Judgment ("Defendants; Reply"), (Doc. 98).
In this suit, the reach of one federal constitutional provision-the Due Process Clause of the United States Constitution's Fourteenth Amendment- and two related federal statutes- the Americans with Disabilities Act of 1990 ("ADA"), as later amended, and Section 504 of the Rehabilitation Act of 19732-are at issue. In his dispositive filing, Plaintiff has asked this Court to declare that two related state laws- Articles 658 and 899 ofthe Louisiana Code of Criminal Procedure3-pursuant to which he was incarcerated are unconstitutional as applied to persons similarly situated. In their motion, Defendants maintain no reasonable doubt can be raised about the applicability of their every defense to and the legal weakness of Plaintiff's three discrete claims. In essence, Defendants ask for a dispositive ruling as to every fact-specific defense asserted in their multiple filings, and Plaintiff demands that a state law and a state practice,
2 In this ruling and order, any and all references to "Section 504" or"§ 504" are to this particular division ofthis federal statute. 3 In this ruling and order, any and all references to "Article" or "Articles" are to these particular subdivisions ofLouisiana's Code of Criminal Procedure.
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similar to many, be deemed unconstitutional. For the Defendants and Plaintiff(collectively, "Parties"), the law and the facts appear crystal clear.
Having weighed the Parties' arguments, this Court disagrees. As the Parties' lengthy filings suggest, a highly fact-specific analysis is required for every one of Defendants' asserted shields. Moreover, no uncontested principle of law firmly establishes or clearly forbids liability based on this case's particular facts. For purposes ofFederal Rule of Civil Procedure 56,4 this Court must determine whether material issues of fact are in dispute; when it does so in this case, too many questions remain unanswered for any one of Defendants' defenses to be adjudicated at this juncture. As courts have observed, the reasonableness of a certain course of conduct and the inadequacy of a proposed accommodation, so pivotal to one party's case and another's defense, require determinations for which a jury is empaneled and which only it can definitively answer.
Meanwhile, akin in language and structure to other state laws and a federal statute declared constitutional by a multitude of courts, Articles 658 and 899 cannot be found to be facially unconstitutional. It is possible that Plaintiff was subjected to an unconstitutional application of these articles. However, on their face, their constitutionality cannot be questioned based on precedent's overwhelming weight. For these reasons, as more fully explained below, the Plaintiffs MSJ and the Defendants' MSJ (collectively, "Dispositive Motions") must fail. 5
4 In this ruling and order, any reference to "Rule" or "Rules" is to the Federal Rules of Civil Procedure unless otherwise noted. 5 Technically, by denying Plaintiffs MSJ, this Court does accept Defendants' contention that Articles 658 and 699 are facially constitutional. To wit, this ruling can be construed as effectively granting in part Defendants' MSJ.
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II. FACTUAL AND PROCEDURAL BACKGROUND A. RELEVANT FACTS
Diagnosed with "schizophrenia, bipolar disorder, Psychosis NOS, and significant intellectual and development disability," (Doc. 42 at 3, 11), Plaintiff was found Not Guilty by Reason of Insanity ("NGRI") to a charge of possession of a weapon by a felon. (Doc. 103 ,-r 1 at 4; Doc. 103-2 ,-r 1 at 1; Doc. 76-21 at 2; Doc. 42 at 11.) Treated for these disabilities since the age of twelve, he had previously been convicted of criminal trespass and possession of a schedule II substance. (Doc. 1 at 9; Doc. 42 at 11 .) Upon his conviction, as required by law, on December 15, 2008, the Nineteenth Judicial District Court in East Baton Rouge, Louisiana, placed him on conditional release for a period of five years. (Doc. 103 ,-r 2 at 4; Doc. 103-2 ,-r 3 at 1- 2; Doc. 743 at 1; Doc. 76-21 at 2-3 ; Doc. 42 at 12.) The conditions totaled eight: (1) residence at Progressive Group Home ("PGH") in Baton Rouge; (2) attendance at a mental health clinic in Baton Rouge and compliance with treatment recommendations; (3) reporting to the local probation office within twenty-four hours of release from jail; (4) subjection to monitoring services provided by DHH' s Community Forensic Services Program ("CFS"); (5) consent for release of information from medical providers to agencies to report on a regular basis to the District Forensic Coordinator or State Probation Officer; (6) refraining from consumption of alcohol or illicit drugs and from frequenting places where consumption commonly occurs; (7) that providers notify the District Forensic Coordinator ("DFC") and/or State Probation Officer of any positive drug screens; and (8) refrain from possession of any weapons. (Doc. 103-2 ,-r 4 at 2; Doc. 74-3 at 1- 2; Doc. 42 at 12.) Commonly authorized for persons adjudicated NGRI, these conditions were not unusually harsh or particularly unique. (See, e.g. , Doc. 103 ,-r 7 at 5; Doc. 103-2 ,-r 13 at 4.)
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Following the verdict ofNGRI, Plaintiff was placed under the supervision of Probation and Parole and CFS. (Doc. 103 ~ 5 at 4; Doc. 103-2 ~ 10 at 3-4; Doc. 76-21 at 3; Doc. 1 at 9.) From December 2008 to May 2014, with certain notable exceptions at the heart of this case, Plaintiff resided in PGH. (Doc. 103 ~ 4 at 4, 103-2 ~ 6 at 3.) These supervising agencies contacted and worked with supervisees. (Doc. 103 ~ 7 at 5; Doc. 103-2 ~ 13 at 4.) Tubbs was assigned as Plaintiffs probation officer and monitored his conditional release. (Doc. 103-2 ~ 18 at 5; Doc. 74-3 at 2; Doc. 76-21 at 3.) Brady is one ofDHH's DFCs and had been assigned to assist Plaintiff and Tubbs. (Doc. 103 ~ 14 at 6; Doc. 103-2 ~ 24 at 6.) Vosburg is a consultant to CFS, (Doc. 103 ~ 16 at 6; Doc. 103-2 ~ 29 at 7), and was responsible for providing mental health services of DHH to individuals on conditional release and at the Eastern Louisiana Mental Health System ("ELMHS") in Jackson, Louisiana, and to provide recommendations as to placement and treatment, (Doc. 103-2 ~ 30 at 7), Starks served as the Director of Probation and Parole; Gibbs served as his immediate superior. (Doc. 42 at 3-4.) As such, by virtue of this state's statutory scheme, see, e.g. , LA. CODE CRJM. PROC. art. 658, and Plaintiffs multiple incarcerations and inpatient treatment at various facilities, (Doc. 42 at 13- 16), every Defendant was involved, whether directly (i.e. Tubbs, Brady, and Vosburg) or indirectly (i.e. LeBlanc, Kliebert/Gee, and Gibbs), with Plaintiffs case beginning on December 15, 2008. (See, e.g., Doc. 42 at 3---6.)
On June 10,2013, Tubbs allegedly prepared a letter to the state district court about Plaintiffs verbally aggressive behavior with staff at PGH and requested the court set a review date to address expiration of the conditional release. (Doc. 74-3 at 3.) For an unknown reason, no court date was ever set. (!d.) In time, though he was still at PGH, Plaintiffs misbehavior
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escalated.6 (!d.; see also, e.g., Doc. 42 at 13- 14.) About six months prior to the end of his conditional discharge term, George was hospitalized and deprived of his needed medication. (Doc. 1 at 11 ; Doc. 42 at 13.) As a consequence of this deprivation, in July of2013, Plaintiff apparently had an unusually extreme series of outbursts, each of which was reported to Tubbs. (Doc. 103-2 ~ 33 at 7-8; Doc. 76-21 at 3; Doc. 1 at 11.) Aware ofthese "verbal outbursts and threatening behavior," (Doc. 1 at 11 ), Tubbs and Brady arrested Plaintiff and confined him in East Baton Rouge Parish Prison ("EBRP") on July 29, 2013. (Doc. 103-2 ~ 35 at 8; Doc. 74-3 at 2; Doc. 76-21 at 3-4.)
The Parties' descriptions of subsequent events diverge. Plaintiff alleges that he was not charged with any crime during or after this incarceration and that Tubbs failed to request a court hearing for two weeks following incarceration. (Doc. 103-2 ~~ 41-44 at 12; Doc. 1 at 11.) Conversely, Defendant maintains that Tubbs notified the district court by telephone on the day of the arrest and, on August 12, 2013 , wrote a letter to the state district court outlining Plaintiff's behavior, and filed a Detainer Notification, Affidavit of Probable Cause, and a Motion for Hearing to Revoke Probation. (Doc. 74-3 at 2- 3.)
On August 23,2013, Plaintiff was released. (Doc. 103-2 ~ 45 at 12; Doc. 74-3 at 3; Doc. 76-21 at 4.) Between August and December 2013 , he once more lived in PGH. (Doc. 103-2 ~ 45 at 12; Doc. 74-3 at 3; Doc. 76-21 at 4.) In December of2013 , Brady requested the conditional release period be extended by a year. (Doc. 103-2 ~ 46 at 12; Doc. 74-3 at 3; Doc. 42 at 14.) In May 2014, the state court granted the request and extended the conditional release to December
6 Notably, per the Behavioral Support Plan produced by PGH, Plaintiff is prone to verbal aggregation and disobedience, "on occasion .. . engag[ing] outbursts and 'threatening' episodes when his medication is not correct." (Doc. 1 at 11.) According to Plaintiff, his behaviors "are typical of behaviors exhibited by many other men with mental illness and developmental disabilities residing in the close quarters of a group home." (!d.)
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14, 2015. (Doc. 103-2 ~ 47 at 12; Doc. 74-3 at 3; Doc. 42 at 15.) Within a week, Brady allegedly arranged for the Plaintiff to be involuntarily hospitalized at ELMHS with no secure emergency certificate and no judicially ordered commitment. (Doc. 103-2 ~~ 48-51 at 13; Doc. 76-21 at 4; Doc. 42 at 15.)
On July 1, 2014, while Plaintiff was at ELMHS, Brady, Vosburg, and Kelly decided conditional release should be revoked and Plaintiff should be incarcerated for refusing to accept transfer to a different unit ofELMHS. (Doc. 103-2 ~~52-56 at 13-14; Doc. 74-3 at 3-4; Doc. 76-21 at 4; Doc. 42 at 15.) Plaintiff contends that he reacted negatively to this news, acting angry and agitated and unleashing a slew ofverbal threats. (Doc. 103-2 ~~57-58 at 14-15; Doc. 76-21 at 4.) Even so, Plaintiff emphasizes that he did not strike or attempt to strike anyone, (Doc. 103-2 ~~57-58 at 14-15; Doc. 76-21 at 4), and had otherwise been compliant during his time at ELMHS, (Doc. 103-2 ~~ 59-60 at 15; Doc. 76-21 at 4). Naturally, Defendants tell a slightly different tale: in July of2014, Kelly contacted Tubbs to transport Plaintiff because he was concerned that Plaintiff might harm staff or other patients and that Plaintiff indicated he wanted to go to jail. (Doc. 74-3 at 4.) Regardless of the underlying reason, on August 25, 2014, Plaintiff was released from EBRP and returned to ELMHS, having never been charged with any crime. (Doc. 103-2 ~~ 64-65 at 16; Doc. 76-21 at 5.)
Plaintiffs treatment during these multiple incarcerations is not itself disputed although the adequacy of that treatment certainly is. Plaintiff alleges that during both incarcerations he did not receive appropriate mental health treatment, resulting in the aggravation of his underlying disorder. (Doc. 103-2 ~ 66 at 16; Doc. 76-21 at 5.) As an inmate, he was wholly isolated and afforded no exercise time, restricted use of canteen, and limited reading materials. (Doc. 103-2 ~ 67 at 16; Doc. 76-21 at 5; Doc. 1 at 12.) Throughout his time in jail, Plaintiff claims that he was
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not properly medicated, resulting in growing nervousness and paranoia. (Doc. 1 at 12; Doc. 42 at 16 -17.) Stated differently, Plaintiff essentially contends that, during his incarceration, no penal institution treated him for his qualified disability in spite of a record attesting to his manifold disorders. (See, e.g., Doc. 42 at 13-16.)
On August 14, 2014, the state court ordered Plaintiff released from EBRP. (Doc. 42 at 16.) His release, however, did not take place until August 25, 2014. (!d.) Through December 23, 2014, Plaintiff was again confined on an inpatient basis at ELMHS in Jackson, Louisiana. (!d. at 3.) Until May of2014, he resided at the Stem Community Group Home located at 15626 Confederate Ave., Baton Rouge, Louisiana. (!d.) In the group home, he was under the supervision ofLDPSC's Probation and Parole and DHH's CFS. (!d.)
B. PROCEDURAL HISTORY Plaintiff filed his first pleading on May 28, 2014, (Doc. 1), an amended complaint on
September 24, 2014, (Doc. 24), and the second amended complaint ("Complaint") on December 23,2014, (Doc. 42). Defendants' MSJ and Plaintiffs MSJ were tendered on February 1, 2016. (Doc. 74, 76.) The supporting memoranda were filed on February 2, 2016. (Docs. 81-82.) On February 24, 2016, Defendants docketed their opposition, (Doc. 91); on February 29, 2016, they filed their reply to the Plaintiffs statement of undisputed facts, (Doc. 94). Plaintiffs Reply came on March 7, 2016. (Doc. 96.) On March 8, 2016, Defendants submitted their reply. (Doc. 98.) On June 6, 2016, for the reasons stated in this ruling, this Court denied the Plaintiffs MSJ and Defendants' MSJ. (Doc. 112.)
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C. PARTIES' ARGUMENTS 1. Defendants' MSJ
Broadly, Defendants argue that summary judgment is appropriate in the present matter for the following reasons: (1) Defendants are entitled to immunity under the Eleventh Amendment pursuant to 28 United States Code, Section 1983/ (2) Defendants are entitled to qualified immunity; (3) Plaintiff's arrest was constitutional and in compliance with the relevant articles ofthe Louisiana Code of Criminal Procedure; (4) such articles are facially valid and constitutional; (5) Plaintiffs arrest was based on reasonable cause, the sole statutory requirement; (6) Plaintiff is not entitled to punitive damages; and (7) Plaintiff has failed to prove any violation ofthe ADA and RA. (Doc. 74 at 1-2.)
a. Eleventh Amendment Defendants assert that the Eleventh Amendment provides immunity for states and state
officials from suit brought their own citizens. (Doc. 74-3 at 7 (quoting Tennessee v. Lane, 541 U.S. 509, 124 S. Ct. 1978, 158 L. Ed. 2d 820 (2004)).) Defendants argue that neither states nor their officials are considered to be "persons" under § 1983 and therefore remain entitled to the immunity provided by the Eleventh Amendment. (Doc. 74-3 at 7 (quoting Will v. Michigan Dep 't ofState Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989)).) The one recognizable exception- Ex Parte Young, 209 U.S. 123,28 S. Ct. 441 , 52 L. Ed. 714 (1908), (Doc. 74-3 at 7)- allows for "suits against state officials for the purpose of enjoining the enforcement of an unconstitutional state statute." (!d. at 8 (quoting Okpalobi v. Foster, 244 F.3d 405, 411 (5th Cir. 2001)).)
7 In this ruling and order, any and all references to "Section 1983" or"§ 1983" are to this particular federal statute.
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Yet, because ofthe nature of Plaintiffs constitutional claim- he is seeking to enjoin the enforcement of Articles 658(B) and 899, which allow state officials to arrest and incarcerate individuals on the grounds that they have violated a condition of their conditional discharge, (Id. at 8- 9)-Defendants assert that this lone exception does not apply here for two reasons. First, Defendants argue that only Tubbs, as a probation or peace officer, is authorized to make such arrest and Plaintiff has provided no support to show that the others ever exercised such power. (Jd. at 8.) In contrast, Gee, Brady, and Vosburg have no ability to arrest and enjoining them from doing so would be meaningless. (Jd. at 9.) Second, LeBlanc, Gibbs, and Stark are purely supervisory officials. (Jd. at 10.) Not only does "vicarious liability ... not apply to§ 1983 claims" but such officials may only be held liable if "they affirmatively participate in acts that cause constitutional deprivations" and "implement unconstitutional policies that causally result in plaintiffs injuries." (!d. (quoting Mouille v. City ofLive Oak, Tex. , 977 F.2D 924, 929 (5th Cir. 1992)).)
By Defendants' reckoning, not one of these defendants falls into this exception for supervisory officials. LeBlanc is responsible for the operation of the system of probation and paroles, but he is not authorized to make arrests. (Jd. at 10.) Gibbs is the Assistant Secretary, who directs the operations of the same system. (Jd.) Starks, as Director of Probation and Parole, assisted in the administration, development, and implementation ofthis agency' s policies. (/d. ) It is argued that, as to each of these defendants, Plaintiff has failed to show how they were personally involved in George' s arrests, an action beyond their rightful powers. (Jd.) For that very reason, again, injunctive relief against them would be meaningless. (!d. at 10).
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b. Qualified Immunity As Defendants rightly note, state officials sued in their individual capacity and for
monetary relief may assert the doctrine of qualified immunity as a defense. (!d. at 11.) A state official may enjoy qualified immunity so long as his or her conduct does not violate "clearly established constitutional rights of which a reasonable person would have known." (!d. at 11.) This immunity protects "all but the plainly incompetent or those who knowingly violate the law." (!d. at 11 (quotingAshcroftv. al-Kidd, 563 U.S 731, 131 S. Ct. 2074,2085, 179 L. Ed. 2d 1149 (20 11)).) To determine whether the actions of a state official are protected by qualified immunity, the court is to consider "(1) whether the claims the Plaintiff alleges constitute a constitutional right and (2) whether the right was clearly established at the time of the incident." (!d. at 12) (quoting Pearson v. Callahan, 555 U.S. 231, 129 S. Ct. 808, 815, 172 L. Ed. 2d 565 (2009)).)
To Defendants, their apparent compliance with state law defeats application of either prong. Article 658 (B) allows for an individual to be placed on conditional release subject to the supervision of Probation and Parole. (!d.) The article further allows the person to be arrested in compliance with Article 899. (!d. at 13.) By steadfastly adhering to these articles, Defendants followed governing state law and had no reason to suspect a federal constitutional right was being infringed. (!d.) Put differently, in following statutes whose constitutional validity should be presumed, Defendants could not possibly have run afoul of "a clearly established constitutional right" or acted without this doctrine's requisite objective reasonableness. (Jd.)
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c. Facial Constitutionality ofArticles 658 and 899 In order for a statute to be unconstitutional on its face, there must be no set of
circumstances in which the statute would be valid. (!d. at 16.) As Defendants explain, Article 899 sets forth the process by which any probationer may be arrested or detained as the result of a violation of his or her probation. (!d. at 17.) Here, Plaintiff has asserted that Article 899 is unconstitutional as applied to individuals found NGRI and conditionally released. (!d.) By definition, therefore, other instances exist in which the article could be constitutionally applied, and Plaintiffs facial challenge must necessarily fail. (/d.) Further, Defendants contend that the Plaintiff fails to take into account circumstances in which a crime has been committed and/or fear for public safety would warrant an individual's arrest under Articles 899 and 658B. (!d.) In this case, as Defendants once more emphasize, Plaintiff was arrested because he was presumed to be a risk to the broader public, a ground which saves these articles ' constitutionality and defeats any possible facial argument. (!d. at 18.)
d. Punitive Damages In order to get punitive damages under§ 1983, the Plaintiff must demonstrate that the
Defendants' conduct was "motivated by evil motive or intent [or that] it involves reckless or callous indifference to the federally protected rights of others." (!d. at 19 (citing Smith v. Wade, 461 U.S. 30, 56, 103 S. Ct. 1625, 1640, 75 L. Ed. 2d 632 (1983)).) For Defendants, no such reckless or callous indifference can here be shown, for Plaintiffs arrest was pursuant to Articles 658(B) and 899, presumptively constitutional enactments, and was triggered by Plaintiffs violations of court-imposed conditions. (!d.) When the danger presented by Plaintiff was so obvious and clear, their actions- to confine him in a prison without minimally necessary medical
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care- and the official policy behind them, cannot be described as indicative of a reckless or callous indifference to Plaintiffs due process rights.
e. Applicability ofRA and ADA Rightly arguing that the ADA and § 504 encode the same legal standard, Defendants
admit that the Plaintiff qualifies as disabled for purposes of both these statutes. (ld) Nonetheless, they deny that Plaintiff was excluded, denied benefits, or discriminated against by reason of his disability. (Id) In so averring, Defendants assume that Plaintiffs argument is that his incarceration caused a denial of benefits. (Id at 20.) In making this argument, Defendants stress that there is no authority to support the idea that dependence on services, benefits, and activities could warrant immunity from incarceration, as Plaintiffs argument necessarily implies. (ld.)
2. Plaintiff's MSJ In a motion more focused than Defendants', Plaintiff asserts that there are no genuine
issues of material fact as to two discrete issues. So convinced, Plaintiff requests that this Court: (1) grant his motion; (2) enjoin the Defendants from arresting him because of a violation of his conditional release; (3) declare unconstitutional the Defendants' policies, practices, and procedures for arresting individuals on conditional release for violating a condition thereof; (4) declare Articles 658(B) and 899 facially unconstitutional under the Due Process and Supremacy Clauses of the United States Constitution; and (5) award Plaintiff such other relief as may be appropriate. (See, e.g. , Doc. 76-21 at 1.)
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a. Constitutional Violations The Fourteenth Amendment protects liberty interests that arise from the Due Process
Clause itself or the laws of the United States. (ld. at 6 (quoting Hewitt v. Helms, 459 U.S. 460, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983)).) An individual has a liberty interest in being free from incarceration absent a criminal conviction. (ld. at 6 (citing Meachum v. Fano , 427 U. S. 215 , 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976)).) Plaintiff first contends that, as an individual found not guilty by reason of insanity, he is exempt from criminal conviction and therefore cannot be subject to incarceration. (ld.) Any long-term or intermediate commitment based on the individual' s incompetence to stand trial, he argues, violates the Constitution. (ld.) Describing Article 658 as a civil commitment statute, Plaintiff alleges that the sole purpose of the Plaintiff's incarceration, which spanned several months, was because ofthe lack of beds at ELMHS. (ld. at 7.) However, "due process requires that the nature and duration of the commitment bear some reasonable relationship to the purpose for which individual is committed." (ld.) Although civil commitment is permissible when the individual is a risk to the public, the lack of capacity asserted here cannot be a justification for his incarceration. (Id.)
Next, as Plaintiff had a right to adequate medical treatment, his incarceration violated the Due Process Clause because ofthe lack of mental health treatment available in the prison (ld.) Lastly, Plaintiff maintains that "commitment for any purpose constitutes a significant deprivation of liberty that requires Due Process Protection," and such commitment will always violate the Constitution when no essential "rehabilitative" treatment is present or available. (Id. at 9.) Thus, individuals confined due to mental illness are constitutionally entitled to more than the basic necessities provided to the general prison population. (Id. at 12.) Even so, Plaintiff never received adequate treatment while incarcerated in the EBRP (ld. at 14.) He was not provided
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with a treatment plan, therapy, or consistent administration of his medication, and he was placed in clinically destructive lock down. (!d) Crucially, Defendants have seemingly admitted awareness of the prison' s limited mental health services, services normally provided by a proper mental health institution. (Id at 15- 16.) Clearly, Plaintiff argues, as a matter of law, a state ' s lack of resources cannot justify depriving an individual ofthese liberty interests. (Id at 13). Yet, as the uncontested facts allegedly show, such deprivation happened here. (Id)
b. Applicability ofRA and ADA The ADA was enacted to eliminate discrimination against individuals with disabilities.
(Id at 16.) Section 504 prohibits discrimination on the basis of disability in federally conducted programs and all other operations of public entities that receive federal assistance. (Id at 17.) Substantively similar, these related laws are linked by the ADA' s Title II, which extends the protections set forth in Section 504 to all state and local government entities. (Id.) Plaintiff argues that by incarcerating individuals on conditional release for violating a condition of that release, the Defendants discriminated against those with mental illness by (1) denying those individuals the benefit of conditional discharge programs and services and (2) providing them with unequal and separate opportunities to participate in programs and activities, different than non-disabled individuals and others adjudicated NGRI, some of whom receive treatment at state or private mental health institutions. (Id at 19.) So as to comply with these federal commands, Defendants should have reasonably modified their policies to allow Plaintiff to receive adequate mental health treatment. (Id at 23 (citing Rouse v. Plantier, 997 F. Supp. 575, 582 (D. N .J. 1997)).) Instead, Defendants (1) used incarceration as a routine technique for managing difficulties concerning those with disabilities, (2) treated Plaintiffs mental illness as a criminal
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justice matter, (3) denied Plaintiff placement in a mental health institution or group home and failed to take his mental illness into account, and (4) made it impossible for him to obtain the same benefits as provided by programs in such institutions. (ld at 24-25.)
III. DISCUSSION A. LEGALSTANDARD
1. Rule 56 Per Rule 56(a), summary judgment is appropriate "if the movant shows there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. Civ. P. 56(a); Wilson v. Tregre , 787 F.3d 322, 325 (5th Cir. 2015) (quoting Rule 56(a)). A dispute is "genuine" so long as "the evidence is such that a reasonable jury could return a verdict for the nonmoving party"; a fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); see also Ray v. United Parcel Serv., 587 F. App'x 182, 186 (5th Cir. 2014). Axiomatically, a court construes all facts and evidence in the light most favorable to the nonmovant. Haverda v. Hays Cnty., 723 F.3d 586, 591 (5th Cir. 2013). In response to another's motion, the nonmovant cannot rely on "[c]onclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments." TIG Ins. Co. v. Sedgwick James of Wash. , 276 F.3d 754, 759 (5th Cir. 2002).
Still, "[w]hen both parties have submitted evidence of contradictory facts," Boudreaux v. Swift Transp. Co. , Inc., 402 F.3d 536, 540 (5th Cir. 2005), a court is bound to "draw all reasonable inferences in favor ofthe nonmoving party," Reeves v. Sanderson Plumping Prods., 530 U.S. 133, 150, 120 S. Ct. 2097, 2110, 147 L. Ed. 2d 105 (2000); see also Anderson, 477 U.S .
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at 248 (emphasizing the irrelevance of"[a]ny proof or evidentiary requirements imposed by the substantive law," materiality "not a criterion for evaluating the evidentiary underpinning of [factual disputes]"). It thus cannot "make credibility determinations or weigh the evidence." Reeves, 530 U.S. at 150. This command- that a district court "eschew making credibility determination or weighing the evidence," Calhoun v. Johnson , 632 F.3d 1259, 1261 (D.C. Cir. 2011) (citing Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003)); accord, e.g., Flythe v. Dist. ofColumbia, 791 F.3d 13, 22 (D.C. Cir. 2015)- applies so long as the record contains patches of reasonable ambiguity that have not been artificially manufactured. See, e.g. , Tolan v. Cotton, 134 S. Ct. 1861 , 1866, 188 L. Ed. 2d 895 (2014) (per curium) ("[C]ourts may not resolve genuine disputes of fact in favor of the party seeking summary judgment. ").
Under Rule 56, this Court must "give credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses." 9A WRIGHT, supra, § 2529. To wit, although this Court "should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe." Reeves, 530 U.S. at 151 , cited in Havera, 723 F.3d at 591. Within the narrow domain of Rule 56, summary judgment is hence inappropriate (1) ifthere are legitimate, not superficial or frivolous, factual disputes that may affect the outcome of the case under the applicable substantive law, see Anderson, 477 U.S. at 248, and (2) so long as the nonmovant does not exclusively rely on "some metaphysical doubt as to the material facts," "conclusory allegations," "unsubstantiated assertions," or "a scintilla of evidence," Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994). Questions of statutory construction are particularly well-suited for resolution by summary judgment. See, e.g. , Asher v. Am. Home Mortg. Servicing, Inc. (In re Asher), 488 B.R. 58, 64
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(Bankr. E.D.N.Y. 2013); Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993) (citing Oklahoma ex rei. Dep't ofHuman Servs. v. Weinberger, 741 F.2d 290, 291 (lOth Cir. 1983)); Stissi v. Interstate & Ocean Transport Co., 765 F.2d 370, 374 (2d Cir. 1985); FEDERAL JUDICIAL CENTER, THE ANALYSIS AND DECISION OF SUMMARY JUDGEMENT MOTIONS 15 (1991 ).
2. Articles 658 and 899 At the center of this case is Article 658 which creates the system of conditional release,
defined as "[w]hen .. . [a] committed person is released on probation." LA. CODE CRIM. PROC. art. 658A; see also LA. R.S. § 28:58- 59; Harper v. State, 2014-0110 (La. App. 4 Cir. 09/09/15); 176 So . 3d 479, 511 n.8. Pursuant to its first paragraph, "[i]t shall be a condition of every such probation that the person released shall be recommitted if he becomes dangerous to others or to himself for reasons of mental illness, substance abuse, or intellectual disability," and "[t]he probationer" must "be required to agree in writing to the conditions of his probation." LA. CODE CRIM. PROC. art. 658A. Any probationer is placed "under the supervision of the division of probation and parole." !d. art. 658B(l). If"the probationer violates or is about to violate the conditions of his probation, he may be arrested and detained in conformity with the applicable provisions of Article 899." !d. Notably, Probation and Parole must "immediately notify court of any substantive violations or imminent violations of the conditions of a person's probated release and shall present recommendations to the court regarding whether the court should revoke the probation and recommit the probationer to a state mental institution or other recommendations as may be appropriate." !d. art. 658B(5).Thereafter, the court may order the relevant person's arrest but must "immediately hold a hearing to consider the violations listed or transfer the case to the parish of commitment, if different from that of the arrest, at which place the hearing should be
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held as soon as possible." !d. art. 658B(6). No arrest is permitted once an insanity acquitee has been completely discharged pursuant to Article 658D. State ex rei. Reeves v. State, 00-1798 (La. 09/14/00); 768 So. 2d 595, 595.
Incorporated into Article 658, Article 899 sets forth the rules for arrest for a violation of conditional probation. LA. CODE CRJM. PROC. art. 899. In general, " [a]t any time during probation and suspension of sentence the court may issue a warrant for the arrest of a defendant for violation of any ofthe conditions of probation, or may issue a summons to appear to answer to a charge of violation or threatened violation." !d. art. 899A. "The warrant of arrest may be executed by any peace officer [or probation officer] and shall direct that the defendant be returned to the custody of the court or to a designated detention facility"; it must "be personally served upon the defendant. " !d. arts . 899A, 899F. But, "[i]f a probation officer has reasonable cause to believe that a defendant has violated or is about to violate a condition of his probation or that an emergency exists so that awaiting an order of the court would create an undue risk to the public or to the probationer, the probation officer may arrest the defendant without a warrant, or may authorize a peace officer to do so." !d. art. 899B. Regardless of whether Article 899A or 899B has been invoked, "[w]ithin ten days following the arrest of an offender pursuant to the provisions of this Article, the court shall determine if there is probable cause to detain him pending a final violation hearing and shall consider whether to allow the offender bail pending the final hearing." !d. art. 899E. "The determination of probable cause may be made without a formal hearing and may be conducted through the use of affidavits." !d. Even if probable cause is found, a final violation hearing must still be promptly held. !d.
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3. ADAandRA
Under well-established precedent, prisoners may bring claims against their jailors for disability discrimination under Title II of the ADA and Section 504 of the RA. 8 Pa. Dep 't of Corrections v. Yeskey, 524 U.S. 206, 209- 10, 118 S. Ct. 1952, 1954-55, 141 L. Ed. 2d 215 (1998); see also, e.g. , Frame v. City ofArlington, 657 F.3d 215, 224-25 (5th Cir. 2011). Title II prohibits discrimination by "public entities," 42 U.S.C. § 12131 (1 ), and state punitive institutions fall squarely within this statutory definition, Yeskey, 524 U.S. at 210. Typically, a plaintiff proceeding under Title II must "show that: (1) he or she is a ' qualified individual with a disability' ; (2) he or she is being excluded from participation in, or being denied the benefits of some service, program, or activity by reason of his or her disability; and (3) the entity which provides the service, program or activity is a public entity." Douglas v. Gusman, 567 F. Supp. 2d 877, 889 (E.D. La. 2008).
Beyond these general guiding principles, precedent establishes two other cardinal rules. First, while the ADA' s reasonable accommodation requirement does not apply under Title II, its "reasonable modifications" requirement- "A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications
8 Section 504 of the RA protects qualified individuals from discrimination on the basis of disability by entities receiving financial assistance from any federal department or agency. 29 U .S.C. § 794 et seq. Passed in 1973, the ADA expanded upon its protections. Naturally, therefore, the same prima facie case be made by a disabled plaintiff under both acts, Zukle v. Regents ofUniv. ofCal. , 166 F.3d 1041 , 1045 (9th Cir. 1999), and courts readily " examine cases construing claims under the ADA, as well as section 504 of the Rehabilitation Act, because there is no significant difference in the analysis of rights and obligations created by the two Acts," Vinson v. Thomas, 288 F.3d 1145, 1152 n.7 (9th Cir. 2002). As such, the two law' s substantive applicability is not affected by the possibility that DPSC receives no federal money.
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would fundamentally alter the nature of the service, program, or activity," 28 C.F.R. § 35.130(b)(7); 42 U.S.C. § 12182(b)(2)(A)(ii); PGA Tour, Inc. v. Martin, 532 U. S. 661 , 682, 121 S. Ct. 1879, 1893, 149 L. Ed. 2d 904 (2001)- has been held to apply in the prison context. Garrett v. Thaler, 560 F. App'x 375, 382 (5th Cir. 2014). Consequently, while the ADA "does not require prisons to provide new services or programs for disabled prisoners," these same entities "do have an affirmative obligation to make reasonable modifications . . . so that a disabled prisoner can have meaningful access to existing public services or programs." Borum v. Swisher Cnty., No. 2:14-CV-127-J, 2015 U.S. Dist. LEXIS 8628, at *21 , 2015 WL 327508, at *9 (N.D. Tex. Jan. 26, 2015) (emphasis added). Second, the Fifth Circuit has held that a defendant' s failure to make the reasonable modifications necessary to adjust for the unique needs of disabled persons can constitute intentional discrimination under the ADA. See, e.g. , Melton v. Dall. Area Rapid Transit, 391 F.3d 669, 672 (5th Cir. 2004); Garrett v. Thaler, 560 F. App ' x 375, 382 (5th Cir. 2014). A different kind of intent, in other words, governs in ADA cases. See Garrett, 560 F. App 'x at 385.
4. Qualified Immunity Qualified immunity is available when a § 1983 suit is brought against a state official in
his individual capacity, making him or her personally liable for any damages awarded to a plaintiff. 42 U.S.C. § 1983 . "In deciding whether a state official is entitled to qualified immunity, it must first be determined whether a plaintiff successfully alleged facts showing the violation of a constitutional right by state officials." Cohn v. New Paltz Cent. Sch. Dist., 363 F. Supp. 2d 421 , 431 (N.D.N.Y. 2005). "If a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established."
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Saucier v. Katz, 533 U.S. 194,201 , 121 S. Ct. 2151 , 150 L. Ed. 2d 272 (2001).9 For the right to be so classified, its "contours ... must be sufficiently clear that a reasonable official would understand that what he [or she] is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987). " [I]f ... [a] defendant's conduct was objectively reasonable in light of clearly established law at the time of the violation," however, even a right' s status as firmly established will not foreclose qualified immunity' s invocation. Dorsett-Felicelli v. Cnty. ofClinton, 371 F. Supp. 2d 183, 193 (N.D.N.Y. 2005). Perhaps unsurprisingly, this inquiry regarding whether a defendant' s actions were objectively reasonable, which is commenced only upon proof of a right's positive existence, has been described as " a fact-intensive inquiry" ill-suited for ultimate resolution via Rule 56. !d. ; see also, e.g. , Sales v. Barizone, No. 03 Civ. 6691RJH, 2004 WL 2781752, at *16 (S.D.N.Y. Dec. 2, 2004).
B. APPLICATION 1. Plaintiff's MSJ
Bound by the foregoing law, this Court must deny Plaintiffs request for summary judgment for two reasons.
First, Articles 658 and 899 cannot be deemed to be constitutionally infirm as a matter of undisputed constitutional law. Undeniably, as Plaintiff now asserts, (Doc . 42 at 19), "commitment for any purpose constitutes a significant deprivation of liberty that requires Due Process Protection." Jones v. United States, 463 U.S. 354, 361 , 103 S. Ct. 3043, 3048, 77 L. Ed. 2d 694 (1983); see also Welsch v. Likins, 373 F. Supp. 487, 499 (D. Minn. 1974). As such,
9 Despite the language in Saucier, this two-part analysis need not proceed sequentially, and the order may be readily reversed depending on the case' s peculiar circumstances. Pearson v. Callahan, 555 U.S. 223 , 236, 129 S. Ct. 808, 818, 172 L. Ed. 2d 565 (2009); L.A . Cnty. V. Rette/e, 550, U.S. 609, 616, 127 S. Ct. 1898, 1994, 167 L. Ed. 2d 974, (2007) (per curium).
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"indefinite commitment of a criminal defendant solely on account of his incompetency to stand trial" cannot be "square[d) with the Fourteenth Amendment's guarantee of due process." Jackson v. Indiana, 406 U.S. 715, 731,92 S. Ct. 1845, 1855,32 L. Ed. 2d 435 (1972). However, under the Constitution, "it is always true of probationers (as we have said it to be true of parolees) that they do not enjoy the absolute liberty to which every citizen is entitled, but only ... conditional liberty properly dependent on observance of special [probation] restrictions." Griffin v. Wisconsin, 483 U.S. 868, 874, 107 S. Ct. 3164,3169,97 L. Ed 709 (1987) (internal quotation marks omitted) (relying on Morrissey v. Brewer, 408 U.S. 471 , 480, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484 (1972)). To pass constitutional muster, the conditions of supervised release or conditional probation "must be reasonably related to the history and characteristics of the defendant and must impose no greater deprivation of liberty than reasonably necessary to deter criminal conduct and protect the public." United States v. Knight, 86 F. App 'x 2, 4 (5th Cir. 2003). Indeed, rehabilitation is not the sole goal; the public's protection is an equally weighty and occasionally overriding one. See, e.g. , United States v. Bartels, 962 F.2d 558, 560 (6th Cir. 1992); accord United States v. Balderas, 358 F. App'x 575, 579 (5th Cir. 2009). In addition, while the termination of such person's liberty "calls for some orderly process, however informal," only "some informal procedural guarantees" are required. Morissey, 408 U.S. at 482. In particular, the Due Process Clause is satisfied when a preliminary hearing takes place near the time of the parolee' s arrest and detention so as "to determine whether there is probable cause or reasonable ground to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions." Henderson v. Simms, 223 F.3d 267, 274 (4th Cir. 2000).
Acknowledging this jurisprudence, court after court has refused to declare as unconstitutional statutes that authorize the arrest of a person found NGRI upon his or her
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violations of the conditions of his or her release, assuming any such recommission is ultimately reviewable by a court oflaw. See, e.g., Archuleta v. Hedrick, 365 F.3d 644, 648 (8th Cir. 2004); Phelps v. United States, 831 F.2d 897, 898 (9th Cir. 1987). Indeed, the constitutionality of a federal statute so allowing has been repeatedly upheld, see, e.g., 18 U.S.C. §§ 4243(g), 4246; Cochran v. Dysart, 965 F.2d 649, 649 (8th Cir. 1992), as have been several states' own conditional probation strictures, see, e.g., Grass v. Reitz, 643 F.3d 579 (8th Cir. 2011). Pursuant to this extensive jurisprudence, as any arrest under Articles 658 and 899 is subject to judicial review, see supra Part II.A.2, neither provision can be deemed facially unconstitutional. LA. CODE CRIM. PRoc. arts. 658, 899E. Like their federal equivalent, these articles systemize a program for conditional release and contain both a "statutory procedure" and "a substantive standard" that, in the words of another circuit, "are clearly constitutional." Archuleta, 365 F.3d at 648; cf Taylor v. San Diego Cnty., 800 F.3d 1164, 1170 (9th Cir. 2015) (affirming the constitutionality of a conditional release statute, the Sexually Violent Predator Act, for it did "not create a capricious custody scheme in violation of equal protection tenets").
Second, several questions of material fact render it impossible to conclude that Defendants unquestionably and necessarily violated the ADA. Generally, "[t]he ADA prohibits discrimination because of disability, not inadequate treatment for disability." Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1022 (9th Cir. 2010). Thusly interpreted by sundry courts, the ADA is not violated by a prison failing to attend to the medical needs of its disabled prisoners. Grzan v. Charter Hosp. ofNw. Ind., 104 F.3d 116, 121 , 123 (7th Cir. 1997) (as to Section 504); Bryant v. Madigan, 84 F.3d 246,249 (7th Cir. 1996) (as to the ADA); see also, e.g., Kiman v. NH Dep 't ofCorr., 451 F.3d 274, 284 (1st Cir. 2006). Furthermore, under the ADA, a demand for "reasonable accommodations to assure access to an existing program" is cognizable, but a
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demand for "additional or different substantive benefits" is not. Wright v. Giuliani, 230 F.3d 543 , 548 (2d Cir. 2000). Finally, whether a covered entity has failed to interact in good faith and thus failed to reasonably accommodate a qualified individual is considered an ineradicably factual query, one that can often preclude summary judgment. See Lowe v. Indep. Sch. Dist. No. 1, 363 F. App 'x 548, 552 (lOth Cir. 2010) (as to an employer).
Unfortunately for the success of Plaintiffs MSJ, these principles may yet exempt them from liability in this proceeding. As the apparent facts alone suggest, Defendants' failure to provide Plaintiff with adequate mental health care related not to his disability but the state' s limited resources and his seeming danger to the broader public. (Doc. 103-2 ,-r 35 at 8; Doc. 74-3 at 2; Doc. 76-21 at 3-4.) In fact, even Plaintiff concedes his behavior was "threatening" and his "outbursts" frequent. (See, e.g. , Doc. 1 at 11.) As such, for a certain reasonable factfinder, Plaintiffs confinement could still be viewed as based not on an intentional disregard for his disability but on an increasingly violent pattern of conduct for which the state' s existing facilities at the time of his outbursts were insufficient or unavailable. If a jury so believes, no discrimination under the ADA could be proved, Plaintiffs non-accommodation the product of something besides the ADA's forbidden motive. Cf Emmett v. Kwik Lok Corp. , 528 F. App ' x 257, 261 (3d Cir. 2013) ("[T]he factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.").
Similarly, it is presently impossible to conclude that Defendants treated Plaintiff any differently than others determined to be NGRI and who pose a seeming danger to the public and lack the means to obtain private treatment. (See Doc. 94 at 4.) Had such incontrovertible evidence been presented, liability may have been inescapable, for Defendants' failure to accommodate a deeply sick man would have been predicated purely on their intent to
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discriminate against this state' s disabled. For now, however, other reasons, including purported concerns for the public' s safety, may explain Defendants' actions. Thus, no such liability can be found as a matter of unquestionable law and fact. Accordingly, genuine issues of fact and law persist, and summary judgment cannot issue.
B. Defendants' MSJ With one ostensible exception,10 Defendants' multipronged MSJ contains similar
evidentiary issues. First, Defendants read the doctrine of sovereign immunity too broadly. True, Section
1983 did not obviate the states' sovereign immunity, as guaranteed by the Eleventh Amendment.11 However, as permitted by precedent, Ex parte Young, 209 U.S. at 152; accord Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508, 530 n.24 (1st Cir. 2009), Plaintiff is suing certain Defendants in their official capacities for injunctive relief as to his constitutional claims, (See, e.g. , Doc. 1 at 13; Doc. 42 at 19; Doc. 74-3 at 8- 9). Other defendants, from Tubbs to Vosburg, were directly and personally involved in his confinement; as a matter of law, they can be sued in their individual capacities. See, e.g., Hafer v. Melo , 502 U.S. 21 , 29- 30, 112 S. Ct. 358, 363 , 116 L. Ed. 2d 301 (1991 ); Scheuer v. Rhodes, 416 U.S. 232, 237, 94 S. Ct. 1683, 1687, 40 L. Ed. 2d 90 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S . 183, 104 S. Ct. 3012, 82 L. Ed. 2d 139 (1984).
10 By denying the Plaintiff's MSJ, see supra Part liLA, this Court has, in effect, endorsed Defendants' argument about the facial constitutionality of Articles 658 and 899. Whether these laws, as applied, violate the Plaintiffs constitutional rights is a separate issue. 11 No such bar applies to the Plaintiff's ADA claims. United States v. Georgia, 546 U.S. 151 , 159, 126 S. Ct. 877, 881 , 163 L. Ed. 2d 650 (2006). This Court notes that this confusion may have been the result of Plaintiffs drafting. (See Doc. 42 at 2.)
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Moreover, as the Complaint intimates, Plaintiff has advanced a theory of liability predicated on Monell v. Dep 't ofSocial Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), a long-recognized exception to various state actor' s otherwise broad immunity from suit. See, e.g , Owens v. Bait. City State 's Attys. Office, 767 F.3d 379, 402- 03 (4th Cir. 2014); see also, e.g , Bd. ofCnty. Comm 'rs v. Brown, 520 U.S. 397, 404, 117 S. Ct. 1382, 1388, 137 L. Ed. 2d 626 (1997). He has alleged- and Articles 658 and 899 readily bear this out- that Defendants, individually and collectively, followed a policy in which disabled persons subject to conditional release were incarcerated without regard for their proven medical needs, (See, e.g , Doc. 1 at 14; Doc. 42 at 17- 18.) Assuming this allegation can be proven, the Eleventh Amendment would pose no hurdle to this suit's success.
Second, Defendants' qualified immunity cannot, as of yet, be firmly established. Unquestionably, this doctrine shields defendants from liability if a constitutional right is not clearly established and their actions are objectively reasonable. See supra Part II.A.4. Yet, for two reasons, Defendants have sought to invoke it too early. First, if the constitutional right is clear and it has been violated, no immunity rightly attaches, see, e.g , Beers-Capitol v. Whetzel, 256 F.3d 120, 142 n.15 (3d Cir. 2001 ), and invocation of state law will not absolve any official of blame for such unconstitutional misconduct, cf Hollihan v. Pa. Dep 't ofCorr., No. 3: 15-CV5, 2016 U.S. Dist. LEXIS 6318, at *21 , 2016 WL 235003 , at *8 (M.D. Pa. Jan. 20, 2016). Here, as precedent declares, "commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection," and "[t]he Due Process Clause requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed." Jones, 463 U.S. at 368. Because violation of this very right girds
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Plaintiffs constitutional arguments, qualified immunity cannot be rightfully claimed at the summary judgment stage.
Second, establishing whether a defendant' s actions were objectively reasonable is
uniformly described as "a fact-intensive inquiry." Sales, 2004 WL 2781752, at *16. As a
consequence, courts have therefore been unsurprisingly reluctant to find qualified immunity
applicable on summary judgment. See, e.g., Dorsett-Felicelli, 371 F. Supp. 2d at 193 Y So far,
having assembled much credible evidence, Plaintiff has alleged that Tubbs, Sparks, and others
fully knew (or should have known) ofthe medical consequences ofhis disability and that
LeBlanc, Gee, and Gibbs knowingly enforced a system dedicated to imprisonment rather than
treatment, thereby ignoring the body of law spawned by Jones. If this reasonably colorable contention is later believed and Defendants ' protestations to the contrary are disbelieved, a jury
may yet find none of Defendants' actions to be objectively reasonable. As long as that reasonable possibility remains, no Defendant may enjoy the privilege of qualified immunity at the summary judgment stage. .
Third, Defendants predicate their motion upon an unduly narrow reading of the ADA. To "win" his disability case at this stage, Plaintiff needed to show no more than that a reasonable
jury could conclude that his sundry disorders rendered him disabled, that his disability substantially impaired his ability to perform a wide class of positions, and that Defendants failed
to provide him with a reasonable accommodation. Chambers ex ref. Chambers v. Sch. Dist. of
12 For this same reason, this Court denies Defendants' request that Plaintiffs claim for punitive damages be dismissed. Quite simply, the evidence presented could allow a reasonable jury to find that Defendants' conduct and/or policy was animated by a callous and reckless indifference to the due process rights of a person adjudicated NGRI. According to Plaintiff, he was denied mental health care with no legal or factual justification and never afforded the kind of care and accommodation to which the law entitles him. It remains reasonably possible that a jury could find this approach to a deeply troubled man for whom Defendants were obliged to provide care, resulted from the kind of callousness that punitive damages are intended to punish.
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Phi/a. Bd. ofEduc., 587 F.3d 176, 189 (3d Cir. 2009). So long as the factual evidence so far assembled can support these allegations, Rule 56 compels the denial of the Defendants' MSJ as to Plaintiffs ADA claim.
Here, two facts, attested to by the existing record, show why such denial must follow. First, Plaintiffs mental state left him unable to live successfully without consistent treatment and medical supervision. Crucially, this need for a particular medical regimen appears in documents produced and accessed by CFS, DHH, Tubbs, and others; indeed, the state court itself made extensive and expansive medical treatment an explicit term of Plaintiffs conditional release. See supra Part II.A. Whether ignored in favor of a more punitive policy or pure happenstance, ample evidence of Plaintiffs perilous condition and his certain needs lay, ready and clear, in multiple files of the Defendants.
Second, despite this fact, Tubbs and Starks sent Plaintiff to prisons in which he did not receive this essential treatment and did so pursuant to a state statute. Regardless of these persons ' precise reason, and despite DHH's responsibility over these matters, LA. CODE CRIM. PROC. art. 658B(2), Plaintiff was deposited in a prison in which such services were unavailable. Even if overwhelmed, other facilities that do provide such services arguably existed. See supra Part II.A. Certainly, even if such other entities could not accommodate Plaintiff, the ADA would still have been violated by such deliberate actions, for it requires "reasonable accommodations to assure access to an existing programs." Wright, 230 F.3d at 548 (emphasis added).
One more arguable violation merits emphasis. Pursuant to the ADA, "[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service,
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program, or activity," 28 C.F.R. § 35.130(b)(7); 42 U.S.C. § 12182(b)(2)(A)(ii); PGA Tour, Inc., 532 U.S. at 682. Material issues of fact exist as to whether such reasonable and necessary modifications were available and should have been made. In sum, if a reasonable jury found Plaintiffs allegations to be true, Defendants may rightly be found liable under the ADA. Defendants' motion for summary judgment on this issue must therefore be denied.
IV. CONCLUSION As the record in this case reveals, with discovery complete and on the eve of trial on the
merits, much remains unsettled, and genuine issues of material fact continue to be unresolved . Indeed, only one dispute can truly be decided: based on well-settled jurisprudence, Articles 658 and 899 must be declared facially constitutional. Accordingly, for these reasons, this Court DENIES the Plaintiffs Motion for Partial Summary Judgment, (Doc. 76), and the Defendants' Motion for Summary Judgment, (Doc. 74).
Signed in Baton Rouge, Louisiana, on June 23, 2016.
JUDGE JOHN W. deGRAVELLES UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA
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 Case 3:14-cv-00338-JWD-RLB Document 144 07/06/16 Page 1 of 4

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

TRUSSELL GEORGE, JR.
v.
LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS ET AL.

Case No. 3:14-cv-00338
JUDGE JOHN W. deGRAVELLES
MAGISTRATE JUDGE RICHARD L. BOURGEOIS, JR.
JURY TRIAL

JURY VERDICT FORM

FIRST CLAIM - DISCRIMINATION IN VIOLATION OF TITLE

II OF THE AMERICANS WITH DISABILITIES ACT AND

SECTION 504 OF THE REHABILITATION ACT BY

LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS

("DHH")

INTERROGATORY Number la

Did Defendant, ? H , discriminate against Plaintiff because of his

disabilities?

_ _ _ Yes

No

(Regardless of your answer, proceed to Interrogatory Number lb.)

INTERROGATORY Number lb Did Defendant, DHH, fail to provide Plaintiff with a reasonable

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Case 3:14-cv-00338-JWD-RLB Document 144 07/06/16 Page 2 of 4

modification appr~te for his disabilities?
_ _ _ Yes V No

(If you answered "Yes," proceed to Interrogatory Number lc. If you answered "No," proceed to Interrogatory Number 2a.)

INTERROGATORY Number lc

Has Defendant, DHH, proved that it would have been an undue

hardship for it to provide Plaintiff with a reasonable modification

appropriate for his disabilities?

_ _ _ Yes

No

(Regardless of whether you answered "Yes" or "No," proceed to Interrogatory Number 2a .)

SECOND CLAIM - DISCRIMINATION IN VIOLATION OF TITLE II OF THE AMERICANS WITH DISABILITIES ACT AND SECTION 504 OF THE REHABILITATION ACT BY LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS ("LDPSC") INTERROGATORY Number 2a Did Defendant, LDPSC, discriminate against Plaintiff because of his disabilities? . /
- - - Yes V No
(Regardless of your answer, proceed to Interrogatory Number 2b.)

INTERROGATORY Number 2b Did Defendant, LDPSC, fail to provide Plaintiff with a reasonable modification appropnate for his disabilities? _ _ _ Yes \L No

(If you answered "Yes," proceed to Interrogatory Number 2c. If you answered "No," then go to the

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Case 3:14-cv-00338-JWD-RLB Document 144 07/06/16 Page 3 of 4

highlighted instructions that appear after Interrogatory Number 2c.)

INTERROGATORY Number 2c

Has Defendant, LDPSC, proved that it would have been an undue

hardship for it to provide Plaintiff with a reasonable modification

appropriate for his disabilities?

_ _ _ Yes

No

(If you answered,
1. "Yes" to Interrogatory Number 1a; or
2. "Yes" to Interrogatory Number 1b and "No" to
Interrogatory Number 1c; or 3. "Yes" to Interrogatory Number 2a; or
4. "Yes" to Interrogatory Number 2b and "No" to Interrogatory Number 2c

Proceed to Interrogatory Number 3.

Otherwise, STOP, sign and date the Jury Verdict Form, and alert the CSO.)

COMPENSATORY DAMAGES UNDER TITLE II OF THE

AMERICANS WITH DISABILITIES ACT AND SECTION 504

OF THE REHABILITATION ACT

INTERROGATORY Number 3:

Do you find that the Plaintiff's incarcerations in 2013 and/or 2014

caused him damage?

_ _ _ Yes

No

(If you marked "Yes," please proceed to Interrogatory Number 4. If you answered "No," then STOP, sign and date the Jury Verdict Form, and alert the CSO.)

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Case 3:14-cv-00338-JWD-RLB Document 144 07/06/16 Page 4 of 4

INTERROGATORY Number 4 What amount will compensate Plaintiff for the damages, if any, he suffered as a result of the Defendant(s)' violation of the Americans with Disabilities Act and/or Rehabilitation Act?
Answer in dollars and cents for the following items and none other:
1. Past bodily harm, pain and suffering , inconvenience, mental anguish, and enjoyment of life.
AMOUNT $_ _ __
2 . Future pain and suffering, inconvenience, mental anguish, and loss of enjoyment of life.
AMOUNT $_ _ __

(If you inputted any sum, please proceed to Interrogatory Number 5.)

INTERROGATORY Number 5 If you found either or both Defendants liable and awarded the Plaintiff any compensatory damages, how do you allocate the
percentage of fault between the two Defendants?

- - - - 0/o - - - - 0/o _ _ _ 0/o

LDPSC DHH Total (must be 100°/o).

(Please sign the verdict form and hand it in.)

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 Case 3:14-cv-00338-JWD-RLB Document 160 09/06/17 Page 1 of 29

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

___________________________________

TRUSSELL GEORGE, by and through *

his Guardian Ad Litem,

*

LETITICA WALKER,

*

*

PLAINTIFF

*

*

*

VS.

*

*

*

LOUISIANA DEPARTMENT OF

*

PUBLIC SAFETY AND

*

CORRECTIONS, et al.,

*

*

DEFENDANTS.

*

____________________________________*

CIVIL ACTION NO. 3:14-00338 JWD-RLB

PLAINTIFF’S MEMORANDUM OF LAW IN RESPONSE TO THIS COURT’S AUGUST 23, 2017, ORDER AND IN SUPPORT OF
DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION Plaintiff Trussell George submits this memorandum in response to the questions posed by this Court in its August 23, 2017, order and in support of his request for injunctive and declaratory relief. QUESTION 1: WERE THE PROVISIONS OF LOUISIANA CODE OF CRIMINAL PROCEDURE ARTICLES 658(B)(1) AND 899(B) COMPLIED WITH IN THE COURSE OF THE JULY 2013 AND JULY 2014 INCIDENTS SUED UPON? Louisiana Code of Criminal Procedure Articles 658(B)(1) and 899(B) have both substantive and procedural components. As will be discussed in the following sections, Defendants were acting in a manner permitted by the statutes’ substantive provisions when they arrested, or had Mr. George arrested, in 2013 and 2014. However, Defendants failed completely
1

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to comply with the statutes’ procedural requirements. It is Mr. George’s position that since Articles 658(B)(1) and 899(B) authorized his arrest and incarceration even though at the time he was not being charged with, and had not been convicted of any crime relevant to his arrest, they are unconstitutional, and that even if Defendants had complied with the statutes’ procedural components, the constitutional defect would not have been cured.
DEFENDANTS COMPLIED WITH THE SUBSTANTIVE PROVISIONS OF LOUISIANA CODE OF CRIMINAL PROCEDURE ARTICLES 658(B)(1) AND 899(B). Given the broad sweep of the statutes, Mr. George contends that his arrest was authorized by Louisiana Code of Criminal Procedure Articles 658(B)(1) and 899(B), which, on their face, permit the arrest and incarceration in a parish jail of a person found Not Guilty by Reason of Insanity (NGRI) who is living in the community on conditional discharge. Under Louisiana’s NGRI statute, an individual charged with a criminal offense is exempt from criminal responsibility for his behavior when “the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question.” La. R.S. 14:14. The exemption from criminal responsibility contemplated by La. R.S. 14:14 is contradicted by the plain language of Articles 658(B)(1) and 899(B), which permit a person acquitted by NGRI (“NGRI Acquittee”) to be arrested and incarcerated merely on a probation officer’s “reasonable cause to believe that a defendant has violated or is about to violate a condition of his probation….” Articles 658(B)(1) and 899(B) afford the probation officer broad, unchecked authority to arrest an NGRI Acquittee: they do not require the NGRI Aquittee to have committed, nor be charged with, a crime; do not require a determination of whether the NGRI Acquittee is a danger to himself or others; do not require the arresting officer to weigh the nature and significance of the condition of release in
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determining whether arrest is warranted; and do not factor in whether the violation is directly the result of the NGRI Acquittee’s mental illness.1 La. Code Crim. P. art. 899(B).
Under our Constitution, “[d]ue process requires that the nature and duration of commitment bear some reasonable relationship to the purpose for which the individual is committed.” Jackson v. Indiana, 406 U.S. 715, 738 (1972). In this context, the breadth of the statutes which authorized Mr. George’s arrest and incarceration are constitutionally problematic for two reasons, even though the statutes also require notice to the court and an opportunity for a hearing. First, Mr. George’s conditional release, upon which his arrests and incarcerations were predicated, was not the result of a criminal conviction and his arrests and incarcerations were not the result of having been charged with criminal behavior; rather it was the result of a determination by a state court judge that Mr. George needed monitoring and treatment for his mental illness and developmental disabilities.2 Second, unlike probation or parole following a criminal conviction (and often some jail time), Mr. George’s conditional release was not an extension of the penalties imposed for having been convicted of a crime; rather Mr. George had been found “Not Guilty,” albeit “by reason of Insanity.”3

1

Other than a “cause to believe” that Mr. George “has violated or is about to violate a condition of his

probation,” the statute sets no limits on the authority of a probation officer to arrest and incarcerate an NGRI

Acquittee on conditional release. Thus, the breadth of these statutes clearly pose a substantial risk that Mr. George

could be arrested and incarcerated in a parish jail for a host of minor infractions, including the failure to follow the

treatment recommendations prescribed by his treating physician, the failure to “comply and cooperate with sessions

of counseling and/or treatment, oral and/or injectable medications as ordered by the attending physician”; the failure

to report to the local probation office within twenty-four (24) hours of release from jail, excluding non-business

days; the failure to sign all consents for release of information forms; and the failure to “refrain from the

consumption of alcohol.” Trial Stipulation ¶ 3, Pl.’s Ex. 1, TG000001–02.

2

In ordering a conditional release, the court “shall subject a conditionally released insanity acquittee to such

orders and conditions it deems will best meet the acquittee's need for treatment, supervision, and monitoring and

will best serve the interests of justice and society.” La. Code Crim. P. art. 657.1(B).

3

It is not Mr. George’s position that La. Code Crim. P. Art. 899 is unconstitutional as to convicted criminals

on probation. In that situation, the individual has been found guilty of a crime, and probation is simply an extension-

- a less restrictive extension-- of his sentence. It is, however, Mr. George’s position that to the extent that they

authorize the release and incarceration for violations of conditional release, the combined provisions of La. Code

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In authorizing the arrest and incarceration of individuals on conditional release for merely violating terms of their release, Articles 658(B)(1) and 899 create a substantial risk that Mr. George and other individuals with mental illness and developmental disabilities will be incarcerated for behavior which should be addressed in a treatment setting that is designed especially to cater to the needs of individuals like Mr. George.4 For example, Progressive Health Care Providers (PHP) the group homes where Mr. George resided in 2013 Intermediate Care Facilities for People with Developmental Disabilities (“ICF-DDs”), overseen by Louisiana’s Department of Health and Hospitals’ Developmental Disabilities Services System to provide an array of services to individuals who have developmental disabilities and mental illness. Martinez Test., Trial Tr. vol. 1, p. 30-36. Such services include mental health services, a day activities program, and a Behavioral Support Plan to address behaviors that are a manifestation of individuals’ disabilities. Martinez Test., Trial Tr. vol. 1, p. 30-36 June 26, 2016; Hope Test., Trial Tr. vol. 2, p. 181-82 June 27, 2016.
Significantly, these programs are specifically designed to address the very issues that led to Mr. George’s arrest. According to his Behavioral Support Plan, Mr. George’s mental illness caused him on some occasions to engage in verbal aggression and non-compliance within the group home and the day program he attended during the week. Martinez Test., Trial Tr. vol. 1, p. 33; Hope Test., Trial Tr. vol. 2, p. 181-182. His Behavioral Support Plan notes that when his

Crim. P. arts. 658 (B) and Art. 899 are unconstitutional as to NGRI Acquittees on conditional release. In such cases, there is no punishment nor sentence. To the extent such individuals are subject to confinement, it must be solely for the purpose of treatment.

4

Mr. Tubbs testified that he has moved to arrest and incarcerate 12-18 persons for violating terms of their

conditional releases. Tubbs Test., Trial Tr. vol. 1, 84, 6/27/16. This is true despite the fact that there are options

under Louisiana law other than arrest and incarceration where an acquittee violates the terms of conditional release.

If a person on conditional release or otherwise probated under the aforementioned code provisions is in need of

acute, i.e. short-term, hospitalization and is not charged with a new criminal offense, he may be voluntarily admitted

pursuant to La. R.S. 28:52 or admitted by emergency certificate pursuant to La. R.S. 28:53 to the Feliciana Forensic

Facility or to another suitable treatment facility, with subsequent notice to the court. La. Code Crim. P. art.

658(B)(4).

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medication is incorrect, he may engage in outbursts and so-called “threatening” episodes.
Plaintiff’s Exhibit 17, TG000151–153. At no point does his Behavioral Support Plan call for him
to be punished in any way for the behaviors caused by his disabilities. Id.
The evidence at trial overwhelming shows that the kinds of behaviors exhibited by Mr.
George are not in the least unusual in the ICF-DD group home environment, where six to eight
men with mental illness and developmental disabilities are living and interacting in very close
quarters with one another in order to receive services appropriate to their disabilities. Hope Test.,
Trial Tr. vol. 2, p. 182. According to Ms. Martinez:
Q So let me draw your attention to -- well, going, again, to July 2013 and before, did you ever observe Trussell being aggressive with staff; and if so, could you describe what that means?
A I wouldn't use the word "aggressive." Physically aggressive, no. I have observed Trussell fussing, yelling at staff, yelling happens at my house regularly, so I – it wasn't to the point of -- six to eight people living in the same home together, if you want to do something and the staff's not paying attention: oh, you're not listening to me. It's – I never saw him in an aggressive manner, though, no. Argumentative, absolutely. He's a grown man, though, living with other grown men, who might all be arguing. That is absolutely nothing unusual in a group home.
Q What about -- what about threatening, did you ever see him be threatening to anybody?
A Yes. I can – I can think of one time and I believe that all four of the residents were threatening each other to take this, do that. Again, it was not -- it's nothing unusual in a group home for those type of things to happen. And then ten minutes later, they're all drinking a coke together.
Unfortunately, Articles 658(B)(1) and 899 give license to state officials to use the
criminal justice system as a substitute for the provision of mental health care in difficult cases.
Under the plain language of these statutes, state officials have the power to arrest an NGRI
Acquittee, like Mr. George, even when he has not committed or been charged with a criminal
act. Prior to the 2013 arrest, the Defendants were well aware of Mr. George’s mental health
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needs and recognized that the more appropriate setting for a person exhibiting his symptoms would have been a hospital. However, other than briefly and unsuccessfully attempting to place Mr. George at ELMHS, they did nothing to ensure that he was placed in a facility where he could receive the mental health treatment he needs. Tubbs Test., Trial Tr. vol. 1, pgs. 84, 86-87.
It is clear, however, that there were other options besides parish jail available to the Defendants. Instead of incarcerating Mr. George, Defendants could have voluntarily admitted him to Feliciana Forensic Facility pursuant to La. R.S. § 28:52 or admitted him by emergency certificate pursuant to La. R.S. § 28:53., If Feliciana was unavailable, Defendants had the option to admit Mr. George to another suitable treatment facility, with subsequent notice to the court. La. Code Crim. P. art. 658(B)(4). In the alternative, they could have sought a court order pursuant to La. Code Crim. P. art. 658(C) to intensify Mr. George’s supervision, to modify or add additional conditions to the probation, including enhanced mental treatment. As a last resort, Defendants could have moved to revoke Mr. George’s probation and recommit him to a state mental institution. Any of these alternatives, all of which were available to Defendants, would have been less restrictive than incarcerating Mr. George.
Similarly, in 2014, even though Mr. George was already at ELMHS, and there was clearly available space, including the placement he was already occupying, Defendants opted to have him arrested. The testimony establishes that this decision was made largely because Defendants viewed it as an appropriate punishment for refusing the placement option they had proposed. See Plaintiff’s Exhibit 13 (“This staffing was to inform Mr. George that he would either have to accept placement in the Civil Division or we would pursue revocation, and he would probably have to go to jail first. [He] became very angry and ultimately we had to call his probation officer, and he was taken back to the jail.”). The primary reason for incarcerating Mr.
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George was not therapeutic but punitive. It is also a reflection of the limited placement options available at ELMHS. As Dr. Kelly admitted:
Q You have. And in the conditions of release anywhere, is there a reference to if Mr. George doesn't comply he gets sent to jail? A I don't think it's quite stated in those terms, but, I mean, it's -- it's -- if they don't comply, they may be revoked and sent back to the forensic hospital. Q Oh, so he could be sent back to a hospital? A Yes. Q And that's referenced in the conditional release; isn't that right? A Yes. Q But jail's not mentioned, is it? A Well, if you're not guilty by reason of insanity and you're in a group home and you're out in the community and you-- you know, the forensic coordinator is called because the patient is acting out, they often end up in jail because there's no bed in the forensic division. I mean, that's why we're here today. Kelly Test., Trial Tr. vol. 2, pgs. 103-04.
DEFENDANTS VIOLATED THE PROCEDURAL REQUIREMENTS OF LOUISIANA CODE OF CRIMINAL PROCEDURE ARTICLES 658(B)(1) AND 899(B). As this Court noted in its August 23, 2017, order, in the event that a probation officer intends to arrest or cause the arrest of a NGRI Acquittee, Louisiana Code of Criminal Procedure Article 658(B)(5) requires the division of probation and parole, or the Louisiana Department of Health through the conditional release program coordinator, “to immediately notify the court of any substantive violations or imminent violations of the conditions of a person’s probated release and present recommendations to the court regarding whether the court should revoke the probation and recommit the probationer to a state mental institution or other recommendations as may be appropriate.” Article 658(B)(6) further requires the court, upon receiving a report
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recommending revocation or other disposition from the conditional release program coordinator, to “immediately hold a hearing to consider the violations listed or transfer the case to the parish of commitment, if different from that of the arrest, at which place the hearing should be held as soon as possible.”
Article 899(B) dictates that, following an arrest of an NGRI Acquittee for an alleged violation of a condition of release, the probation officer “shall immediately notify the proper court of the arrest and shall submit a written report showing in what manner the defendant violated, or was about to violate a condition of his probation.”
It is Mr. George’s position that these procedural requirements were not complied with in connection with either the July 2013 or July 2014 incidents at issue in this case. It also Mr. George’s position that even if these procedures were followed his rights under the constitution were violated, since Articles 658(B)(1) and 899(B) permit his arrest and incarceration even when no criminal charges are involved.
1. The July 2013 arrest. Even assuming there was reasonable cause to believe in 2013 that Mr. George had violated or was about to violate a condition of his “probation” or that an emergency existed, Defendant Tubbs did not comply with the procedural requirements of La. Code Crim. P. art. 658(B). Under that statute, a probation officer is required to “immediately notify the proper court” of an arrest and submit a “written report showing in what manner the defendant violated, or was about to violate, a condition of his probation.” La. Code Crim. P. art. 658(B). Defendant Tubbs did not submit the “written report” to request a court hearing until August 12, 2013, two weeks after Mr. George’s July 2013 arrest. Plaintiff’s Exh. 11; Tubbs Test., Trial Tr. vol. 1, p. 22.
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On August 22, 2013, twenty-five (25) days after his arrest, Mr. George finally had a hearing in the Nineteenth Judicial District Court in Baton Rouge, after which he was ordered to be released from jail and provided with mental health treatment. Brady Test., Trial Tr. vol. 2, p. 22.
2. The July 2014 arrest. Mr. George’s 2014 arrest was also procedurally deficient. While the East Baton Rouge Sheriff’s Office was given a written notice that Mr. George was to be incarcerated in the East Baton Rouge Parish Prison in July 2014, Plaintiff’s Exhibit 20, there is no evidence that any notice was provided to the presiding state court. In 2014, Mr. George remained in jail for 55 days, until August 25, 2014. Trial Stipulations, Plaintiff’s Exh. 24 at ¶¶ 19-20.

QUESTION 2: WHAT WERE THE REASONS FOR AND CIRCUMSTANCES SURROUNDING PLAINTIFF’S RELEASE FROM THE EAST BATON ROUGE PARISH PRISON ON AUGUST 23, 2013?

This Court asked to be pointed to evidence produced at trial that explains why and how

Mr. George was released from jail in 2013. Except for the testimony of Stephanie Hope, the trial

record does not fully reflect the circumstances surrounding Mr. George’s release.5 The record

shows that, on August 22, 2013, there was “a probation revocation hearing in front of the Judge”

and the judge ordered Mr. George’s release from jail. Brady Test., Trial Tr. vol. 2, 21. As Ms.

Hope testified:

Q What happened at the court hearing?

5

The documents filed with this court in support of Plaintiff’s Motion for Summary Judgment show that this

hearing was held and the order was issued after Mr. George filed a Writ of Habeas Corpus challenging his

incarceration. The Writ was filed on August 20, 2013. Pl.’s Ex. 3 at 162:13–25, 163:1–22, 178:17–25, 179:1–25,

180:1–13; Pl.’s Ex. 10.

The Summary Judgment documents also show that in on July 14, 2014, Mr. George, through counsel, filed a motion requesting the state district court to schedule a hearing on Mr. George’s arrest. Plaintiff’s Summary Judgment Exh. 12. When the court did not respond to that request, Mr. George again filed a Petition for Writ of Habeas Corpus. Id.

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A I talked to the judge. I'm not sure what they call it, but we were able to come up to where the judge sits to have a conversation off the -- I guess off-the-record, I don't know that any notes were taken, and I just told him I was Director of Operations of the group home where Trussell lived. I believed that Trussell had been incarcerated because my staff were incompetent, they had called the probation officer when there really wasn't a need to call the probation officer. Those were Trussell's normal behaviors, and he was incarcerated and that Trussell was mentally ill and he needed treatment and, in my opinion, jail wasn't where he needed to be. Q And was he released that day? A The judge released him that day. Hope Test., Trial Tr. vol. 2, p. 192-93. QUESTION 3: A) WERE THERE REQUESTS FOR STATE COURT HEARINGS, AND B) WERE STATE COURT HEARINGS HELD IN CONNECTION WITH MR. GEORGE’S CASE, AND IF SO, WHAT WERE THE DATES OF EACH, THE CIRCUMSTANCES CAUSING OR LEADING UP TO THE HEARINGS, THE SUBSTANCE OF THE HEARINGS, AND THE OUTCOME OF THOSE HEARINGS?
During the course of the proceedings in this case, there were a number of hearings held concerning Mr. George’s conditional release. The evidence shows that, on June 10, 2013, one and a half months prior to Mr. George’s arrest, Defendant Tubbs sent a letter to the state district court advising “that in the last 4 weeks [Mr. George] has been verbally aggressive with staff over food” and requesting a review hearing to address Mr. George’s conditional release expiration date and alleged violations of the group home’s rules. Plaintiff’s Exhibit 9; Defendants’ Exhibit 4. The letter did not provide any recommendations to the court, as required by Louisiana Code of Criminal Procedure Article 658(B)(5), regarding whether the court should revoke Mr. George’s discharge. Nevertheless, Defendant Tubbs testified that, at the time, he planned to move Mr. George “to a new group home to solve the problem.” Tubbs Test., Trial Tr. vol. 1, p. 75-76, line 1. There is no evidence that Mr. George was served with a copy of this letter. In any case,
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Defendant Tubbs testified that he does not believe that the state district court held a hearing in response to his June 10, 2013 letter. Tubbs Test., Trial Tr. vol. 1, p. 76, line 1.
On August 12, 2013, two weeks after Mr. George’s July 2013 arrest, Defendant Tubbs for the first time notified the court in writing that Mr. George had been arrested, requested a hearing, and recommended that the court revoke Mr. George’s probation. Plaintiff’s Ex. 11; Tubbs Test., Trial Tr. vol. 1, p. 78, line 1.6 On August 22, 2013, a hearing was held and the judge ordered Mr. George’s release from jail. Brady Test., Trial Tr. vol. 2, 21.
The stipulations between the parties state that “[a]fter Plaintiff Trussell George’s arrest, he was incarcerated from July 29, 2013 to August 23, 2013, at East Baton Rouge Parish Prison.”
On December 5, 2013, prior to the expiration of Mr. George’s five-year conditional release period, Defendant Brady filed a status review with the court requesting a hearing and recommending that Mr. George’s conditional discharge be extended for another year. Plaintiff’s Ex. 12. On May 14, 2014, the Nineteenth Judicial District Court in East Baton Rouge Parish extended Mr. George’s conditional release to December 14, 2014. Trial Stipulation ¶ 18.
Mr. George was incarcerated again on July 1, 2014 for allegedly violating a condition of his release. Plaintiff’s Ex. 13. While the East Baton Rouge’s Sheriff’s Office was given a written notice that Mr. George was to be incarcerated in the East Baton Rouge Parish Prison in July 2014, Plaintiff’s Exhibit 20, there is no evidence that any notice was provided to presiding state court until August 22, 2014, when Defendant Brady filed an “Episode Report” advising the state

6

As noted above, the record on Summary Judgment also shows that a Writ of Habeas Corpus was filed by

counsel for Mr. George on August 22, 2013.

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court of Mr. George’s arrest and requesting a revocation hearing. Plaintiff’s Ex. 14. Mr. George remained in jail until August 25, 2014.7 Trial Stipulations at ¶19-20.

QUESTION 4: EVIDENCE OF DEFENDANTS’ POLICIES, PRACTICES, AND PROCEDURES.
Defendants’ policies, practices, and procedures cause NGRI Acquittees to be arrested for non-criminal violations or perceived violations of the terms of their conditional release. Defendants have never disputed that it is a practice and policy of the Department of
Public Safety and Corrections to arrest and incarcerate NGRI Acquittees on conditional
discharge who have violated a term of their conditional release. Indeed, Defendant Tubbs, who
one of the Probation and Parole Officers employed by the Department of Public Safety and
Corrections, testified that he alone has “moved to revoke the conditional release of somewhere
around 12 to 18 of the Not Guilty by Reason of Insanity folk…” who were arrested and
incarcerated in the East Baton or Orleans Parish prisons. Tubbs Test., Trial Tr. vol. 1, 84-85
6/27/16. He further testified that he was following Department policy when he arrested Mr.
George:
Q And you responded, "well, we should probably arrest him [Mr. George]”; is that right?
A Probably correct, yes.
Q And you consulted your supervisor regarding this decision?
A I did.
Q And it was your understanding that the department's policy is that Mr. George’s arrest was in accordance with departmental policy?
A Yes.

7

As noted above, the Summary Judgment record shows that, on July 14, 2014, Mr. George, through counsel,

filed a motion requesting the state district court to schedule a hearing on Mr. George’s arrest and a Petition for Writ

of Habeas Corpus on August 5, 2015. Plaintiff’s Summary Judgment Ex. 12.

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Tubbs Test., Trial Tr. vol. 1, 84, 6/27/16. Moreover, as the testimony indicates, Defendants Department of Public Safety and Corrections and the Louisiana Department of Health act in concert in making decisions regarding, and executing, the arrest and incarceration of individuals on conditional discharge. Tubbs Test., Trial Tr. vol. 1, 83–84, 6/27/16; Brady Test., Trial Tr. vol. 2, 93–94, 6/28/16.

Defendants’ policies, practices, and procedures cause NGRI Acquittees to be incarcerated for more than one day. There is no evidence before this Court that by incarcerating Mr. George for 25 and 55 days that Defendants were following a practice unique to Mr. George. Indeed, Louisiana has a long history of confining mentally ill individuals in parish jails for extended periods of time, even when a court orders that they be transferred to a mental health facility. For example, in Advocacy Center for Elderly & Disabled v. Louisiana Dep’t of Health & Hospitals, 731 F. Supp. 2d 603, 627 (E.D. La. 2010), the court found that the plaintiffs were likely to prevail on their claim that the lengthy incarceration of persons found individuals found incompetent to stand trial violated due process; the court ordered the state to take physical custody of them these individuals and provide appropriate mental health care within twenty-one (21) days.8 Finally, the fact that individuals needing mental health treatment were languishing in and habitually warehoused in parish jails per Defendants’ policy, practice, and procedure is supported by the testimony of Eric Defendant Brady: Q So the decision to arrest Mr. George in July 2013 was made collectively by you, Dr. Vosburg and Mr. Tubbs; is that correct?

8

More recently, in Cooper v. Kliebert, Civil Action No. 14–507–SDD–SCR, 2014 WL 7334911 (M.D. LA

Dec. 19, 2014), this Court denied Defendants’ motion to dismiss plaintiffs’ claims that their incarceration in

Louisiana correctional facilities for months while awaiting bed space at ELMHS violated their rights under the

Fourteenth Amendment, Title II of the Americans with Disabilities Act (“ADA”), and Section 504 of the

Rehabilitation Act (“RA”). The parties in the Cooper eventually entered into a Settlement Agreement. Cooper v.

Kliebert, Civil Action No. 14–507–SDD–SCR (Doc. Rec. 197-1).

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A Yes, Ma’am.
Q Is it your understanding that a person can be involuntarily committed to a psychiatric facility if they're a danger to themselves or to other people?
A Yes, Ma’am.
Q And it's also your testimony that there was not a bed available in any -- in a psychiatric facility the weekend Mr. George was arrested?
A We give special considerations for people under the legal status of not guilty by reason of insanity and at the time, we didn't have any beds available.
Q At ELMHS?
A Yes, Ma’am.
Brady Test., Trial Tr. vol. 1, 127, 6/27/16.
Moreover, it is clear from Mr. Brady’s testimony regarding the 2013 arrest and Dr.
Kelly’s testimony regarding the 2014 arrest that the lack of available mental health beds was
much more than a fleeting occurrence restricted to a particular weekend.
Q Mr. Brady, I hate to interrupt you, but I just want to make sure that I get the answer to this question. So did you, from the time Mr. George was arrested, July 29th of 2013, to the time he was released in August 21st of 2013, determine if there was a bed available for him at the hospital in ELMHS?
A Yes, we did check on that and there were no beds available.
Q During that entire period?
A To my understanding, there was no beds available, otherwise, we would have had him in the hospital.
Q Thank you.9

9

The testimony of Defendant Tubbs also supports Mr. George’s position that because of the lack of bed

space at ELMHS, NGRI individuals needing mental health treatment were likely to end up, and languish, in parish

jails. As he stated in response to questioning from this court:

Q

…[T]then with respect to your decision and that of Mr. Brady that his aggressive

behavior warranted arrest – let me ask you this, there were no beds, is that why he did not go to

ELMHS?

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Brady Test., Trial Tr. vol. 1, 128, 6/27/16. See also Kelly Test., Trial Tr. vol. 2, pgs. 103-104. Mr. George’s arrest and incarceration in 2013 and 2014 had far less to do with his
behavior than it did with DHH’s LDH’s shortage of beds at ELMHS, and Defendants’ failure and refusal to ensure that he was provided appropriate mental health services at ELMHS or some other appropriate mental facility as required by state law.
Defendants’ policies, practices, and procedures cause NGRI Acquittees to receive no or substandard mental health care in jail. First, NGRI Acquittees in jail nearly by definition receive worse mental health care than those in treatment facilities like ELMHS. According to Dr. McConville, ELMHS has approximately 20 psychiatrists, five of which are employed full time. ELMHS also employs psychologists, a full-time nursing staff, dieticians, occupational therapists, recreational therapists and social workers. Furthermore, as in every Joint Commission accredited hospital, each resident at ELMHS has an individualized treatment plan and receives active therapy in order to ensure that its residents are progressing towards the goals of hospitalization. When appropriate, residents have a drug treatment program available to them. Some residents also receive individual psychotherapy. McConville Test., Trial Tr. vol. 2, 154-56, 6/28/16. ELMHS has a number of units that, depending on treatment needs, residents can move between and into: the ASSA, a forensic unit; the Crossroad Recovery Unit (CRU); the

A

That's correct.

Q

So by your way of thinking, there were two choices: first ELMHSs, if there was a bed

available, but if not, your only other choice, the way you saw it, was the parish prison?

A

Correct. Until we could go in front of the judge and the judge could make a decision on

what to do with him.

Tubbs Test., Trial Tr. vol. 1, 211, 6/27/16.

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Intermediate Treatment Unit (ITU); Cedarview, which is another intermediate unit; the East Acute Unit; and the Oakcrest unit, which is an admission unit. McConville Test., Trial Tr. vol. 2, 156-57, 6/28/16; Kelly Test., Trial Tr. vol. 2, 71-73, 6/28/16.
Second, even aside from the comparison to ELMHS, it is clear that mental health treatment at EBRPP, as applied to NGRI Acquittees arrested for nothing more than violating a term of their release, is constitutionally substandard. During trial, in order to highlight the indignities to which he was subjected, Mr. George presented ample evidence regarding mental health treatment at East Baton Rouge Parish Jail (EBRPP),10 where a significant number of NGRI Acquittees who are arrested for violating conditions of their release are incarcerated. Tubbs Test., Trial Tr. vol. 1, 85-86 6/27/16.
The evidence shows that such individuals are unlikely to receive necessary mental health treatment and that Defendants are well aware of this fact. NGRI Acquittees, such as Mr. George, who are incarcerated are likely be put in an isolation cell and, at most, provided with some medication. The evidence also shows that Defendants, as a matter of course do not contact mental health staff at the jail to ensure that NGRI Acquittees are provided with appropriate mental health treatment. As Defendant Tubbs testified,
Q At the time Mr. George was arrested, it was your understanding that at East Baton Rouge Parish Prison, the treatment offered to individuals like Mr. George who are not guilty by reason of insanity, would include providing medication and the use of isolation cells if they were unstable; is that right? A Yes.

10

As indicated above, it is Mr. George’s position that regardless of the conditions in EBRPP where he was

incarcerated, the fact that he was incarcerated in jail at all for violating his conditional release, in and of itself,

violated Plaintiff’s due process rights. However, the lack of mental health treatment in the EBRPP makes it clear

that the purpose of Plaintiff’s conditional release the provision of mental health treatment--did not bear any

reasonable relationship to his incarcerations in EBRPP.

.

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Q And when someone is in an isolation cell, it was your understanding that they were locked in there all day except for an hour for recreation and eating meals; is that right?
A That's my understanding.
Q You also understood that when eating meals a person in isolation would be brought to a cafeteria fully shackled and in, quote, "a black box;" is that right?
A I don't know how they're brought to eat.
Q And once you had arrested Mr. George, you didn't visit him in jail, did you?
A No.
Q And you didn't speak with him and confirm that he was receiving his mental health medications?
A I called Lisa Burns and told her about him being arrested and being placed at East Baton Rouge Parish Prison, and then she follows up with providing him mental health treatment, medication management, that kind of stuff.
Q And did you confirm with her that he was receiving his medications?
A No, I didn't confirm with her after the initial contact.
Tubbs Test., Trial Tr. vol. 1, 82-83 6/27/16; Brady Test., Trial Tr. vol. 2, 14, 6/28/16.
In all, the testimony at trial demonstrates that jail environments are particularly stressful
for people with mental illness and antithetical to the treatment purposes underlying the condition
release program.11 As Plaintiff’s expert, Dr. Delaney Smith testified, people who suffer from

11

The evidence in the record is also clear regarding the dire consequences that can result and has resulted

from inadequate treatment. As Ms. Martinez testified regarding Mr. George’s experience,

A

I -- I met him at the jail the day that he was released. He was released -- he was told to be released

earlier that day in court. I went to the jail, so did two other staff members from PHP, and we waited outside

-- we were actually going to go in and get him because they didn't know really where he was. Evidently he

had checked out but hadn't made it to the gate yet. So just as they were going to let us back in through the

gate, here -- he's walking out. And Trussell gave me a hug, and the staff from PHP, they took him to the

hospital for observation.

Q

How did Trussell look at that time?

A

Worse than he did before I saw him. He absolutely smelled like he had not bathed. He was very

scruffy, dirty. His skin was very flakey and ashy looking. He was still – he wasn't dragging his feet as much

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mental illness are “very susceptible to the impact of the social isolation of being in a jail. For Plaintiff, he was on a 23-plus hour lockdown, which is very difficult for anyone to deal with. But, again someone who’s already paranoid, is suffering voices in their head, has difficulty distinguishing reality, to put them alone in a room just further exacerbates their mental health condition.” Smith Test., Trial Tr. vol. 2, 40, 6/28/16.
Defendants’ policies, practices, and procedures cause NGRI Acquittees not to receive a hearing immediately or within ten days of arrest. The record is silent on how long the 12 to18 individuals arrested while on conditional release were confined in parish jails before they were given a hearing. However, the fact that Defendants have not claimed that Mr. George’s experiences were unique, the history of long incarcerations for persons who have been found NGRI or incompetent to stand trial as exemplified in Advocacy Center for Elderly & Disabled v. Louisiana Dep’t of Health & Hospitals and Cooper v. Kliebert, as well as the role that the lack of available bed space played in causing Mr. George’s incarceration in the first place, all strongly indicate that it is much more likely than not that persons on conditional discharge who are alleged to have violated a term of their conditional release spend considerable time in jail following their arrest and incarceration.
QUESTION 5: IS PLAINTIFF ENTITLED TO THE RELIEF REQUESTED IN HIS SECOND AMENDED COMPLAINT (DOC. 42) WITHOUT ESTABLISHING THAT “POLICIES, PRACTICES AND PROCEDURES” VIOLATED THE CONSTITUTION AND/OR ADA OR RA?
As detailed above, Mr. George maintains that his arrests and periods of incarceration in question were the result of Defendants following their established policies, practices, and
and shuffling, but he wasn't in shackles either. But he was -- he was definitely not walking in the manner that he -- he was a few months prior. He was very disoriented. Martinez Test., Trial Tr. vol. 1, 43-44, 6/27/16.
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procedures. The existence of such policies, practices, and procedures, however, is not a necessary element of his obtaining either damages or prospective relief for injury to his rights under federal law.
Constitutional Claims The equitable relief requested by Mr. George for violations of his Due Process rights is not dependent upon proof of the existence of policies, practices, or procedures as would be required for municipal liability under 42 U.S.C. § 1983. Instead, since he seeks prospective relief against state actors under Ex parte Young, 209 U.S. 123 (1908), Mr. George need show only that: (1) Defendants violated his Constitutional rights; and (2) Defendants were either explicitly charged with completing the unlawful action or were sufficiently connected to the unlawful action. See Okpalobi v. Foster, 244 F.3d 405, 421 (5th Cir. 2001). Mr. George prevails on his Due Process claim if he proves that Defendants deprived him of his liberty interest in freedom from detention or in mental health treatment. (See Pls.’ Pretrial Brief, Doc. No. 117-1 at 4–14.) Having satisfied the elements of those claims, the next question is whether Mr. George has met the standard for prospective relief under Ex parte Young. Since Mr. George has sought relief against state actors, he need not prove the existence of a policy, practice or custom that was the moving force behind the deprivation of his rights under federal law. When a litigant seeks injunctive relief against a municipality, he must demonstrate the existence of a “policy or custom” on behalf of the municipality. Los Angeles Cty. v. Humphries, 562 U.S. 29, 36–37 (2010). In Humphries, the Court applied to injunctive relief the standard previously used only for damages claims against municipalities, as laid out in Monell v. Dep’t of Social Svcs., 436 U.S. 658 (1978). See also Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (holding that Monell liability requires demonstration of municipal policymaker,
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existence of a policy, and prof that policy was the “moving force” behind Plaintiff’s injury). Thus, in the wake of Humphries, injunctive relief against a municipality under § 1983 can be had only where the municipality has adopted a custom, policy, or practice that caused the Plaintiff’s injury. 562 U.S. at 39. But the Humphries court limited its opinion to Monell claims against municipalities. Neither the Supreme Court nor the Courts of Appeal have ever required such a showing for injunctive relief against a state official under Ex parte Young, the vehicle through which Mr. George seeks relief for the violations of his Constitutional rights.
In Viet Anh Vo v. Gee, the Eastern District of Louisiana recently enjoined Louisiana clerks of court—who the court had determined were functioning as state actors for the purposes of that suit—from enforcing a state law that required applicants for a marriage license to first produce a birth certificate. Civil Action No. 16-15639, 2017 WL 1091261 (E.D. La. Mar. 23, 2017). Judge Ivan J. Lemelle rejected the clerks of courts’ claim that they could be liable for injunctive relief only under a Monell theory: “the Monell requirements that defendants reference apply where a municipal official acts in a local capacity, not where the official performs as a state actor. . . . The appropriate standard that should be used in the instant matter is the one found in Ex parte Young.” Id. at *4.
In the Fifth Circuit, a claim under Ex parte Young is present where a state official acts, threatens to act, or “at least ha[s] the ability to act to enforce an unconstitutional act.” Sonnier v. Crain, 649 F. Supp. 2d 484, 493 (E.D. La. 2009) (citing Okpalobi v. Foster, 244 F.3d 405, 421 (5th Cir. 2001)). The state official must also have “some connection” to the unlawful act. Ex parte Young, 209 U.S. 123, 157 (1908). To gauge whether a sufficient connection between the state official and the challenged conduct exists, courts look to “(1) the ability of the official to enforce the statute at issue under his statutory or constitutional powers; and (2) the demonstrated
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willingness of the official to enforce the statute.” Sonnier, 649 F. Supp. 2d at 493. In Okpalobi, the Fifth Circuit found Ex parte Young inapplicable where the defendant governor and attorney general were incapable of enforcement of a challenged statute that expanded tort liability for doctors who perform abortions. 244 F.3d at 427 (“The governor and attorney general have no power to redress the asserted injuries. In fact, under Act 825, no state official has any duty or ability to do anything.”)
In the case at bar, Defendants Tubbs, Brady, and Vosburg all directly participated in the decisions to place Mr. George in the East Baton Rouge Parish Prison instead of ELMHS, a hospital, or another community placement. Defendants LeBlanc, Gibbs, and Starks had supervisory roles over Defendant Tubbs and were charged by law with monitoring individuals like Mr. George who were on conditional release after being acquitted as NGRI. Trial Stipulations ¶¶ 8–11, Pl.’s Trial Ex. 24. Defendant Gee had supervisory authority over Defendants Brady and Vosburg. As agency head of the Louisiana Department of Health (formerly “Department of Health and Hospitals” at the time of filing), Defendant Gee heads an agency charged with the monitoring and care of Mr. George. Id. ¶¶ 12–13 Not only did the Defendants thus have the power and ability to incarcerate Mr. George, but they also proved themselves willing to take such an enforcement action on two separate occasions. Thus, all Defendants had a sufficient connection to the deprivation of Mr. George’s Due Process rights. Regardless of whether Defendants acted according to a formal policy, practice, or procedure, the Defendants either took direct action or were sufficiently connected to such action to violate Mr. George’s Constitutional rights on two separate occasions.
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ADA / Section 504 To obtain relief for violations of his rights under the Title II of the ADA and Sec. 504, Mr. George need not demonstrate the existence of established policies, practices, and procedures that were the cause of his injury. Delano-Pyle v. Victoria Cty., Tex., 302 F.3d 567, 575 (5th Cir. 2002) (holding “neither a policymaker, nor an official policy must be identified for claims asserted under the ADA or the RA”). Defendants LDH and LDPSC waived sovereign immunity for claims under the ADA and Sec. 504 through their receipt of federal funds. See Pl.’s Trial. Ex. 24 (parties’ stipulation to Defendants LDH and LDPSC’s receipt of federal funding); BennetNelson v. La. Bd. of Regents, 431 F.3d 448 (5th Cir. 2005) (holding that sovereign immunity for claims under § 504 is waived via receipt of federal funds). Thus, Mr. George has a direct action against the Defendants through the enforcement provisions of Title II and Sec. 504. 42 U.S.C. § 12133; 29 U.S.C. § 794a. Therefore, he must prove only that he was discriminated against within the definition of those statutes and that declaratory judgment and permanent injunction are the proper remedies. Given the waiver of sovereign immunity, an analysis under Ex parte Young is inapplicable to Mr. George’s ADA / Sec. 504 claims. Mr. George need not even make any showing as to the Defendants’ intent to justify equitable relief. See Midgett v. Tri-Cty. Metro. Transp. Dist. of Oregon, 254 F.3d 846, 851 (9th Cir. 2001) (“[E]quitable remedies for violations of the ADA are available regardless of a defendant's intent.) While proof of an existing, policy, practice, or procedure is unnecessary to grant relief under the ADA or Sec. 504 for Mr. George to obtain equitable relief, he must demonstrate intentional discrimination to justify the award of compensatory damages. See Delano-Pyle, 302 F.3d at 575.
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QUESTION 6: WITH RESPECT TO PLAINTIFF’S CLAIMS UNDER THE ADA AND SECTION 504, WHAT EFFECT OR WEIGHT SHOULD THE COURT GIVE TO THE JURY’S FINDINGS?
This Court asked for briefing on what weight the Court should place on the jury’s finding that Defendants LDH and LDPSC did not discriminate against Mr. George on the basis of his disability. Mr. George admits that, as long as the jury’s finding stands, this Court is obliged to apply to law to the facts as the jury found them. Therefore, Mr. George respectfully moves this Court to consider his renewed motion for judgment as a matter of law (JMOL) on the grounds that no reasonable jury could have found that Mr. George was not discriminated against on the basis of his mental illness.
Federal Rule of Civil Procedure 50 allows this Court to consider renewed motions for JMOL until 29 days after entry of judgment. Federal Rule of Civil Procedure 50 governs a party’s motion for JMOL. A movant may move for JMOL at any time before the case is submitted to a jury.12 The court may grant a motion for JMOL if a party has been fully heard on issue and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue. If the court does not grant the motion for JMOL, the court is considered to have submitted the issue to the jury, subject to the court’s later deciding the legal questions raised by the motion. Where a jury has issued a verdict, a movant may renew his motion for JMOL “no later than 28 days after entry of judgment.” Fed. R. Civ. Pro. 50(b).
Standard for JMOL. A motion for JMOL raises only a question of law: “[w]hether there is any evidence which, if believed, would authorize a verdict against movant.” Marsh v. Illinois Cent. R. Co.,
12 Mr. George moved for judgment as a matter of law before the case was submitted to the jury. Trial Tr. vol. 3, 63, 6/29/16.
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175 F.2d 498, 500 (5th Cir. 1949). “A judgment as a matter of law is appropriate if the facts and inferences point so strongly and overwhelmingly in favor of one party that reasonable people could not arrive at a verdict to the contrary.” Buchanan v. City of San Antonio, 85 F.3d 196, 198 (5th Cir. 1996). In considering a motion for JMOL, the court is not to reweigh the evidence or assess the credibility of witnesses. See Lytle v. Household Mfg., Inc., 494 U.S. 545, 554 (U.S. 1990). Rather, the court must examine the entire record in the light most favorable to the nonmovant and draw all inferences in the non-movant's favor. Becker v. PaineWebber, Inc., 962 F.2d 524, 526 (5th Cir. 1992).
Mr. George is entitled to a JMOL because Defendants did not present the jury with a single shred of evidence to explain why Mr. George was incarcerated in the East Baton Rouge Parish Prison in 2013 and 2014 except because of his mental illness. Therefore, no reasonable jury could have found that there was any other cause for his incarceration or that he was not discriminated against because of his mental illness. Defendants claim that they arrested and incarcerated Mr. George because his mental illness caused him to have “behaviors.” Tubbs Test., Trial Tr. vol. 2, 210, 6/28/16; Brady Test., Trial Tr. vol. 1, 121-22, 6/27/16; Defendants’ Memorandum in Support of Summary Judgment, Doc. Rec. 81 at 14-15; Defendants' Proposed Findings of Fact and Conclusions of Law, Doc. Rec. 152 at ¶¶ 38, 100. Yet Defendants did not arrest and incarcerate Mr. George because those “behaviors” constituted a crime, or because they intended to get Mr. George treatment; in other words, Mr. George’s “behaviors” alone do not justify Defendants’ actions. Defendants arrested Mr. George because of his “behaviors” paired with the fact that his disability is mental illness and it once caused him to be acquitted of criminal liability
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1. Defendants did not provide the jury with any evidence for a legal basis for Mr. George’s arrest and incarceration.
One of the most basic, foundational tenants of our democracy is that the government cannot arrest or incarcerate an individual without a legal basis. It is undisputed that Defendants arrested and incarcerated Mr. George, an NGRI Acquittee not subject to pending criminal prosecution, in 2013 and 2014. So while Mr. George bears the burden of proving by a preponderance that Defendants discriminated against him on the basis of his disability, upon proof of arrest and incarceration, Defendants logically must give the jury evidence of a legal (i.e., non-discriminatory) basis for that arrest and incarceration. In this case, Defendants did not present the jury with a shred of any such evidence.
Notably, the only witness Defendants called to present evidence to the jury was an expert, Dr. Harold Ginzburg, who testified solely on the issue of damages. Dr. Ginzburg’s sole testimony was that Mr. George’s mental and physical decline was a result of his previous drug use, rather than the failure of Defendants to provide adequate mental health treatment while Mr. George was in EBRPP. Tr. Trans. Pgs. 26-27. Dr. Ginzburg did not, and could not, present the jury with any legal basis for why Mr. George was incarcerated in EBRPP in the first place.
Defendants’ only attempts at providing a legal basis for arresting and incarcerating Mr. George are a smattering of excuses that, upon even cursory inspection, fail to provide a nondiscriminatory basis for arresting and incarcerating Mr. George. Defendants’ focus on Mr. George’s “behaviors” are a red herring. While “behaviors” alone may sometimes be a basis for arrest, Defendants cannot claim either of those legal bases in this case. Mr. George’s “behaviors” were merely a necessary, but not sufficient, condition for Defendants arresting and incarcerating Mr. George.
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First, at times Defendants claim they arrested and incarcerated Mr. George for his “behaviors,” some of which could have constituted crimes. However, no reasonable jury could have found that this was Defendant’s reason for arresting and incarcerating Mr. George. If an individual has “behaviors” that constitute a crime, the individual may be arrested and charged with the crime, after which he would enjoy the due process protections afforded to an arrestee. Defendants admit they did not arrest and incarcerate Mr. George because his “behaviors” constituted a crime; indeed, he was never charged with a crime for any events relevant to this case. Tubbs Test., Trial Tr. vol. 1, 82, 6/27/16.
Second, Defendants claim they arrested and incarcerated Mr. George to protect him and get him treatment. However, when Defendants arrested Mr. George in 2013, they knew there were no beds available at ELMHS, Tubbs Test., Trial Tr. vol. 1, 84, 6/27/16; Brady Test., Trial Tr. vol. 1, 124-25, 6/27/16, and they did not even attempt to find another psychiatric treatment facility, Tubbs Test., Trial Tr. vol. 1, 86, 6/27/16; Brady Test., Trial Tr. vol. 1, 123, 6/27/16. After incarcerating Mr. George in jail for the ostensible purpose of getting him treatment, Defendants did not follow up to see whether Mr. George was actually receiving treatment. Tubbs Test., Trial Tr. vol. 1, 83, 90, 6/27/16. Even worse, when Defendants arrested Mr. George again in 2014, they arrested him while he was receiving mental health care at ELMHS, and took him away from that treatment. Brady Test., Trial Tr. vol. 2, 19-20, 6/28/16. Whether Mr. George ever received treatment for the mental illness that was causing his “behaviors” was clearly of marginal concern, if of any concern, to Defendants.
Finally, Defendants sometimes claim that they arrested and incarcerated Mr. George because there were no beds were available at ELMHS. This last excuse is the most spurious of all. First, it assumes that Defendants had the legal authority to detain Mr. George, which is of
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course the very question at issue. Second, it misleads the fact-finder by suggesting that the number and availability of beds is not under Defendants’ control. As evidenced by Advocacy Center for Elderly & Disabled v. Louisiana Dep’t of Health & Hospitals, 731 F. Supp. 2d 603, 627 (E.D. La. 2010) and Cooper v. Kliebert, 2014 WL 7334911 (M.D. LA 2014), the number, availability, and provision of beds at ELMHS is squarely under Defendant LDH’s authority. The lack of beds at ELMHS is not a legal basis to arrest and incarcerate Mr. George when Defendants are the ones responsible for the lack of beds.
2. Defendants arrested and incarcerated Mr. George because he is a person with mental illness whose mental illness has, in the past, caused him to be found not guilty by reason of insanity.
Mr. George’s “behaviors” alone did not cause Defendants to arrest and incarcerate him. The crux of Mr. George’s ADA claim lies with the other condition necessary to his arrest and incarceration, which was that Mr. George is a member of a small class of individuals with disabilities whose disability has caused them to break the law and whose disability happens to be mental illness. Had Mr. George not had mental illness, or had he been acquitted of a crime based on any other disability besides mental illness, he would not have been arrested and incarcerated.
First, had Mr. George never been found NGRI, Defendants would not have arrested and incarcerated him, even if he had “behaviors.” That is because if Mr. George’s mental illness caused him to commit a crime he would be arrested by the police (not Defendants), and if it caused him to be a danger to himself or others, Defendants would have moved to have him civilly committed.
Second, had Mr. George been acquitted on the basis of a disability other than mental illness, Defendants also would not have arrested and incarcerated him. For example, if a diabetic went into hypoglycemic shock and caused an automobile accident, the diabetic would be acquitted of reckless driving because she would not have been criminally responsible for her
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driving. If, five years later, the diabetic had another hypoglycemic incident and fell against a passerby, Defendants would not then have arrested and incarcerated her for “behaviors” caused by her disability. Even more, she would not be arrested and incarcerated for the purported purpose of receiving “treatment,” only to be deprived of insulin.
Yet, persons with both characteristics – those whose mental illness has caused them to be acquitted on that basis – are treated differently. Even though the mentally ill arrestee and an NGRI Acquittee both may have “behaviors” caused by their mental illness, only an NGRI Acquittee is deprived of the due process protections of both an arrestee and a civil committee. And even though the diabetic in the hypothetical above and an NGRI Acquittee are both found not to be culpable for their actions on account of their disability, only the NGRI Acquittee can later be arrested for “behaviors,” and only the NGRI Acquittee is incarcerated ostensibly to receive “treatment” and then functionally deprived of the very treatment he needs.
Mr. George presented the jury with evidence that Defendants discriminated against him by arresting and incarcerating him solely on the basis that he had mental illness (and the attendant “behaviors”) and had once been acquitted based on that mental illness. Defendants, in turn, did not present a single shred of evidence to show that there was any legal basis for Mr. George’s arrest and incarceration. Therefore, no reasonable jury could have found that Defendants did not discriminate against Mr. George on the basis of his disability, mental illness.
Respectfully submitted this 6th day of September, 2017. /s/ Ronald K. Lospennato Ronald K. Lospennato, Bar No. 32191 Laura Thornton, Bar No. 36053 Kathryn E. Fernandez, Bar No. 33829 Advocacy Center 8325 Oak Street New Orleans, LA 70118 504-208-4679 (p)
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504-522-5507 (f) rlospennato@advocacyla.org kfernandez@advocacyla.org lthornton@advocacyla.org Katie M. Schwartzmann, Bar No. 30295 Eric Foley, Bar No. 34199 Roderick & Solange MacArthur Justice Center 4400 S. Carrollton Ave. New Orleans, LA 70119 504-620-2259 (p) 504-208-3133 (f) katie.schwartzmann@macarthurjustice.org eric.foley@macarthurjustice.org CERTIFICATE OF SERVICE I hereby certify that on this 6th day of September, 2017, a copy of the foregoing will be served on the Defendants by the “Notice of Electronic Filing” automatically generated by the Court’s Electronic Filing System. /s/ Ronald K. Lospennato__ Ronald K. Lospennato, Bar No. 32191
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 Case 3:14-cv-00338-JWD-RLB Document 169 09/29/17 Page 1 of 78

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

TRUSSELL GEORGE

VERSUS

CIVIL ACTION

LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, JAMES M. LEBLANC, Secretary of the Louisiana Department of Public Safety and Corrections, in his official capacity, WHALEN GIBBS, Assistant Secretary of the Louisiana Department of Public Safety and Corrections, in his official and individual capacities, SCOTT TUBBS, Probation and Parole Agent, in his official and individual capacities, GERALD STARKS, Director of the Division of Probation and Parole, in his official and individual capacities, KATHY KLIEBERT, Secretary of the Louisiana Department of Health and Hospitals, in her official capacity, LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS, ERIC BRADY, District Forensic Coordinator, in his official and individual capacities, and CHARLES P. VOSBURG, Consulting Psychologist for the Department of Health and Hospitals, in his official and individual capacities.

NO. 14-CV-00338-JWD-RLB

FINDINGS OF FACTS AND CONCLUSIONS OF LAW

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TABLE OF CONTENTS OVERVIEW - 4 A. INTRODUCTION - 4 B. PROCEDURAL HISTORY - 5 C. SUMMARY OF CONTENTIONS OF PARTIES - 7 D. ISSUES BEFORE THE COURT - 11 E. BACKGROUND AND PARTIES’ FACTUAL ARGUMENTS - 12 F. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS’ OVERSIGHT
RESPONSIBILITIES FOR PERSONS ON CONDITIONAL RELEASE - 16 G. LOUISIANA DEPARTMENT OF HEALTH’S OVERSIGHT RESPONSIBILITIES
FOR PERSONS ON CONDITIONAL RELEASE - 17 H. TRUSSELL GEORGE’S ARREST AND INCARCERATION IN JULY 2013 - 18 I. EVENTS FOLLOWING AUGUST 23, 2013 RELEASE FROM EBRPP - 26 J. TRUSSELL GEORGE’S DECEMBER 2013 TO DECEMBER 2014
CONDITIONAL RELEASE - 27 K. TRUSSELL GEORGE’S ARREST AND INCARCERATION IN 2014 - 28 FINDINGS OF FACT – 32 A. JULY 29, 2013 ARREST AND INCARCERATION – 33 B. ADEQUACY OF MEDICAL CARE AT EBRPP – 39 C. JULY 2014 ARREST AND INCARCERATION – 41 D. POLICY, PROCEDURE OR PRACTICE, VEL NON - 42 E. DISCRETE SUBSTANTIVE DUE PROCESS VIOLATIONS TO GEORGE, VEL
NON - 44
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CONCLUSIONS OF LAW - 45 A. JURISDICTION AND VENUE – 45 B. PARTIES – 46 C. ISSUES BEFORE THE COURT – 47 D. STATUTORY RIGHTS OF THOSE FOUND NOT GUILTY BY REASON OF
INSANITY - 47 E. SUBSTANTIVE DUE PROCESS RIGHTS OF NGRI ACQUITTEES AND
STANDARD FOR APPLYING THEM – 51 F. APPLICATION OF LAW TO FACTS OF CASE – 66 G. EXISTENCE AND CONSTITUTIONALITY OF ALLEGED POLICY, PRACTICE,
AND PROCEDURE – 66 H. ARREST AND INCARCERATION FOR VIOLATIONS OF CONDITIONS OF
RELEASE WHEN NO CRIME WAS COMMITTED – 68 I. PLAINTIFF’S CLAIMS SEEKING DECLARATORY AND INJUNCTIVE RELIEF
UNDER THE ADA AND SECTION 504 – 75 CONCLUSION - 78
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OVERVIEW A. INTRODUCTION 1. Plaintiff Trussell George (“Plaintiff” or “George”) brings this action by and through his guardian ad litem Letetica Walker. (Mot. to Appoint a Guardian Ad Litem, Doc. 58 at 1; and Order, Doc. 63 at 1.) George is a person with a mental illness, who, on September 25, 2008, was found Not Guilty by Reason of Insanity (“NGRI”) of possession of a firearm by a known felon. (Order, Pl.’s Trial Ex. 1 at TG000001.) On December 15, 2008, he was granted a Judgment of Supervised Probation and was conditionally released. (Id. See also Pl.’s Trial Exs. 4 at TG000005, 6 at TG000007, 24 at 1, ¶ 2.) 2. While on conditional release, George was arrested and placed in the East Baton Rouge Parish Prison (“EBRPP”) on two separate occasions, July 29, 2013 and July 1, 2014. 3. Plaintiff’s claims against various defendants (“Defendants”) are for declaratory and prospective injunctive relief under 42 U.S.C. Section 1983, 29 U.S.C. Section 794(a) and 42 U.S.C. Section 12132 pursuant to 28 U.S.C. Section 2202 and Federal Rule of Civil Procedure 65. (Pl.’s Second Amended Complaint, Doc. 42 at 18–23.) He claims that the arrests and detentions were wrongful and violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution and the above statutes. (Pl.’s Request for Finding of Fact and Rulings of Law, Doc. 151 at 1–2, 32–33.) 4. For the reasons which follow, the requested relief is denied.
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B. PROCEDURAL HISTORY 5. By way of a complaint (Complaint, Doc. 1) and two amended complaints (Pl.’s First
Amended Complaint, Doc. 24 and Doc. 42),1 Plaintiff sued two agencies of the State of Louisiana, the Louisiana Department of Public Safety and Corrections (“LDPSC”) and the Louisiana Department of Health (“LDH”),2 along with seven individuals in their official capacities: James M. LeBlanc (“LeBlanc”), Rebekah E. Gee (“Gee”), Whalen Gibbs (“Gibbs”), Gerald Starks (“Starks”), Scott Tubbs (“Tubbs”), Eric Brady (“Brady”) and Charles Vosburg (“Vosburg”), (collectively, “Defendants”).3 6. The suit originally asked for compensatory and punitive damages as well as declaratory and injunctive relief under 42 U.S.C. Section 1983; 29 U.S.C. Section 794(a), Section 504 of the Rehabilitation Act of 1973 (“Section 504” or the “RA”); and 42 U.S.C. Section 12132, Title II of the Americans with Disabilities Act of 1990 (“ADA”). However, Plaintiff’s claims against Gibbs, Starks, Vosburg, Brady and Tubbs in their individual capacities were dismissed on June 25, 2016, (Mot. to Voluntarily Dismiss Claims for Damages Against Defs.’ [sic] Whalen Gibbs, Geral [sic] Starks, Charles Vosburg, Eric Brady, and Scott Tubbs in their Individual Capacities, Docs. 129 at 1; Minute Entry, Doc. 138 at 2), leaving only the official capacity claims against all Defendants. (Trial Tr. vol. 1, Doc. 148 at 26:17– 27:19.)
1 Because an amended complaint supplants and replaces prior complaints, Eubanks v. Parker Cty. Commr’s Court, 1995 WL 10513, at *2 (5th Cir. Jan. 3, 1995); Hall v. Louisiana, 983 F. Supp. 2d 820, 832 (M.D. La. 2013), the Court considers Plaintiff’s Second Amended Complaint (Doc. 42, in globo) to be the operative pleading in this action. 2 Since the filing of these complaints, the Louisiana Department of Health and Hospitals has been re-designated the Louisiana Department of Health. See La. Rev. Stat. Ann. § 36:251. 3 Where appropriate, a public official’s successor is automatically substituted as a party consistent with Federal Rule of Civil Procedure 25(d).
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7. Motions for summary judgment were filed by both Plaintiff (Pls.’ Mot. For Partial Summ. J., Doc. 76 at 3.) and Defendants (Defs.’ Mot. For Summ. J., Doc. 74 at 4,) and both were denied. (Order, Doc. 112 at 1; Order and Ruling on Mots. For Summ. J., Doc. 124 at 30.) As a part of the rulings, the Court found that two of the involved statutes, La. Code Crim. Proc. arts. 658 and 899, were facially constitutional but that there were fact questions precluding summary judgment. (Doc. 124 at 3, 22–26.)
8. The Court also found there were questions of fact which needed to be resolved in order to determine George’s claims arising under the ADA and Section 504. (Id. at 28-30.)
9. On June 27 through June 29, 2016, the case was tried simultaneously to a jury and the Court. (Minute Entry, Doc. 138–139, in globo; Minute Entry, Doc. 145, in globo; Trial Tr. vol. 1, Doc. 148, in globo; Trial Tr. vol. 2, Doc. 149, in globo; and Trial Tr. vol. 3, Doc. 150, in globo.) At the conclusion of the trial, that portion of the case tried to the jury was submitted to it for decision. The jury rendered a verdict for LDPSC and LDH on the claims arising under Section 504 and the ADA. (Jury Verdict Form, Doc. 144 at 2–3.) Specifically, the jury found that these defendants had not discriminated against Plaintiff under Section 504 and the ADA and had not failed to make reasonable accommodations to Plaintiff’s disabilities under either statute. (Id.)
10. As to that portion of the case tried to the Court, the Court took the matter under advisement and the parties were ordered to file proposed findings of fact and conclusions of law within 30 days of the filing of the trial transcript. (Doc. 150 at 192:22-193:1). The parties’ proposed findings and conclusions were filed as Docs. 151 and 152, respectively. (Pl.’s Request for Finding of Fact and Rulings of Law, Doc. 151 at 51; Defs.’ Proposed Findings
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of Fact and Conclusions of Law, Doc. 152 at 13.) The Court then requested the parties’ responses to certain specific questions. (Doc. 159.) They responded in Docs. 160 (Plaintiff’s Memorandum of Law (“P Mem.”)) and 161 (Defendants’ Answers to Questions Raised (“D Mem.”).) Plaintiff’s response also asked the Court to “consider his renewed motion for judgment as a matter of law” with respect to his Section 504 and ADA claims. (Doc. 160 at 23.) The Court heard oral argument on September 20, 2017. (Doc. 164). Following oral argument, Plaintiff filed a Supplemental Memorandum discussing whether a settlement agreement in another case moots or bars his claims4 (Doc. 167), and Defendants filed a Memorandum in Opposition to Plaintiff’s Renewed Motion for Judgment as a Matter of Law (Doc. 168).
C. SUMMARY OF CONTENTIONS OF PARTIES 11. Plaintiff contends that Defendants’ “policies, practices and procedures . . . caused him to be
arrested and incarcerated on two separate occasions . . . [in] violat[ion] of his rights under the Due Process Clause of the Fourteenth Amendment of the United States Constitution, and subjected him to intentional discrimination in violation of Section 504 of the Rehabilitation Act of 1973 . . . and Title II of the Americans with Disabilities Act of 1990.” (Doc. 42 at 2, ¶ 1.) 12. The “policies, practices and procedures” about which Plaintiff specifically complains are those “which cause persons who have been found NGRI and are able to be released on specified conditions without danger to themselves or others to be confined in correctional
4 Because the Court denies George’s claims on the merits, see infra, it does not discuss this issue.
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facilities for the sole reason that they are alleged to have violated a condition of their release . . . .” (Doc. 42 at 19, ¶ 91; 20–21, ¶ 97; 21, ¶ 101; 22, ¶ 106; and 23, ¶ 109.) 13. In addition, Plaintiff claims “Defendants’ actions . . . which caused Plaintiff to be confined in a correctional facility for the sole reason that he is alleged to have violated a condition of his release, violate his rights under the Due Process Clause to the United States Constitution.” (Doc. 42 at 19, ¶ 93.) 14. In his post-trial briefing, Plaintiff broadens this contention. There, Plaintiff contends that “Defendants, acting under color of state law and pursuant to state policies and practices, deprived [Plaintiff] of his liberty by intentionally incarcerating him in the East Baton Rouge Parish prison twice, once in 2013 and again in 2014 (1) for allegedly violating a term of his conditional release, even though there was no allegation, nor probable cause to believe, that he had violated any criminal statute; (2) for behavior [] that was a clear manifestation of his mental illness; and (3) despite the fact that he clearly needed treatment in a state or private mental health institution.” (Doc. 151 at 1.) 15. In his Second Amended Complaint, Plaintiff asks for both declaratory and injunctive relief. As to the former, he asks the Court to declare “that Defendants’ policies, practices and procedures of arresting and incarcerating individuals in state correctional facilities who have been placed on conditional discharge following a finding of NGRI, solely because they are alleged to have violated a condition of their discharge, violate Plaintiff’s rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, Section 504 of the Rehabilitation Act of 1973, and Title II of the American with Disabilities Act of 1990.” (Doc. 42 at 23-24; see also Doc. 151 at 1–2.)
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16. In addition, Plaintiff asks for an injunction “prohibiting Defendants from arresting and incarcerating individuals in state correctional facilities who have been placed on conditional discharge following a finding of NGRI, solely because they are alleged to have violated a condition of their discharge.” (Doc. 42 at 23, ¶ B.)
17. The Court notes that the relief requested in Plaintiff’s post-trial briefing is in some respects broader and in others more specific than in his Second Amended Complaint, namely requesting an injunction requiring: a. “So long as Mr. George remains on conditional discharge, Defendants are prohibited from arresting and incarcerating him in any correctional facility because there is an allegation that he violated a condition of his discharge in the absence of a reasonable belief that he has committed a criminal offense.” (Doc. 151 at 50, ¶ 193.) b. “[T]he Defendants [are barred] from arresting and incarcerating [Plaintiff] solely because he has violated a term of his conditional release.” (Id. at 2.) c. “If Mr. George is alleged to have violated a condition of his discharge, but he is not charged with a new criminal offense, Defendants’ sole recourse is to have him voluntarily admitted to ELMHS or another a suitable mental health treatment facility pursuant to La. R.S. 28:52, or by emergency certificate to such a facility pursuant to La. R.S. 28:53, with subsequent notice to the court. La. Code Crim. P. art. 658(B)(4).” (Id. at 50, ¶ 194.) d. “Defendants shall, within 30 days of the date of this order, promulgate and implement written policies and procedures that prohibit its agents, employees, contractors, or assigns from arresting and incarcerating any individuals in
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correctional facilities who have been placed on conditional discharge following a finding of NGRI, solely because they are alleged to have violated a condition of their discharge. Such policies and procedures shall also provide that if an individual who has been placed on conditional discharge following a finding of NGRI is alleged to have violated a condition of his discharge, but that individual has not been charged with a new criminal offense, Defendants’ sole recourse is to have him voluntarily admitted to ELMHS or another [] suitable mental health treatment facility pursuant to La. R.S. 28:52, or by emergency certificate to such a facility pursuant to La. R.S. 28:53, with subsequent notice to the court. La. Code Crim. P. art 658(B)(4).” (Id. at 50-51, ¶ 195.) 18. In Plaintiffs’ briefing, Plaintiff also seems to raise complaints broader than that needed to support the relief he requests, namely the length of time George was incarcerated, the quality of care he received while in jail, and the issue of George’s lengthy incarcerations without a hearing. (See, e.g. Doc. 151 at 15-18, ¶¶ 59-68; 37, ¶ 151.) In response to the Court’s inquiry on this issue, counsel for Plaintiff reassured the Court that the constitutional issue in this case is limited to the issue of whether the arrest and incarceration of George solely for violations of conditions of release in the absence of a criminal arrest violated George’s substantive due process rights, and do not include the issues of length of incarceration before release, length of incarceration without or before a hearing, and adequacy of medical care and other issues. (Doc. 163 at 1.) 19. The Court notes that although the Second Amended Complaint also asks the Court to declare La. Code Crim. Proc. arts. 658(B) and 899 facially unconstitutional (Doc. 42 at 24), the
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Court previously denied that challenge. (Doc. 124 at 18-19, 22-24.) Plaintiff’s demand for compensatory and punitive damages was voluntarily dismissed. (Docs. 129 at 1; 138 at 2; 148 at 26:19–27:4.) 20. Defendants, on the other hand, contend that, at all times, they acted reasonably and within the bounds of the law and that Defendants’ conduct as well as their policies, procedures and practices did not violate the Constitution, Section 504, or the ADA. (Doc. 152 at 10–12, ¶ 89, ¶ 97–99, ¶ 105–106.) 21. According to Defendants, Plaintiff’s arrests and incarcerations were provoked by Plaintiff’s aggressive, assaultive and dangerous behavior and were supported by probable cause that he was violating or about to violate the terms and conditions of his release. (Id. at 5, 10-12.) 22. In addition, Defendants contend that George’s arrests and incarcerations until he could have a hearing and be placed in a suitable psychiatric facility were made because he was a danger to himself and others and thus were justified under both Louisiana’s statutory scheme and the Constitution. (Id. at 10–12.) 23. Defendants urge the Court to find, as the jury did, that there was no discrimination against Plaintiff under either the ADA or Section 504. (Id. at 12, ¶¶ 104–105.) 24. Finally, Defendants claim that the facts adduced at trial justify neither a declaratory judgment nor injunction under any law and therefore ask this Court to reject all of Plaintiff’s remaining claims against Defendants.
D. ISSUES BEFORE THE COURT 25. In order to resolve this dispute, the Court must resolve the following issues:
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a. Did Defendants have in place policies, practices, or procedures causing or allowing NGRI acquittees to be arrested and incarcerated at a correctional facility solely for a violation (or anticipated violation) of the conditions of the acquittee’s release, even when no crime had been committed?
b. Were George’s arrests or incarcerations made pursuant to this policy? c. Even if there were no such policies, procedures or practices, under the specific facts
of this case, did George’s arrests and subsequent incarcerations at a correctional facility, solely because of a violation of his conditions of release, in the absence of a criminal arrest, violate his substantive due process rights under the United States Constitution and/or his statutory rights under Section 504 and the ADA? E. BACKGROUND AND PARTIES’ FACTUAL ARGUMENTS 26. Plaintiff is a person with mental illness who, on September 25, 2008, was found NGRI of a criminal offense, specifically the offense of being a felon in possession of a firearm. (Trial Stipulations, Pl.’s Trial Ex. 24 at 2, Trial Stipulation No. 5; see also Pl.’s Trial Ex. 4 at TG000005; & Pl.’s Trial Ex. 6 at TG000007.) 27. On December 15, 2008, the Nineteenth Judicial District Court in East Baton Rouge, Louisiana, the court with jurisdiction over his criminal charges, ordered that George be conditionally released from inpatient hospitalization and into the community pursuant to La. Code Crim. Proc. art. 657.1, for a period of five years. (Pl.’s Trial Ex. 1 at TG000001; Pl.’s Trial Ex. 24 at 1, No. 2.) 28. In issuing the 2008 conditional release order, the Nineteenth Judicial District Court found that George was not in need of further inpatient treatment, provided that he receive adequate
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outpatient treatment, supervision, and monitoring. (Pl.’s Trial Ex. 1 at TG000001; Pl.’s Trial Ex. 24 at 1, No. 3.) 29. However, this release was conditioned on Plaintiff following certain requirements. The most important of these, for purposes of the issues in this case, states, in pertinent part:
Any physically assaultive/aggressive behaviors shall be reported to the District Forensic Coordinator or State Probation Officer. Violations of this condition may result in immediate return to custody or intensified treatment if recommended by the District Forensic Coordinator or Probation Officer. (Pl.’s Trial Ex. 1 at TG000002, ¶ K; see also Pl.’s Trial Ex. 24 at 1, No. 3.) 30. The following additional condition was imposed by law: It shall be a condition of every such probation that the person released shall be recommitted if he becomes dangerous to others or to himself for reasons of his mental illness, substance abuse, or intellectual disability. La. Code. Crim. Proc. art. 658(A) (2014). 31. From December 2008 to May 2014, as required under the terms of his conditional release, George resided in group homes operated by Progressive Health Care Providers (PHP), located in Baton Rouge, Louisiana. (Pl.’s Trial Ex. 24 at 2, No. 4; Martinez Test., Doc. 148 at 30:18–31:2, 35:13–36:22, 45:5–15; Hope Test., Doc. 149 at 175:3–11.) 32. “While living in group homes, George was under the joint supervision of the [Division of Probation and Parole (“DPP”)] of the [LDPSC] and [Community Forensic Services (“CFS”)] of the [LDH] . . . ” (Pl.’s Trial Ex. 24 at 2, No. 5.) The details of the respective duties of these two state agencies towards George and other NGRI acquittees is discussed in more detail infra.
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33. Although the location of the group home changed after 2008, George resided in a group home setting as required by his conditional release order until May 2014. (Id. at 2, No. 4; Martinez Test., Doc. 148 at 30:18–31:2, 35:13–36:22, 45:5–15; Hope Test., Doc. 149 at 175:3–11.)
34. The group homes in which George was placed were Intermediate Care Facilities for People with Developmental Disabilities (“ICF-DD”). (Martinez Test., Doc. 148 at 29:24–30:13.)
35. Intermediate Care Facilities for People with Developmental Disabilities (“ICFs-DD”) are funded through the Medicaid program and operated by the Defendant LDH. (Hope Test., Doc. 149 at 201:14–24.)
36. Medicaid is a federally mandated program that provides federal financial assistance to states, including Louisiana, so that that they can provide medical care to poor and disabled individuals. See 42 U.S.C. Section 1396b(a), 1396d(b); see generally Curtis v. Taylor, 625 F.2d 645 (5th Cir. 1980).
37. ICFs-DD are one of a number of residential services options operated under the auspices of the LDH. (See La. Rev. Stat. Ann. § 28:451.1–455.2 (2005)). They provide various services for those who reside there.
38. Due to his mental illness, George would occasionally engage in verbal aggression, noncompliance and threatening behavior at the group home and at the day program he attended during the week. His Behavioral Support Plan noted these outbursts, and the threatening episodes would usually occur when his medication was not correct. (Hope Test., Doc. 149 at 188:1–189:21; Pl.’s Ex. 17, TG000151–53.)
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39. Therefore, medication management was a critical service for George. As Ms. Martinez stated: A. Trussell is very different off medication. When he’s not taking medication, he’s very delusional, very nervous, agitated, untrustworthy, very disheveled, not – not the Trussell that I've known for -- for the years that I’ve known him. Q. When you say, ‘delusional,’ can you give me an example of how that would manifest itself? A. Trussell would talk a lot about god and the devil and Bob and – Q. Bob? A. Bob. When -- when Trussell -- the times that I've seen Trussell in what I say is a delusional manner, he talks about Bob. And Bob is a person that is in his life that fights Satan and fights the devil and steals money and tries to kill people. (Martinez Test., Trial Tr. vol. 1, 34:14–35:3.)
40. Prior to July 2013, Mr. George occasionally–two or three times a year–would be voluntarily admitted (sometimes at his request) to a hospital to have his medication adjusted. (See Martinez Test., Doc. 148 at 35:4–25.)
41. As previously mentioned, while living in group homes, George was under the joint supervision of the DPP of the LDPSC and of the CFS of LDH. (Pl.’s Trial Ex. 24 at 2, No. 5; see also La. Code Crim. Proc. art. 658(B) (2014).)
42. Defendants LDPSC and LDH received federal financial assistance and are public entities as defined by 42 U.S.C. Section 12131(1)(B). (Pl.’s Trial Ex. 24 at 4, No. 16.)
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F. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS’ OVERSIGHT RESPONSIBILITIES FOR PERSONS ON CONDITIONAL RELEASE
43. Defendant LDPSC is the state agency responsible for monitoring and providing services to persons placed on conditional release or probation pursuant to La. Code. Crim. Proc. art. 657. DPP is the division within LDPSC that carries out this duty and which supervised George’s conditional release. (Id. at 2, No. 6.)
44. Specifically, it is the responsibility of the DPP to ensure that the general and special conditions of the ordered supervision are followed for each acquittee (also sometimes referred to as “supervisee”). Its employees make personal contact with the supervisees pursuant to DPP’s policies and when otherwise necessary. The agency is responsible for monitoring supervisees for compliance with conditions, addressing any issues required by the courts, consulting with the forensic coordinator, drug testing supervisees, and arresting supervisees. (Id. at 2, No. 7.)
45. At the time of trial, Defendant LeBlanc was Secretary of LDPSC. Pursuant to La. R.S. 36:403, he was responsible for the administration, control, and operation of the functions, programs, and affairs of the LDPSC. (Id. at 3, No. 8.)
46. Defendant Gibbs was the Assistant Secretary of LDPSC and, as such, he directed the operations of DPP. Pursuant to La. R.S. 15:574.11(A), DPP provides for the investigation and supervision of adjudicated adult offenders. Also, pursuant to La. Code Crim. Proc. art. 658(B)(1), the DPP is charged with supervising individuals who have been placed on conditional release following a finding of NGRI. (Id. at 3, No. 9.)
47. Defendant Starks was the Director of the DPP. As such, he assisted in the administration, development, and implementation of policies of the DPP. (Id. at 3, No. 10.) 16

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48. Defendant Tubbs was a Probation and Parole Officer of DPP. (Id. at 3, No. 11; see also Doc. 148 at 64:14–19.)
49. Tubbs specialized in supervising mentally ill people for about seven years at the time of trial, including those acquitted as NGRI. (Doc. 148 at 64:20–65:14.)
50. Tubbs had the responsibility to monitor the conditional release of George. (Id. at 65:13–17.) G. LOUISIANA DEPARTMENT OF HEALTH’S OVERSIGHT RESPONSIBILITIES
FOR PERSONS ON CONDITIONAL RELEASE 51. Defendant LDH is a state agency that operates the CFS program and Eastern Louisiana
Mental Health System (“ELMHS”) in Jackson, Louisiana. (Pl.’s Trial Ex. 24 at 4, No. 13.) 52. Defendant LDH receives federal financial assistance. (Id. at 4, No. 16.) 53. Defendant Gee was the Secretary of the LDH. Pursuant to La. R.S. 36:254, the Secretary
of the LDH was responsible for the oversight, supervision and control of LDH and its divisions and was ultimately responsible for ensuring that LDH’s services for people with disabilities were provided in conformance with federal law. (Id. at 3, No. 12.) 54. Defendant Brady was employed by LDH as a District Forensic Coordinator (“DFC”) within the CFS program. (Id. at 4, No. 14; see also Doc. 151 at 9, ¶ 33 & Doc. 152 at 3, ¶ 15.) As such, Brady worked under the direction and supervision of the Secretary of the LDH. (Pl.’s Trial Ex. 24 at 3, No. 12.) 55. Brady had responsibility for monitoring individuals who were found NGRI and placed on conditional discharge and for implementing certain policies and procedures of LDH with respect to such persons. (Brady Test., Doc. 148 at 92:8–11, 99:12–101:15.) 56. One of Brady’s functions as a DFC was to facilitate inpatient hospitalization when other avenues for treatment failed. (Brady Test., Doc. 148, 102:10–104:15.)
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57. Brady visited George to perform “six-month evaluations” and provided reports regarding George’s compliance with the terms of his conditional release and recommending whether George should continue on conditional release. (See Brady Test., Doc. 148 at 107–108, in globo.)
58. Defendant Vosburg was a clinical psychologist and a consultant for CFS and LDH. (Pl.’s Trial Ex. 24 at 4, No. 15; Defs.’ Trial Ex. 8, in globo.)
59. Vosburg had responsibility for evaluating and providing mental health services, in accordance with the policies and procedures of LDH, to individuals placed on conditional discharge and persons found NGRI who had been placed at ELMHS. He provided recommendations as to placement, graduation/termination, revocation, and treatment. (See Pl.’s Trial Exs. 4 at TG000005, ¶ 2; 5 at TG000006; 6 at TG000007; 8 at TG000010; 9 at TG000011; 13 at TG000017; and 14 at TG000019.)
60. Vosburg had evaluation and oversight responsibilities regarding George’s conditional release since 2009 and over the course of that time had evaluated George on at least eight occasions. (Brady Test., Doc. 148 at 107:20–108:5; Pl.’s Trial Exs. 4 at TG000005; 5 at TG000006; 6 at TG000007; 8 at TG000010; 9 at TG000011; 13 at TG000011; and 14 at TG000019; Defs.’ Trial Ex. 8, in globo.)
H. TRUSSELL GEORGE’S ARREST AND INCARCERATION IN JULY 2013 61. On May 24, 2013, Brady submitted an episode report to the state district court indicating
that staff at Progressive Health Care had reported to him that George “had two episodes of verbal aggression and verbal threats within the last two (2) weeks to have one of his family
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members attack one of their direct care staff members.” (Pl.’s Trial Ex. 8 at TG000010; see also Defs.’ Trial Ex. 3 at 0001.) 62. In this report, Brady also noted that, although George had been recently hospitalized for approximately two weeks at Beacon Behavioral Hospital in Lutcher, Louisiana, and had received a medication adjustment, “his behavior seemingly has escalated towards direct care personnel.” (Pl.’s Trial Ex. 8 at TG000010; Defs.’ Trial Ex. 3 at 0001.). 63. This report also stated that Brady “spoke to his probation officer [Defendant Tubbs] on 5/23/13 who [would] be petitioning this honorable court for a status review to discuss these recent events and plan of action to address these concerns.” (Pl.’s Trial Ex. 8 at TG000010; Defs.’ Trial Ex. 3 at 0001.) 64. On June 10, 2013, Tubbs sent a letter to the state district court advising “that in the last 4 weeks [George] has been verbally aggressive with staff over food” and requested that a review hearing be scheduled to address George’s violations of the group home’s rules. (Pl.’s Trial Ex. 9 at TG000011; Defs.’ Trial Ex. 4 at 0001; Tubbs Test., Doc. 148 at 74:23–75:5.) 65. For reasons not explained in the evidence, the State District Court did not respond to that request for a hearing.
Q. And you don’t know if a court ever set a date for a hearing on these issues, did it?
A. I don’t believe they did on that letter. (Tubbs Test., Doc. 148 at 75:24–76:1.) 66. In addition, staff personnel at the group home advised Tubbs that they did not want George at their group home because he kept causing problems. (Id. at 82:8-10).
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67. “On or about 7-15-13, [George] got aggressive with a staff member at his day program and they had to send him to the mental hospital due to his attitude. He was released from the hospital on 7-25-13.” (Defs.’ Trial Ex. 5 at 1–2.) According to Tubbs’ testimony at trial, he was told that George had assaulted or physically harmed a staff member. (Tubbs Test., Doc. 148 at 78:2–79:25.)
68. On July 25, 2013, the day of George’s release from the mental hospital, Tubbs met with George and felt something “wasn’t right” and that “the medicine that they adjusted wasn’t working for him.” (Id. at 80:7–9.)
69. “On [July 27, 2013], [George] told staff that he was going to do something to them if they did not bring him to get his hair cut. Then [he] told another client that he was going to kill them.” (Defs.’ Trial Ex. 5 at 1–2.)5
70. At this point, Tubbs conferred with Brady, who in turn consulted with Vosburg. (Tubbs Test., Doc. 148 at 84:2–5; 124:17–23.) Tubbs told Brady that George was being “very aggressive.” (Id. at 124:24–125:23.)
71. At this point Brady inquired whether there were any beds available at ELMHS and was told there were none. He informed Tubbs of this fact. (Tubbs Test., Doc. 148 at 84:6–10. See also Brady Test., Doc. 148 at 122:4-18; 124:22-23; 126:3-13).
72. Tubbs also consulted with his supervisor regarding the decision of whether to arrest George. (Tubbs Test., Doc. 148 at 84:2–24.)
73. Brady, Tubbs and Vosburg jointly decided to have George arrested and placed in the EBRPP. (Brady Test., Doc. 148 at 124:12–125:23.)
5 In his trial testimony, Tubbs testified that this incident occurred on July 25, 2017. (Doc. 148 at 80:10–13.) This discrepancy is not important to the Court’s analysis.
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Q. So the decision to arrest Mr. George in July 2013 was made collectively by [Brady], Dr. Vosburg and Mr. Tubbs; is that correct?
A. Yes, Ma’m [sic].
(Id. at 125:20–23.) 74. On July 29, 2013, Tubbs wrote a letter to Progressive stating that “[George] has broken his
conditions of probation for the 3rd time by being aggressive with staff.” (Pl.’s Ex. 10 at
TG000012.). Employees of George’s day program drove George to Tubbs’ office, where
Tubbs decided to arrest him and have him incarcerated in EBRPP. (Tubbs Test., Doc. 148
at 81:20–82:24.)
75. Tubbs’ “Detainer Notification, Affidavit of Probable Cause, and Motion for Hearing” to Revoke Probation6 sets forth the basis for Plaintiff’s arrest on July 29, 2013:
Around June 1st 2013, he was aggressive with staff because he could not get a hamburger for dinner one night. Staff gave him a sandwich and he got in the face of a staff member and started yelling “you better get me a hamburger”.
On or about 7-15-13, he got aggressive with a staff member at his day program and they had to send him to the mental hospital due to his attitude. He was released from the hospital on 7-25-13.
On 7-27-13, the subject told staff that he was going to do something to them if they did not bring him to get his hair cut. Then told another client that he was going to kill them.
(Pl.’s Trial Ex. 11 at TG000014; Defs.’s Trial Ex. 5 at 1–2.)
76. Tubbs testified that he did not decide to arrest George because he suspected George of having committed a crime;7 indeed, no criminal charges were ever filed against George for
6 As is discussed, infra, this affidavit and motion were not executed and filed until August 12, 2013. 7 Nonetheless, in Pl.’s Trial Ex. 19 at TG000206–207, Tubbs classified George’s conduct as a “Level 3 violation – Misdemeanor activity (serious violent).” Tubbs continued, “[George] threatened staff and other clients with violence
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any of the activities that gave rise to his arrest. (Tubbs Test., Doc. 148 at 82:14–17.) Tubbs testified that the decision to arrest George was in accordance with LDPSC policy. (Id. at 84:17–20.) 77. Rather, the decision to arrest George was made because of the consensus reached among Tubbs, Brady and Vosburg that George was “a danger to himself or others.” (Brady Test., Doc. 148 at 124:24–125:23.) Brady considered the behaviors that George was exhibiting at the time of his arrest to be a violation of his conditional release. (Id. at 121:24–122:1.) 78. According to Brady, George was “transported to the EBR Parish Jail on 7/29/13 secondary to aggressive and verbally threatening behaviors towards his peers.” (Pl.’s Trial Ex. 15 at TG000039.) He states that Vosburg, George’s “forensic consultant[,] recommended that he be brought to [ELMHS] for long-term treatment and evaluation services.” (Id.) 79. On July 29, 2013, the date of George’s arrest, Tubbs also “[c]alled Judge Moore[’s] section and they got my letter but no court date has been set as of today.” (Pl.’s Trial Ex. 19 at TG000206.) The letter Tubbs is referring to is presumably the June 10, 2013 letter sent to Judge Moore asking the Court to “set a review hearing to address his expiration date and violations.” (Pl.’s Trial Ex. 9 at 1.) For whatever reason, this information was not elicited from Tubbs during his testimony. As mentioned above, Tubbs’ June 10 request for a hearing was never responded to and Tubbs waited until August 12, 2013 to file a written motion to revoke George’s probation.
for the 3d [sic] time. The group home wanted him out due to his behavior.” Tubbs classified his response to George’s conduct as “Level 3 Action – Arrest/Detain with Custodial Treatment… Warrant/Motion and Order to Revoke.”
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80. Plaintiff contends that his behavior at the time of his July 29, 2013 arrest was not substantially different than what he had displayed in the past and did not give probable cause for his arrest and confinement.
81. Defendants counter that his conduct, beginning in May 2013 and escalating up until the time of his arrest on July 29, 2013, was substantially worse and had not been resolved by the May and July hospitalizations. Thus, argue Defendants, George’s conduct gave Tubbs probable cause for his arrest.
82. Another main point of contention in the case revolves around why George was taken to EBRPP rather than ELMHS or, alternatively, to a private psychiatric facility as had been done many times in the past, including from July 15 to July 25, 2013.
83. Plaintiff argues that Tubbs and Brady were well aware that George had received treatment at a number of mental health facilities in the community over the years, including at Greenwell Springs, Cypress Hospital, Our Lady of the Lake Hospital, and Beacon Behavioral Health. (Doc. 151 at 15, ¶ 56) (citing Tubbs Test., Doc. 148 at 78–80, in globo.)
84. Further, argues Plaintiff, Tubbs and Brady were well aware of Mr. George’s need for psychiatric medication. (Doc. 151 at 14, ¶ 53.) As Tubbs testified: Q. And you knew that the symptoms of Mr. George’s illness, like his hallucinations and aggressive behaviors, became worse when he missed his medication; isn’t that right? A. Yes. (Tubbs Test., Doc. 148 at 89:21–24; see also Brady Test., Doc. 148 at 100:20–101:25.)
85. Tubbs and Brady were also well aware that these hospitalizations were used to manage his behaviors and adjust his medication. (Doc. 151 at 14, ¶ 54.) Tubbs testified:
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Q. And the purpose of those hospital stays was also to control Mr. George’s hallucinations; is that right?
A. Yes. Q. And in your experience, if Mr. George missed even one or two doses
of his medication, you believe that he wasn’t able to control the voices in his head? A. It was pretty obvious, yes, when he got off his medicines. (Tubbs Test., Doc. 148 at 69:20–70:2; Brady Test., Doc. 149 at 17:16–25.) 86. Plaintiff stresses that, at the time of George’s arrest, Tubbs and Brady were well aware that there was a direct relationship between the medication George was taking for his mental illness and the behavior that led to his arrest. (Doc. 151 at 14-15, ¶ 55) (citing Tubbs Test., Doc. 148 at 80–81, in globo, 89–90, in globo.) 87. Defendants reply that they tried to place George at ELMHS but there were simply no beds available at that time. (Brady Test., Doc. 148 at 122:4–18.) 88. Brady testified that, following his incarceration at EBRPP and up until his release on August 23, 2013, they continued to check on the availability of beds at ELMHS and “there [were] no beds available, otherwise we would have had him in the hospital.” (Brady Test., Doc. 148 at 127:21–22.)8 89. Neither Tubbs nor Brady checked to see if beds were available at another facility. (Tubbs Test., Doc. 148 at 86:13–24, 89:4–12; Brady Test., Doc. 148 at 123:6–11.) 90. Defendants offer several reasons for this. First, in response to direct questioning of the Court outside the presence of the jury, both Tubbs and Brady testified that when a NGRI acquittee threatens violence, they believed they had only two choices: to admit him to
8 While the questioning refers to George being released on August 21, 2013, the actual date of release was, according to the stipulation of the parties, August 23, 2013. (Pl.’s Trial Ex. 24 at 4, No. 17.) This discrepancy plays no role in the Court’s analysis.
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ELMHS, if a bed was available, or place him in jail until a bed could be found there. (Tubbs Test., Doc. 149 at 208:18–211:5; Brady Test., Doc. 149 at 214:10–14.)
Q. So by your way of thinking, there were two choices: first ELMHS, if there was a bed available, but if not, your only other choice was the parish prison?
A. Correct. Until we could go in front of the judge and the judge could make a decision on what to do with him.
(Tubbs Test., Doc. 149 at 211:1–5.) 91. Furthermore, said Tubbs, “At that time when he’s threatening violence towards staff . . .
Jackson Hospital would be - - in my opinion, would be the only place that could handle him at that point.” (Id. at 208:22–24.) Tubbs believed that George’s behavior was such that he needed more than a medication adjustment at this time. (Tubbs Test., Doc. 148 at 89:8–12.) 92. In addition, Tubbs testified that he didn’t consider another hospital for George because that hospital wouldn’t be able to transfer George to court “to address the violation of his conditions of probation.” (Tubbs Test., Doc. 148 at 87:5–88:18.) 93. Defendants also argue that, even if Tubbs or Brady had tried to get George admitted to a private hospital, it is unlikely they would have been successful “since nobody wants ELMHS’s patients, particularly those having forensic involvement, because they worry about their ability to manage them from a security standpoint.” (Doc. 152 at 7, ¶ 62) (citing Kelly Test., Doc. 149 at 75:3–8.) 94. As for transferring Mr. George to Central State Hospital, another state facility, Defendants contend it usually has a long waiting list since they have other referring facilities besides ELMHS and it takes a long time to get someone admitted there. (Id. at 7, ¶ 61) (citing Kelly Test., Doc. 149 at 74:18–24.)
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95. Finally, Tubbs testified that, on arresting George, he contacted Lisa Burns, the social worker at EBRPP, and informed her that George was being arrested. Based on this discussion, it was his understanding that Burns would follow up and provide him with mental health treatment and medication management. (Id. at 4, ¶ 25) (citing Tubbs Test., Doc. 148 at 83:14–17.) This was also Brady’s belief. (Brady Test., Doc. 149 at 218:12–17.)
96. Plaintiff faults Tubbs and Brady for not checking on Plaintiff while in EBRPP. (Doc. 151 at 15, ¶ 60.) Defendants respond that Tubbs was not required to check on George after placing him in jail. (Doc. 152 at 4, ¶ 29) (citing Tubbs Test., Doc. 148 at 89:8–12.) Brady testified by the time he went to check on him, George had already been discharged. (Brady Test., Doc. 149 at 14:12–15:16.)
97. For reasons not explained in the record, Tubbs waited until August 12, 2013, 15 days after George had been incarcerated at EBRPP, before moving for revocation and requesting a hearing. (Pl.’s Trial Ex. 11; Defs.’s Trial Ex. 5; Tubbs Test., Doc. 148 at 77:24–78:8.)
98. It appears from the record that George was released after a hearing before Judge Moore on August 23, 2013, not in response to Tubbs’ motion but “only after the [George’s lawyer] filed a petition for habeas corpus on his behalf in the Nineteenth Judicial District Court of East Baton Rouge.” (Doc. 42 at 14, ¶ 57.) Defendants admit that, “[a]s a result of the [habeas corpus] hearing, Judge Chip Moore lifted the probation hold and ordered Mr. George to continue mental health treatment.” (Doc. 161 at 6.) I. EVENTS FOLLOWING AUGUST 23, 2013 RELEASE FROM EBRPP
99. After his release of August 23, 2013, George was taken directly to Baton Rouge General Hospital and involuntarily committed. (Brady Test., Doc. 149 at 16:11–14.)
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100. At that time, he was grossly psychotic and off his medication. (Id. at 16:5–6.) 101. Plaintiff alleges that by the time George was released from the EBRPP on August 23, 2013,
he had suffered a significant decline in his mental health and never fully recovered to his pre incarceration condition. (Martinez Test., Doc. 148 at 43:1–4, 44:1–18; Hope Test., Doc. 149 at 192:7–19; Smith Test., Doc. 149 at 37:11–17.) 102. Between the time of his discharge on August 23, 2013, and the events of July 1, 2014, the second incident sued upon, George was hospitalized on four occasions, three at private hospitals and finally back at ELMHS. (Brady Test., Doc. 149 at 16:11–18, 17:16–19, 18:1– 23.) J. TRUSSELL GEORGE’S DECEMBER 2013 TO DECEMBER 2014 CONDITIONAL
RELEASE 103. In December 2013, prior to the expiration of Mr. George’s five-year conditional release
period, LDH’s District Forensic Coordinator, Brady, requested that George’s conditional release be extended an additional year. (Pl.’s Trial Ex. 12 at TG000015-16.) 104. On April 25, 2014, Vosburg did a comprehensive examination and review of prior records for purposes of a risk assessment. (Defs.’s Trial Ex. 8 at 0002.) In it, he concluded that “there is a high probability of non-compliance with treatment and remediation attempts without continuation of supervision under probationary requirements.” (Id. at 0010.) 105. On May 14, 2014, the Nineteenth Judicial District Court extended Mr. George’s conditional release to December 14, 2014. (Pl.’s Trial Ex. 24 at 4, No. 18.)
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K. TRUSSELL GEORGE’S ARREST AND INCARCERATION IN 2014 106. Within a week after the May 14, 2014 hearing, Brady arranged for Mr. George to be
involuntarily hospitalized at ELMHS. (Brady Test., Doc. 149 at 18:1–21; Pl.’s Trial Ex. 13 at TG000017.) 107. According to Dr. Brad McConville, one of George’s treating psychiatrists at ELMHS, ELMHS has approximately 20 psychiatrists, five of whom are full-time. They also have psychologists, full-time nursing staff, dieticians, occupational therapists, recreational therapists and social workers. (McConville Test., Doc. 149 at 155:1–16.) 108. During the summer of 2014, George was at the East Acute Unit (EAU) at ELMHS. At this time, psychiatrist Dr. Clay Kelly oversaw George’s care at ELMHS while George’s regular psychiatrist, Dr. Ahmad, was on vacation. (Kelly Test., Doc. 149 at 68:1–25.) 109. On June 3, 2014, Kelly issued an order to transfer George to the Cedarview unit, an “intermediate treatment unit in the civil division.” (Kelly Test., Doc. 149 at 68:20–69:3; Defs.’s Trial Ex. 9 at 1604.) 110. Cedarview was a “slightly less restrictive unit than East Acute Unit,” and Kelly thought that the transfer to the Cedarview unit was a reasonable step for George. (Kelly Test., Doc. 149 at 70:1–6.) According to Kelly, the whole nature of acute treatment is that, once patients are reasonably stabilized, they are moved to a less restrictive environment. (Kelly Test., Doc. 149 at 72:11–14.) 111. Dr. Ahmad had wanted to transfer rather than release George because he did not believe that George was ready to be returned to a group home. (Kelly Test., Doc. 149 at 69:22–24.)
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112. But when Dr. Kelly proposed this move to George on July 1, 2014, George refused to go. (Kelly Test., Doc. 149 at 69:4–72:18–24.)
113. Kelly asked Vosburg to come to the July 1, 2014, meeting with George to discuss moving him to the Cedarview unit and to help explain the plan to gradually step him down out of the acute unit to a less restrictive environment. (Kelly Test., Doc. 149 at 77:10–16.)
114. At the July 1, 2014 meeting, Vosburg informed George that he had the option of moving to a different unit within the ELMHS system but, if he refused the transfer, they could not force him to go the suggested unit. In that event, Vosburg told George, the next logical step would be to place him at the Forensics Unit at ELMHS. (Pl.’s Trial Ex. 13; Kelly Test., Doc. 149 at 79:2-20.)
115. Vosburg further informed George that, if he refused transfer to a different unit, there might not be a bed available at the Forensics unit. In that case, Mr. George would have to wait in jail until a bed became available. (Pl.’s Trial Ex. 13 at TG000017.)
116. George immediately resisted the proposed transfer. (Kelly Test., Doc. 149 at 79:13–17.) He became “very angry” (Pl.’s Trial Ex. 13 at TG000017), and even asked to be sent to jail because he did not want to go to the Cedarview unit. (Kelly Test., Doc. 149 at 78:13–15.) George started yelling at Drs. Kelly and Vosburg, using threatening language toward them. (Kelly Test., Doc. 149 at 79:21–24.)
117. Security guards were called to restrain George in the hallway while Vosburg was escorted off of the unit for his own protection. (Kelly Test., Doc. 149 at 80:1–6.)
118. Kelly contacted the probation officer assigned to George and asked him to remove George from the unit, although Kelly did not instruct the probation officer to take George to jail.
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(Kelly Test., Doc. 149 at 80:13–21.) Vosburg did recommend that George be incarcerated at EBRPP. (Pl.’s Trial Ex. 14.) 119. As a consequence of this confrontation, George was arrested and transported to EBRPP by a representative of the DPP for violating the terms of his conditional discharge. (Pl.’s Trial Ex. 13, 14.) 120. Brady was not present during the evaluation of George on July 1, 2014, and found out about the arrest from Vosburg after it had occurred. (Brady Test., Doc. 149 at 18:22-19:7.) 121. According to the Narrative Report created by Bobby Castello dated July 1, 2014, Castello “[r]eceived a call from Dr. Vosburg at the Feliciana Forensic Facility who told me subject… has been violent and disruptive and has not been taking his medicine. Dr. Vosburg wanted subject removed from the facility and brought before Judge Moore for revocation. Myself and Agent Hooge proceeded to ELMHS, arrested subject and transported him to the EBRPP without incident. Eric Brady, DFC, called and told me he would get a court date and let me know when it would be.” (Pl.’s Trial Ex. 19 at TG000204.) That court date did not occur until August 22, 2014. (See id. at TG000203.) 122. According to Brady’s Conditional Release Monthly Review Report of July 1, 2014, Brady stated he would “submit [an] episode report and set [a] motion order to court as well as contact probation officer to assist with transportation to jail.” (Pl.’s Trial Ex. 15 at TG000027.) 123. Kelly’s decision concerning George on July 1, 2014, was made in light of his history of charges of violence, his previous threatening behavior, and the difficulty George had managing his impulses and rage over the years. (Kelly Test., Doc. 149 at 86:18–22.)
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124. Dr. Kelly was also concerned for the safety of the other patients should Mr. George remain on the unit. (Kelly Test., Doc. 149 at 87:7–15.)
125. McConville, another psychiatrist who had treated George, testified that George’s violent conduct on July 1, 2014, was not unique. “Other times, he was very influenced by his delusions, would attack staff members. He even got into an altercation, fell and broke his jaw, which had to be surgically repaired. He had incidents like that a lot.” (McConville Test., Doc. 149 at 164:22–25.)
126. At this point the Cedarview unit would not have accepted George because of his level of anger and rage. (Kelly Test., Doc. 149 at 81:5–7.)
127. Kelly testified he did not try to give George any acute treatment such as an injection because he felt George was choosing not to comply with his recommended treatment. (Kelly Test., Doc. 149 at 81:22–82:11.)
128. The decision to remove George from ELMHS on July 1, 2014, was made by Vosburg and Kelly, although Brady did not disagree with that decision. (Brady Test., Doc. 149 at 19:22– 20:6.)
129. According to Brady’s Episode Report, “I consulted with Dr. Vosburg on 7/1/14 after his evaluation with George. He recommended revoking his probation and having probation officer remove him from EAU and placing him in [EBRPP] where he remains at this time. Our office is requesting a revocation hearing to have his probation revoked and then transfer[] Mr. George back to the Forensic Hospital for longer-term treatment and hospitalization.” (Pl.’s Trial Ex. 14.)
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130. On August 22, 2014, 52 days after he was incarcerated, George was taken to state court. At the conclusion of the hearing, “Judge Moore remanded subject back to the Forensic Facility and said he wanted a report from the doctors in a couple weeks and if subject was doing well he could be transferred back to the group home. If subject was not doing well he would continue to reside at the Forensic Facility for further treatment.” (Pl.’s Trial Ex. 19 at TG000203.)
131. Three days later, on August 25, 2014, George was released from EBRPP and placed back at ELMHS. (Pl.’s Trial Ex. 24 at 4, No. 19.)
132. George was not charged with any crime immediately prior to or during the 55 days he was incarcerated between July 1 and August 25, 2014. (Id. at 4, No. 20.)
133. At a hearing before state court Judge Richard “Chip” Moore on September 23, 2014, “[s]everal Doctors testified and patient was returned back to the hospital for treatment.” (Pl.’s Trial Ex. 1 at TG000024.) Judge Moore ordered George to remain at ELMHS and his placement reviewed at a hearing scheduled for December 11, 2014. (Pl.’s Trial Ex. 24 at 5, No. 21.) FINDINGS OF FACT
134. In making its findings of fact and conclusions of law, the Court has considered the record as a whole. The Court has observed the demeanor of witnesses and has carefully weighed their testimony and credibility in determining the facts of this case and drawing conclusions from those facts. All findings of fact contained in this ruling that are more appropriately considered conclusions of law are to be so deemed. Likewise, any conclusions of law more appropriately considered a finding of fact shall be so classified.
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135. It is important at the outset of these findings to emphasize that the only relevant factual questions are those which inform the issues in this case: a. Did Defendants have in place policies, practices, or procedures causing or allowing NGRI acquittees to be arrested and incarcerated at a correctional facility solely for a violation (or anticipated violation) of the conditions of the acquittee’s release, even when no crime had been committed? b. Were George’s arrests or incarcerations made pursuant to this policy? c. Even if there were no such policies, procedures or practices, under the specific facts of this case, did George’s arrests and subsequent incarcerations at a correctional facility, solely because of a violation of his conditions of release, in the absence of a criminal arrest, violate his substantive due process rights under the United States Constitution and/or his statutory rights under Section 504 and the ADA?
136. Thus, while the Court has considered and comments on other issues presented at trial, its conclusions and ruling are based only on those facts relevant to these issues. A. JULY 29, 2013 ARREST AND INCARCERATION
137. At the time of the events sued upon, George was a person with a mental illness who had been found NGRI and was on conditional release subject to his abiding by the conditions set forth in a conditional release order of the Nineteenth Judicial District Court of the State of Louisiana. (Order, Pl.’s Trial Ex. 1 at TG000001.)
138. From the time of his conditional release in 2009 until May 2014, George resided primarily in group homes (known more technically as Intermediate Care Facilities for the Developmentally Disabled) but was occasionally admitted to private hospitals when his
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behavior and need for medication adjustment warranted. (Trial Stipulations, Pl.’s Trial Ex. 24, Trial Stipulation 4; Martinez Test., Trial Tr. vol. 1, Doc. 148 at 35:4–21.) 139. Despite being hospitalized in May 2013, George’s aggressive conduct escalated in frequency and severity during May and June. On May 24, 2013, Brady submitted an episode report to the state district court indicating that staff at Progressive Health Care had reported to him that George “had two episodes of verbal aggression and verbal threats within the last two (2) weeks to have one of his family members attack one of their direct care staff members.” (Pl.’s Trial Ex. 8 at 1; Defs.’ Trial Ex. 3 at 1.) 140. In this report, Brady also noted that, although George had been recently hospitalized for approximately two weeks at Beacon Behavioral Hospital in Lutcher, Louisiana, and had received a medication adjustment, “his behavior seemingly has escalated towards direct care personnel.” (Pl.’s Trial Ex. 8 at 1; Defs.’ Trial Ex. 3 at 1.) 141. Because of George’s escalating behavior, Tubbs wrote Judge Richard “Chip” Moore on June 10, 2013, to report his behavior and ask the court to “set a review hearing to address his expiration date and violations.” (Pl.’s Trial Ex. 9 at TG000011; Defs.’ Trial Ex. 4 at 0001; Tubbs Test., Doc. 148 at 75:1–9.) The Court never responded to this request. (Tubbs Test., Doc. 148 at 75:24–76:1.) 142. Because of continued aggressive behavior in July, George was hospitalized from July 15 until July 25, 2013. (Defs.’ Trial Ex. 5 at 1.) But despite this hospitalization, Brady felt George’s medication was not working and felt something “wasn’t right” and that “the medicine they adjusted wasn’t working for him.” (Brady Test., Doc. 148 at 80:4–9.)
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143. This concern was vindicated when “[o]n July 27, 2013, [George] told staff that he was going to do something to them if they did not bring him to get his hair cut. Then [he] told another client he was going to kill them.” (Defs.’ Trial Ex. 5 at 1.) Tubbs was told by staff at the group home that George assaulted or physically harmed a staff member. (Tubbs Test., Doc. 148 at 79:2-14.) Although not noted in his records, the Court accepts this testimony as credible.
144. While Tubbs testified that he arrested George even though George had committed no crime, (Tubbs Test., Doc. 148 at 82), the evidence shows that George’s behavior was arguably criminal. La. Rev. Stat. Ann. §§ 14:33, 35, 36, 38. Indeed, Tubbs himself classified George’s conduct as a “Level 3 violation – Misdemeanor activity (serious violent).” Tubbs continued, “[George] threatened staff and other clients with violence for the 3d [sic] time. The group home wanted him out due to his behavior.” Tubbs classified his response to George’s conduct as “Level 3 Action – Arrest/Detain with Custodial Treatment… Warrant/Motion and Order to Revoke.” (Pl.’s Trial Ex. 19 at TG000206–207.)
145. George’s conduct during these months reasonably led Defendants Tubbs, Brady, and Vosburg to believe they had probable cause to arrest George for the violation or imminent violation of his terms of conditional release, specifically, these two terms: a. Any physically assaultive/aggressive behaviors shall be reported to the District Forensic Coordinator or State Probation Officer. Violations of this condition may result in immediate return to custody or intensified treatment if recommended by the District Forensic Coordinator or Probation Officer. (Pl.’s Trial Ex. 1 at TG000002, ¶ K; see also Pl.’s Trial Ex. 24 at 1, No. 3.) b. It shall be a condition of every such probation that the person released shall be recommitted if he becomes dangerous to others or to himself
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for reasons of his mental illness, substance abuse, or intellectual disability. La. Code. Crim. Proc. art. 658(A). 146. In accordance with the policies, practices and procedures of both LADPSC and LDH (Tubbs Test., Doc. 148 at 84:17-20), after consultation with Vosburg and Brady (Brady Test. Doc. 148 at 125:20-23), because they believed George had violated conditions of his release, (Brady Test., Doc. 148 at 121:24-122:1), and because they believed George presented a danger to himself and others, (Brady Test., Doc. 148 at 124:17-23), Tubbs effected George’s arrest on July 29, 2013. 147. However, despite the requirement of La. Code Crim. Proc. art. 658(B)(6) that the arrest of an acquittee be preceded by a motion of the court or District Attorney or probation officer, no such motion was filed, and no request was made to revoke George’s conditional release until August 12, 2013, 14 days after his arrest and incarceration, when Tubbs filed his “Detainer Notification, Affidavit of Probable Cause and Motion for Hearing to Revoke Probation.” (Defs.’ Trial Ex. 5 at 1-2; Pl.’s Trial Ex. 19 at TG000206.) 148. Despite the requirement of La. Code Crim. Proc. art. 658(B)(6) that a hearing take place “immediately” following the arrest to “consider the violations listed . . . ,” there is no evidence in the record that such a hearing ever took place following George’s July 29, 2013, arrest. The hearing which occurred on August 23, 2013 was a response, not to a motion or request by state actors, but to Plaintiff’s petition for habeas corpus. 149. And although a warrantless arrest is authorized by La. Code Crim. Proc. arts. 658(B)(1) and 899(B), there is no evidence in the record that the procedure required by these statutes was followed, i.e., that “a written report showing in what manner the defendant violated, or was
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about to violate, a condition of his probation” was “immediately” submitted. Rather, that report was not submitted until August 12, 2013. (Defs.’ Trial Ex. 5.) 150. The only evidence in the record regarding any contact with the court about George’s arrest on the day of his arrest shows that Tubbs “[c]alled Judge Moore[’s] section and they got my letter [presumably, his letter of June 10, 2013] but no court date has been set as of today.” (Pl.’s Trial Ex. 19 at TG000206.) 151. While not found in record evidence, Plaintiff’s Second Amended Complaint alleges it was his counsel’s petition for habeas corpus that effected George’s August 23, 2013, release. (Second Amended Complaint, Doc. 42 at 14, ¶ 57.) Defendants agree George’s attorney filed a petition for habeas corpus “which appears to have been filed the same day as the hearing. As a result of the hearing, Judge Chip Moore lifted the probation hold and ordered Mr. George to continue mental health treatment.” (Doc. 161 at 6.) 152. Hope’s testimony shows that there was a court hearing on that day where she talked to the judge, “I guess off-the-record . . . .” (Hope Test., Doc. 149 at 192-93.) 153. Initially, Vosburg, Brady and Tubbs intended that, following his arrest, George be admitted to ELMHS. However, after inquiring, Brady was told that there was no bed available there. (Tubbs Test., Doc. 148 at 86:13–24; Brady Test., Doc. 148 at 122:4–127:23.) Brady also testified, and the Court accepts this testimony as true, that during the entire period of George’s 2013 incarceration, Brady continued to inquire as to the availability of a bed at ELMHS but was told each time that there was none. (Brady Test., Doc. 148 at 127:1-22.) 154. Tubbs testified that he did not attempt to get George admitted to a private hospital because he felt he could not do so without an order of the Court. (Tubbs Test., Doc. 149 at 208:2–
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211:5.) Unexplained in the record is how he was able to admit George to private hospitals, seemingly without a court order, on numerous previous occasions, including in May and June 2013 and on August 23, 2013, when George was released from EBRPP and immediately admitted to Baton Rouge General Hospital. 155. Tubbs also said that he did not try to get George into a private hospital because, given the level of George’s aggressive conduct, ELMHS was the only facility that could handle Plaintiff at that time. (Tubbs Test., Doc. 149 at 208:2–24.) However, this seems to be belied by Brady’s Episode Report of March 2010 to Judge Moore that, following similar conduct in May–July 2013,9 George was not placed in ELMHS nor was he arrested and incarcerated. Rather, “[t]hey were able to transport him to Our Lady of the Lake Hospital for emergency evaluation. He was later transferred to Cypress Hospital for inpatient acute psychiatric hospitalization where he remains at this time.” (Pl.’s Trial Ex. 5.) Furthermore, Brady and Tubbs were able to have George admitted to private hospitals in both May and July 2015, and, indeed on August 23, 2013, although his conduct during that time was similar to that which provoked his arrest and incarceration. 156. Tubbs stated in his deposition that he didn’t try to get George into a private hospital because such a hospital could not transport him to court “to address the violations of his conditions of probation.” (Tubbs Test., Doc. 148 at 87:19–88:14.) This assertion seems disingenuous at best since there is no evidence to suggest that LDPSC could not have arranged for such transportation (Id. at 88:15–18) and, furthermore, Tubbs waited 14 days before moving the court for a hearing.
9 George “shoved male staff[,] not causing physical harm;” threatened “homicidal ideations” [sic] towards staff members and “accused a male staff member of trying to poison him.” (Pl.’s Trial Ex. 5 at TG000006.)
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157. In view of the many occasions in which Brady and Tubbs had been able to place George in a private facility, Tubbs’ statement that such a facility would not likely have taken George because of concerns about their “ability to manage [him] from… a security standpoint” (Kelly Test., Doc. 149 at 75:6–8; see also Tubbs Test., Doc. 149 at 208:2–24) is likewise suspect.
158. On the other hand, Plaintiff offered no direct evidence that if Tubbs and Brady had tried to place George in a private or other state hospital on July 29, 2013, they would have been successful. B. ADEQUACY OF MEDICAL CARE AT EBRPP
159. The Court finds that while EBRPP provided some medical and psychiatric care for George (See, e.g. Burns Test., Doc. 149 at 106:13–25), this care was not comparable with the care he would have received at ELMHS or a private hospital.
160. Indeed, there are important differences between the care available there and that available at ELMHS.
161. When George entered EBRPP, he was not allowed to bring his medicines with him and new medicines needed to be ordered. This resulted in George being without his medicines from around July 31 until August 10, 2013. (Burns Test., Doc. 149 at 112:8–115:16, 119:1– 18.) 10
162. Furthermore, jails cannot force inmates to take medications. (Brady Test., Doc. 149 at 15:20–24.) By contrast, ELMHS is “a psychiatric hospital with the ability to force medications on its patients.” (Id. at 19:8–10.)
10 In George’s case, the staff at Progressive attempted to bring him his medications on the date of his July 2013 arrest, but “staff were turned around.” (Hope Test., Doc. 149 at 194:16.)
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163. This resulted, for instance, in George receiving only a percentage of his medications while in EBRPP. Specifically, George received his Zantac only 46% of the time in the morning and 88% at night (Burns Test., Doc. 149 at 115:4–16); Depakote (a mood stabilizer) 8% in the morning and 76% at night (Id. at 124:7–13); Cogentin (to treat side effects of antipsychotic drugs), 8% in the morning and 67% at night (Id. at 124:16–125:1); and Clonazepam (an anti-anxiety drug) 4% in the morning and 29 % at night. (Id. at 125:2–7.)
164. Furthermore, there were many services available at ELMHS not available at EBRPP. Kelly testified that these services included, for instance, treatment track groups (probably a focus track) led by social workers. (Kelly Test., Doc. 149 at 103:1–21.)
165. While in EBRPP, George was relegated to solitary confinement for his own safety. (Brady Test., Doc. 149 at 14:5–11, 20:21–21:1–7.) ELMHS staff, on the other hand, would have given George “as much freedom as possible,” and he would have been allowed to interact with the 20 other patients on the unit. (McConville Test., Doc. 149 at 163:11–164:13.)
166. The Court finds that Plaintiff’s condition worsened during his stay at EBRPP. While there was some evidence that his condition was made permanently worse, the Court finds it unnecessary to decide this issue since Plaintiff’s claims for damages were dismissed.
167. As to Plaintiff’s claims under the ADA and Section 504, the jury found that Defendants had not discriminated against George based on his disabilities or failed to provide him with a reasonable modification appropriate for his disabilities. (Doc. 144 at 1-2.) As is discussed in the Conclusions of Law section, under the standard the Court is bound to apply in evaluating these jury findings, the Court concludes that there was no error in either finding.
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C. JULY 2014 ARREST AND INCARCERATION 168. At the time of George’s July 1, 2014, arrest, he was in the Acute Unit ward at ELMHS. 169. Ironically, the dispute arose as George’s psychiatrist (Kelly) and psychologist (Vosburg)
were attempting to convince George to allow him to be transferred to a less restrictive unit. 170. The Court finds that Kelly and Vosburg, both trained, knowledgeable and experienced with
psychiatric patients generally, and with George specifically, reasonably felt physically threatened by George. Kelly described the situation as follows:
They had to restrain him in the hallway and because of the threats he was yelling at Dr. Vosburg in particular, we - - we - - I talked to one of the CGTS to escort Dr. Vosburg off the unit for his own protection. And at that point, I didn’t feel it was safe to leave Mr. George on our unit because I wasn’t just concerned about Dr. Vosburg, I was concerned about my other civil patients on the unit that could be endangered by his, you know, behavior. (Kelly Test., Doc. 149 at 80:2-11.) 171. George’s probation officer was called and, although it was that officer’s decision to take him to jail, Dr. Kelly stated that he could be moved into the Forensic Division if he had had a bed but he told the officer “I doubted [] if they did.” (Kelly Test., Doc. 149 at 80:23-24.) 172. It appears that the probation officers who made this arrest were agents Bobby Castello and “Hooge,” not Defendants Tubbs or Brady. (Pl.’s Trial Ex. 19 at TG000204; Brady Test., Doc. 149 at 18:22-19:7.) Plaintiff has not challenged the conduct of Castello and Hooge. 173. The Court finds that there was reasonable and probable cause to believe that an emergency existed such that awaiting a court order to arrest George would have created an undue risk to Kelly, Vosburg and other ELMHS staff and patients and to George himself.
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174. Under the circumstances, transfer of George to a private hospital was unnecessary, impractical and unwise.
175. However, for reasons unclear in the record, no one notified the court about George’s arrest and incarceration or filed a written report or sought a hearing before the court to assess George’s status until August 19, 2014. (Pl.’s Trial Ex. 19 at TG000203.)
176. It wasn’t until August 22, 2014, that a hearing was held and on August 25, 2014, that George was finally released back to ELMHS, 55 days after his arrest. (Id.) While Kelly testified he “doubted” there were any beds in the Forensic Unit on the date George was arrested (Kelly Test., Doc. 149 at 80:23-24), the record is unclear when a bed became available. D. POLICY, PROCEDURE OR PRACTICE, VEL NON
177. Plaintiff correctly maintains (Pl.’s Request for Findings of Fact and Rulings of Law, Doc. 151 at 11, ¶ 43) that the decision to arrest and incarcerate NGRI acquittees is generally made jointly by employees of Defendants LDPSC and LDH. (Tubbs Test., Doc. 148 at 83:22– 84:20; Brady Test., Doc. 148 at 93:20–94:8.)
178. But Plaintiff goes further, insisting that Defendants had a “practice and policy . . . to arrest and incarcerate individuals on conditional discharge who have violated a term of their conditional release.” (Pl.’s Request for Findings of Fact and Rulings of Law, Doc. 151 at 10, ¶ 40) (citing Tubbs Test., Doc. 148 at 84:11 – 84:20.)
179. In support of its argument that such arrests are part of a policy, procedure and practice, Plaintiff points the Court (Pl.’s Request for Findings of Fact and Rulings of Law, Doc. 151 at 10, ¶ 40) to the testimony of Defendant Tubbs, where he states that “over the years, [he] moved to revoke somewhere around 12 to 18 of the Not Guilty By Reason of Insanity folks
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that [he] supervise[s]” and that, of those, most of them were taken to the New Orleans Parish Prison. (Tubbs Test., Doc. 148 at 84:21 – 85:3 (emphasis added).) 180. First, the Court notes that, in these other instances, unlike the two incidents complained of, there was a motion to revoke the probation of the acquittee and, indeed, the conditional discharges had been revoked. (Tubbs Test., Doc. 148 at 85:20-25.) 181. In addition, Plaintiff offered no proof as to the specifics of the other arrests and incarcerations, including whether the acquittees had committed a crime and, if not, the seriousness of the conduct that provoked the arrest and whether it involved physically aggressive and assaultive behavior or a danger to the acquittee or others. In these important respects, Plaintiff has failed to prove any policy, practice or procedure.11 182. Plaintiff did establish that George’s July 29, 2013, arrest was “in accordance with [LDPSC] departmental policy.” (Tubbs Test., Doc. 148 at 84:17-20.) But the parameters of that policy were not established, and the Court is left to conclude that the policy involved the arrest and incarceration not, as Plaintiff contends, of any NGRI acquittee solely because he has violated any condition of release. 183. Rather, if the policy, practice, and procedure mirrors the circumstances of George’s arrest and initial incarceration, and the Court so finds, then it allowed for the arrest and incarceration of an NGRI acquittee who has violated conditions of release prohibiting him from engaging in physically assaultive and aggressive behavior and presenting a danger to himself and others.
11 While not relevant to the Court’s decision, the Court also notes that there was no evidence as to how long the acquittees, in these other arrests and incarcerations remained incarcerated before a court hearing was held or how long these individuals remained incarcerated before being released to ELMHS or other psychiatric facility. There was no policy, practice or procedure demonstrated in this regard either.
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184. The Court also notes that the arrest and incarceration of July 1, 2014, is, in some respects, different than the July 29, 2013, arrest. The former involved aggressive behavior and an arrest at a group home. The latter occurred at ELMHS.
185. As is discussed infra, the Court is troubled by the evidence indicating that, in one instance, George was jailed for 25 days until his lawyer got him released pursuant to a habeas corpus petition and, in the other, 52 days before a hearing and a total of 55 days before he was released back to ELMHS. But Plaintiff has made clear that “issues of length of incarceration before release [and] length of incarceration without or before a hearing” are not before the Court. (Doc. 163; see also Doc. 42 at 2; 6, ¶¶ 14–17; 9, ¶ 30; and 23–24, ¶¶ 87–94.) But even if the length of George’s stay was an issue before the Court, these two instances do not prove a policy, procedure, or practice.
186. The Court is similarly troubled by the medical care George received at EBRPP which was incontestably inferior to that he would have received at ELMHS and appears to have done serious harm to George’s psychiatric condition. However, for similar reasons, this is not before the Court and, in any event, was not proven to be part of a policy, practice, or procedure of the Defendants.
E. DISCRETE SUBSTANTIVE DUE PROCESS VIOLATIONS TO GEORGE, VEL NON 187. In addition to Plaintiff’s complaints about Defendants’ policies, procedures, and practices, Plaintiff claims “Defendants’ actions . . . which caused Plaintiff to be confined in a correctional facility for the sole reason that he is alleged to have violated a condition of his release, violate his rights under the Due Process Clause to the United States Constitution.” (Doc. 42 at 19, ¶ 93.)
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188. This substantive due process claim also challenges his arrest and incarceration for the “sole reason that he has violated a condition of his release,” (id.) without regard to the length or circumstances of his extended incarceration or the quality of the medical care received there. (Doc. 163.)
189. In this regard, the Court finds that, on both occasions, George was arrested and removed from the group home because his aggressive behavior violated the terms of his conditions of release in that he was “physically assaultive and aggressive” and posed a danger to others. George’s first incarceration at EBRPP was because Brady could not find a bed for him at ELMHS. His second, by non-Defendant agents, was presumably for a similar reason, i.e., there were no beds in the Forensic Unit where George otherwise would have been placed.
190. As with the Court’s previous finding regarding Plaintiff’s charge of an unconditional policy, practice or procedure, the Court finds that George’s arrest was not for his violation of “any” condition of his release but, importantly, because his behavior presented a danger to others.
191. The Court finds that Tubbs, Brady and Vosburg had reasonable and probable cause to believe that, for this reason, George had violated and was likely to continue to violate those specific conditions of his release. CONCLUSIONS OF LAW A. JURISDICTION AND VENUE
192. George is properly represented in this matter by his niece and guardian ad litem, Letetica Walker, pursuant to Federal Rules of Civil Procedure 17(b)(1) and 17(c)(2) and the laws of Louisiana governing competency. (Memo. in Support of Mot. to Appoint Guardian ad Litem, Doc. 58-1, in globo; Order Granting Motion, Doc. 63, in globo.)
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193. Both are residents of Louisiana. Plaintiff is suing Defendants for claims arising under the Fourteenth Amendment to the United States Constitution; 42 U.S.C. § 1983; Section 504, 29 U.S.C. § 794(a); and Title II of the ADA, 42 U.S.C. § 12132. Defendants are state agencies and their officers. Thus, this Court’s subject matter jurisdiction is proper under 28 U.S.C. §§ 1331 and 1343.
194. George is seeking declaratory relief pursuant to 28 U.S.C. § 2202 and prospective injunctive relief pursuant to Rule 65 of the Federal Rules of Civil Procedure.
195. Venue in the Middle District of Louisiana is proper under 28 U.S.C. § 1391(b)(1) and (2). 196. George’s claims for declaratory and injunctive relief are justiciable under Article III of the
Constitution since they allege facts which raise the issue of whether the alleged violations of George’s due process rights are “capable of repetition, yet evading review.” Catholic Leadership Coal. Of Texas v. Reisman, 764 F.3d 409, 422 (5th Cir. 2014); Moore v. Hosemann, 591 F.3d 741, 744 (5th Cir. 2009); Cooper v. Kliebert, 2014 WL 7334911 at *4 (M.D. La. Dec. 19, 2014).
B. PARTIES 197. Plaintiff’s constitutional claims for prospective relief are against state agencies and
individuals sued in their official capacities only. (Docs. 129 and 138; Tr. Transcript, Doc. 148 at 26:19-27:17.) These claims are therefore not barred by the state’s sovereign immunity. Ex Parte Young, 209 U.S. 123 (1908); Cox v. City of Dallas, 256 F.3d 281, 307– 09 (5th Cir. 2001); Cooper, 2014 WL 7334911 at *2.
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C. ISSUES BEFORE THE COURT 198. As the Court has stated twice previously, following Plaintiff’s dismissal of his Section 1983
damages claims and the Court’s ruling on Plaintiff’s facial constitutional challenge to La. Code Crim. Proc. arts. 658 and 899 (Doc. 124 at 3, 22-26), the constitutional issues in this action are narrowly limited to whether George’s arrest and subsequent incarceration for violations of his release, in the absence of a criminal arrest, violated his constitutional right to due process.
D. STATUTORY RIGHTS OF THOSE FOUND NOT GUILTY BY REASON OF INSANITY
199. Louisiana Revised Statute 14:14 states that an individual charged with a criminal offense is exempt from criminal responsibility for his behavior, and is thus not guilty by reason of insanity, when “the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question.”
200. Louisiana Revised Statute 28:2(20) defines a mentally ill person as “any person with a psychiatric disorder which has substantial adverse effects on his ability to function and who requires care and treatment.”
201. The statutory structure under which George was twice arrested and detained is found in La. Code Crim. Proc. arts. 654-658 and 899. A summary of those articles pertinent to the issues before the Court follows.
202. La. Code Crim. Proc. art. 654 provides that if the defendant is found NGRI in a non-capital case, the court shall remand him to the parish jail or to a private mental institution approved by the court and “promptly hold a contradictory hearing” to determine whether he is a 47

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danger to himself or others and therefore whether he can be released, with or without conditions, or must remain committed in the mental institution. 203. Specifically, art. 654 provides, in pertinent part: “If the court determines that the defendant can be discharged or released on probation without danger to others or to himself, the court shall either order his discharge, or order his release on probation subject to specified conditions for a fixed or an indeterminate period.” 204. Louisiana Revised Statute 28:2(6) defines “dangerous to others” as “the condition of a person whose behavior or significant threats support a reasonable expectation that there is a substantial risk that he will inflict physical harm upon another person in the near future.” Louisiana Revised Statute 28:2(7) defines “dangerous to self” as “the condition of a person whose behavior, significant threats or inaction supports a reasonable expectation that there is a substantial risk that he will inflict physical or severe emotional harm upon his own person.” 205. In ordering a conditional release from a mental health facility, the court “shall subject a conditionally released insanity acquittee to such orders and conditions it deems will best meet the acquittee’s need for treatment, supervision, and monitoring and will best serve the interests of justice and society.” La. Code Crim. Proc. art. 657.1(B). 206. The acquittee on probation (also known as the “probationer”) “shall be under the supervision of the division of probation and parole.” La. Code Crim. Proc. art 658(B)(1). 207. In this case, George was released on specified conditions, which were in place at the time of both arrests and detentions in the EBRPP. Especially important in this case is the following condition:
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Any physically assaultive/aggressive behaviors shall be reported to the District Forensic Coordinator or State Probation Officer. Violations of this condition may result in immediate return to custody or intensified treatment if recommended by the District Forensic Coordinator and State Probation Officer. (Pl.’s Trial Ex. 1 at TG000002.) 208. In addition to whatever specific conditions are placed by the court, “[i]t shall be a condition of every such probation that the person released shall be recommitted if he becomes dangerous to others or to himself for reasons of mental illness . . . ” La. Code Crim. Proc. art. 658(A) (emphasis added). 209. Also of importance in this case is the following provision: “When the probationer violates or is about to violate the conditions of his probation, he may be arrested and detained in conformity with the applicable provisions of Article 899 of this Code.” La. Code Crim. Proc. art. 658(B)(1).12 210. La. Code Crim. Proc. art. 899(B) states, in pertinent part: “If a probation officer has reasonable cause to believe that a [probationer] has violated or is about to violate a condition of his probation or that an emergency exists so that awaiting an order of the court would create an undue risk to the public or the probationer, the probation officer may arrest the [probationer] without a warrant . . . . The probation officer shall immediately notify the proper court of the arrest and shall submit a written report showing what manner the [probationer] violated, or was about to violate, a condition of his probation.”
12 This Court has previously held in this matter that neither La. Code Crim. Proc. art. 658(B) nor La. Code Crim. Proc. art. 899 are unconstitutional on their face. (See Doc. 124 at 22-24.)
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211. La. Code Crim. Proc. art. 899(E) provides, in pertinent part: “Within ten days following the
arrest of [a probationer] pursuant to the provisions of this Article, the Court shall determine
if there is probable cause to detain him pending a final violation hearing . . . ”
212. Presumably designed to work in conjunction with art. 658(B)(1), La. Code Crim. Proc. art.
658(B)(5) provides:
The division of probation and parole or the Louisiana Department of Health through the conditional release program coordinator or a designee shall immediately notify the court of any substantive violations or imminent violations of the conditions of the person’s probated release and shall present recommendations to the court regarding whether the court should revoke the probation and recommit the probationer to a state mental institution or other recommendations as may be appropriate.
213. Upon receiving the report recommending revocation or other disposition, the court may, on
its own motion or that of the District Attorney or probation officer, “cause the person to be
arrested, if he is not already in custody, and shall immediately hold a hearing to consider
the violations listed . . . ” La. Code Crim. Proc. art. 658(B)(6). 214. If the court determines that there has been a violation of a term of the conditional release or
that the acquittee was about to violate the conditions of release, it may do any of the
following:
(1) Reprimand and warn the probationer;
(2) Order that supervision be intensified;
(3) Modify or add additional conditions to the probation;
(4) Revoke the probation and recommit the probationer to a state mental institution, subject to consideration for discharge or release on probation only after one year has elapsed from the date of revocation and in accordance with the procedure prescribed in Articles 655 through 657 for a first application and hearing.
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La. Code Crim. Proc. art. 658(C). 215. Although art. 658(C) does not list as one of its options the arrest and incarceration of the
acquittee, art. 658(B)(1) specifically authorizes the arrest and detention of the probationer/acquittee in conformity with art. 899 “[w]hen the probationer violates or is about to violate the conditions of his probation.” Art. 899, as mentioned above, authorizes the arrest of a probationer without a warrant if the probation officer “has reasonable cause to believe that a [probationer] has violated or is about to violate a condition of his probation.” 216. Louisiana’s statutory scheme also envisions a situation where (without mention of a violation or imminent violation of conditions of release), the probationer/acquittee “is in need of acute, i.e. short term, hospitalization and is not charged with a new criminal offense . . .” La. Code Crim. Proc. art. 658(B)(4). In such a circumstance, he “may be voluntarily admitted pursuant to R.S. 28:52 or admitted by emergency certificate pursuant to R.S. 28:53 to the Feleciana Forensic Facility or to another suitable treatment facility, with subsequent notice to the court.” 217. While Plaintiff argues that this provision could have been utilized where the probationer/acquittee violated or was about to violate his terms of supervised released (P Brief, Doc. 151, ¶ 128), the provision does not explicitly state this.
E. SUBSTANTIVE DUE PROCESS RIGHTS OF NGRI ACQUITTEES AND STANDARD FOR APPLYING THEM
218. In addition to its procedural protections, the Due Process Clause of the Fourteenth Amendment “contains a substantive component that bars certain arbitrary, wrongful government actions” that deprive a person of life, liberty, or property “‘regardless of the 51

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fairness of the procedures used to implement them.’” Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990)). 219. Among the liberty interests protected by this substantive portion of the Due Process Clause are certain fundamental rights such as the freedom from confinement or bodily restraint, which “has always been at the core of the liberty protected by the Due Process Clause from arbitrary action.” Id. 220. A finding of NGRI means that the defense has proven by a preponderance of the evidence that the defendant was insane at the time the acts were committed and thus cannot be punished for such acts. Jones v. United States, 463 U.S. 354, 369 (1983). 221. On the other hand, this does not mean that the NGRI acquittee is free to resume his life unfettered by any restrictions. Society has an interest in insuring that an insanity acquittee poses no danger to himself or the public. Id. at 368. 222. “[T]he governing legal principle derived from Foucha and Jones is that a state may continue to confine an insanity acquittee only as long as the acquittee is both mentally ill and dangerous.” Poree v. Collins, 866 F.3d 235, 248 (5th Cir. 2017) (citing Jones, 463 U.S. at 368-70; Foucha, 504 U.S. at 77-78). 223. Stated another way, “[t]ogether, Jones and Foucha establish that the state must prove two conditions to justify continued confinement of an NGRI acquittee: mental illness and dangerousness.” Id. 224. Regardless of the purpose of confinement, however, the Supreme Court has repeatedly recognized that “commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.” Jones, 463 U.S. at 361. See also Addington v. Texas,
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441 U.S. 418 (1979); Jackson v. Indiana, 406 U.S. 715 (1972); Humphrey v. Cady, 405 U.S. 504 (1972); Specht v. Patterson, 386 U.S. 605 (1967). 225. In the case of an NGRI acquittee, constitutionally permissible purposes for confinement include treating the mental illness and protecting the acquittee and society from his potential dangerousness. Jones, 463 U.S. at 368 (emphasis added). 226. While “the Supreme Court has not provided any yardstick for determining what probability of danger is sufficient [to satisfy the substantive due process standard for confinement] and that which falls short[,]” Poree, 866 F.3d at 249, the Fifth Circuit has approved of a Louisiana state court’s continued confinement of an NGRI acquittee based on his “potential for both danger to himself and others,” coupled with a finding of his mental illness, holding such confinement was not contrary to clearly established federal law. Id. at 249-251.13 227. In delineating the boundaries of the Fourteenth Amendment’s due process protections for NGRI acquittees, courts have often looked to the protections given to individuals who have been civilly committed or to pretrial detainees. See e.g., Poree, 866 F.3d at 244-245 & n.31. (also observing that Louisiana’s statutory scheme “likens conditional release [of an NGRI acquittee] to probation.”). And there is reason for this favorable comparison since an NGRI acquittee, like a pretrial detainee or one civilly committed, has not been found legally responsible for the commission of a crime. 228. But there are important differences too. As stated by the District Court’s decision in Poree:
The Supreme Court has also recognized that different considerations underlie the commitment of insanity acquittees, holding that “insanity
13 While not determinative in this case, the Fifth Circuit in Poree felt “compelled to note” that Louisiana’s statutory requirement that confinement is justified only when there is a “reasonable expectation that there is a substantial risk” that the acquittee will cause harm, La. Rev. Stat. Ann. §§ 28:2(3) and (4), is a more demanding standard than that applied by the state court and approved of by the Fifth Circuit. 866 F.3d at 249-50.
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acquittees constitute a special class that should be treated differently from other candidates for commitment.” Jones, 463 U.S. [at] 370. For example, “the fact that a person has been found, beyond a reasonable doubt, to have committed a criminal act certainly indicates dangerousness.” Id. at 364 (citing Lynch v. Overholser, 369 U.S. 705, 714 (1962) (that the accused was found to have committed a criminal act is “strong evidence that his continued liberty could imperil ‘the preservation of the peace’ ”). The Court has also indicated that concrete evidence that an individual committed a crime is “at least as persuasive as any predictions about dangerousness that might be made in a civil-commitment proceeding.” Jones, 463 U.S. at 364–65.
Additionally, the U.S. Fifth Circuit has indicated that, although insanity acquittees are entitled to substantially the same procedural protections afforded civil committees, insanity acquittees can be viewed differently when being considered for release since the “prior antisocial conduct of an insanity acquittee justifies treating such a person differently ...” Powell v. Florida, 579 F.2d 324, 333 (5th Cir. 1978). See also, Warren v. Harvey, 632 F.2d 925, 931 (2nd Cir. 1980) (that insanity acquittees have been found, beyond a reasonable doubt, to have committed a criminal act indicates they have “proved themselves a danger to society at one time”).
Poree v. Kollins, 2014 WL 346081 at *8 (E.D. La. Jan. 29, 2014), aff’d. 866 F.3d 235 (5th
Cir. 2017).
229. On the issue of the legal standard by which to measure the alleged due process breach in
this case, Plaintiff argues that “[t]he closest analogue to the liberty interests of NGRI
acquittees arises in the civil commitment context.” (Doc. 151, ¶ 133) (citing Youngberg v.
Romeo, 457 U.S. 307 (1982) (finding a liberty interest in adequate medical care and
treatment for the intellectually disabled); Savidge v. Fincannon, 836 F.2d 898 (5th Cir.
1988) (tracing the constitutional right to treatment); Welsch v. Likins, 373 F. Supp. 487,
491–500 (D. Minn. 1974), supplemented, 68 F.R.D. 589 (D. Minn. 1975), aff’d, 525 F.2d
987 (8th Cir. 1975)).
230. As such, argues Plaintiff, the standard of review for violations of the substantive due process
rights of NGRI acquittees is distinct from the “deliberate indifference” standard that the
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Supreme Court has applied to certain government actions. (P Brief, Doc. 151, ¶ 145.) Rather, the proper test involves balancing the individual’s liberty interests against the legitimate interests of the state. (Doc. 151, ¶¶ 147, 149) (citing Youngberg, 457 U.S. at 324; Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004)). 231. Plaintiff contends that, to properly apply the Youngberg balancing test, this Court should use a “least-restrictive-means analysis” as was used by the Eleventh Circuit in Lynch v. Baxley, 744 F.2d 1452 (11th Cir. 1984), which ruled that, while state and local governments had a compelling interest in safety of the individual and society, they must confine those awaiting civil commitments in the least restrictive setting, i.e., in a public or private hospital instead of county jails. (Doc. 151, ¶¶ 132, 148) (citing Lynch, 744 F.2d at 1457-61). 232. Plaintiff points to the Ninth Circuit’s decision in Jones v. Blanas for the proposition that “[w]ith respect to an individual confined awaiting adjudication under civil process, a presumption of punitive conditions arises where the individual is detained under conditions identical to, similar to, or more restrictive than those under which pretrial criminal detainees are held, or where the individual is detained under conditions more restrictive than those he or she would face upon commitment.” (P Brief, Doc. 151, ¶ 150) (citing Jones, 393 F.3d at 934). 233. Plaintiff also urges the Court to look to similar due process considerations which arise in the criminal context during incompetency proceedings, citing Or. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1121–22 (9th Cir. 2003) (“[h]olding incapacitated criminal defendants in jail for weeks or months violates their due process rights because the nature and duration of their incarceration bears no reasonable relation to the evaluative and restorative purposes
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for which courts commit those individuals”); Trueblood v. Wash. State Dep’t of Social and Health Svcs., 101 F. Supp. 3d 1010 (W.D. Wash. 2015), rev’d on other grounds, 2016 WL 2610233 (9th Cir. 2016); and Terry ex rel. Terry v. Hill, 232 F. Supp. 2d 934 (E.D. Ark. 2002). In these cases, argues Plaintiff, pretrial detainees awaiting competency restoration services have a liberty interest in proper mental health treatment to restore their competency. (P Brief, Doc. 151, ¶ 135.) 234. In these cases, courts have held state actors to a higher standard than a mere general “deliberate indifference” standard, instead conducting a balancing test between an incompetent detainee’s liberty interests in freedom and restorative treatment versus the interests of the state. See Jackson, 406 U.S. at 738 (balancing nature and duration of confinement with care and treatment); Mink, 322 F.3d at 1121 n.11 (declining to rely solely on a deliberate indifference standard and instead balancing incompetent detainees’ liberty interests in freedom and restorative treatment against state interests because “substantive due process may demand more than a lack of deliberate indifference”); Terry, 232 F. Supp. 2d at 943–44 (balancing state interests against incompetent pretrial detainees’ interests in treatment and freedom and noting, in the alternative, that the failure to provide restorative treatment was deliberate indifference by the state agency). 235. But even if this Court should use the deliberate indifference standard, Plaintiff urges the Court in the alternative to apply an objective standard in doing so, citing Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015). And while Kingsley did not hold this objective standard applicable to all substantive due process claims, Plaintiff asks this Court alternatively to adopt the Kingsley standard in this case, citing the Ninth Circuit’s decision
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in Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc), which expanded the Kingsley standard to include failure-to-provide-medical-care claims and suggested that the standard should also be applied to other substantive due process confinement claims. (Doc. 151, ¶ 158.) 236. Defendants have not provided the Court with their position regarding the applicable standard by which to measure a due process violation, arguing only that there is limited due process protection for a probationer in the revocation process. (D Brief, Doc. 152, ¶ 93) (citing Morrissey v. Brewer, 408 U.S. 471 (1972); Gagnon v. Scarpelli, 411 U.S. 778 (1973); Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357 (1998)). 237. In this regard, Defendants point the Court to the following excerpt from Griffin v. Wisconsin, 483 U.S. 868, 874 (1987): “[I]t is always true of probationers (as we have said it to be true of parolees) that they do not enjoy the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions.” (internal quotation marks omitted). (Doc. 152, ¶ 95.) 238. Rather, Defendants focus their argument on George’s arrest, contending it was statutorily permitted and constitutional. (Doc. 152, ¶¶ 96-100.) Defendants do not address the broader issue of the legal basis justifying their failure to place (and replace) George in ELMHS or his prolonged stays in EBRPP without a hearing.14 239. In deciding the proper standard to apply, the Court starts with the foundational proposition that the Fourteenth Amendment’s substantive due process guarantee protects citizens from
14 Defendants suggest they haven’t done so because Plaintiff’s claim tried to the Court was limited to the sole issue of whether declaratory and injunctive is justified based on the alleged unconstitutional policies, practices and procedures of Defendants in arresting and incarcerating NGRI acquittees for violations of conditions of release alone, when no crime has been committed. (Doc. 161 at 1-2, 9-10.) This contention was repeated in oral argument.
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arbitrary, abusive, or oppressive use of governmental power. Daniels v. Williams, 474 U.S. 327, 332 (1986). 240. In assessing whether a confinement violates the specific substantive due process rights of NGRI acquittees, the Supreme Court has held that “[d]ue process requires that the nature of the commitment bear some reasonable relation to the purpose for which the individual is committed.” Foucha, 504 U.S. at 79 (citing Jones, 463 U.S. at 715; Jackson, 406 U.S. at 738). 241. This test is essentially identical to the substantive due process standard previously set by the Supreme Court in Youngberg for mentally retarded persons involuntarily committed: “In determining whether a substantive right protected by the Due Process Clause has been violated, it is necessary to balance ‘the liberty of the individual’ and ‘the demands of an organized society.’” Youngberg, 457 U.S. at 320 (quoting Poe v. Ullman, 367 U.S 497, 542 (1961) (Harlan, J. dissenting)). Indeed, the Fifth Circuit has likened the substantive due process rights of one mentally ill who has been civilly committed to those of an NGRI acquittee. See Poree, 866 F.3d at 244-245. 242. As discussed in Youngberg and numerous subsequent cases, a court generally evaluates substantive due process challenges by pretrial detainees as follows:
[I]f a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to ‘punishment.’ Conversely, if a restriction or condition is not reasonably related to a legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.
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See, e.g., Estate of Henson v. Wichita Cty., 795 F.3d 456, 467 (5th Cir. 2015) (citing Bell v. Wolfish, 441 U.S. 520, 539 (1979)). 243. The Court therefore believes Youngberg and its progeny are particularly instructive in evaluating the substantive due process issues in this case. 244. Youngberg held that “adequate food, shelter, clothing and medical care” are “essentials of the care that the State must provide.” 457 U.S. at 324, see also id. at 315. 245. However, as later cases observe, “this is by no means the same as requiring the State to provide the best care possible or the optimum location to improve the client’s physical, mental and emotional conditions.” Lelsz v. Kavanaugh, 807 F.2d 1243, 1251 (5th Cir. 1987), rehg. denied, 815 F.2d 1034, cert. dismissed, 483 U.S. 1057 (1987). 246. But Youngberg tells us that “[mentally ill] [p]ersons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” 457 U.S. at 322. 247. In Youngberg, the Court rejected the state’s argument that the Eighth Amendment subjective deliberate indifference or criminal recklessness standard should govern the due process rights of those who were civilly, as opposed to criminally, committed. Id. at 32122, 325. 248. However, Youngberg also observed that the balancing of liberty and state interests required should not be left to the “unguided discretion” of a judge or jury. Id. at 321. 249. The Youngberg court decided that an official violates the substantive due process rights of a mentally ill civilly committed individual when his decision injures the individual’s liberty interests and constitutes a “substantial departure from accepted professional judgment.” Id.
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at 323-24. Indeed, the Court ruled that “[l]iability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” Id. at 323. Therefore, in weighing a committed individual’s liberty interests against unreasonable restraints, a court must show deference to the judgment exercised by a qualified professional, which is entitled to a presumption of correctness. Id. at 322, 324. 250. Youngberg also noted that, “[i]n an action for damages against a professional in his individual capacity, . . . the professional will not be liable if he was unable to satisfy his normal professional standards because of budgetary constraints; in such a situation, good faith immunity would bar liability.” Id. at 323. 251. This principle does not necessarily bar the grant of prospective injunctive or declaratory relief to remedy unconstitutional conditions or policies. See Thomas S. By Brooks v. Morrow, 601 F. Supp. 1055, 1059-60 (W.D.N.C. 1984) (“Lack of funding or of established alternatives is not a factor which may be considered in determining the scope of [constitutional rights analyzed in Youngberg]. Of course, that factor is critical in determining whether damages may be recovered by one who was denied his right to appropriate treatment . . . . Nor are budgetary constraints restrictive of a court’s equitable authority and power in fashioning prospective relief after determining that this constitutional right has been violated.” (emphasis in original)). See also Udey v. Kastner, 805 F.2d 1218, 1220 (5th Cir. 1986) (“[I]nadequate resources can never be an adequate justification for depriving any person of his constitutional rights.” (quoting Smith v.
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Sullivan, 553 F.2d 373, 378 (5th Cir. 1977)); Scott v. Plante, 691 F.2d 632, 637 (3rd Cir. 1982) (“Obviously the problem of hindsight interference with decisions made by hardpressed professional staff members of state mental institutions is a more serious one than that of assisting them in directing prospective injunctive relief against appropriate state officials.”); Birrell v. Brown, 867 F.2d 956, 959 (6th Cir. 1989) (“In Youngberg, however, the Court indicated that budgetary constraints could cloak an individual with good-faith immunity. . . . Such immunity based on budgetary constraints does not, of course, excuse the constitutional violations themselves, or prevent court orders that require the government to correct deficiencies.”). 252. Youngberg defined a “professional” as someone “competent, whether by education, training or experience to make the particular decision at issue.” 457 U.S. at 323 n.30. It distinguished “employees without formal training but who are subject to the supervision of qualified persons,” and who would make “day-to-day decisions regarding care.” Id.; see also Kyle K. v. Chapman, 208 F.3d 940, 943 (11th Cir. 2000) (defendant “direct care” workers were nonprofessionals whose primary responsibility was carrying out the directions of officials who determine patient care; conversely, in Youngberg defendant directors exercised “varying degrees of supervisory authority over the treatment provided to the patient”); cf. Patten v. Nichols, 274 F.3d 829, 840 (4th Cir. 2001) (“Youngberg clearly establishes that a hospital’s obligation to protect the safety of its patients is measured by the professional judgment standard, and there is no reason to think that the hospital generally will attend to its obligation to provide medical care under circumstances substantially
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different from those under which the hospital attends to its obligation to protect the patient’s safety.”). 253. Sixteen years after Youngberg, the Supreme Court decided County of Sacramento v. Lewis, 523 U.S. 833 (1998). Unlike Youngberg, Lewis involved the alleged reckless conduct of a deputy sheriff who instigated a high speed chase that led to a death. Lewis, 523 U.S. at 83637. The decedent’s estate sued the county, sheriff’s department, and deputy, alleging deprivation of the decedent’s substantive due process right to life. Id. at 837. 254. In determining what standard to apply, the Court emphasized that a cognizable substantive due process claim must allege official conduct that “shocks the conscience.” Id. at 846. The Court also observed that negligent conduct would not give rise to a due process claim, while conduct “intended to injure” and unjustified by any government interest would. Id. at 848-49. 255. The Court observed that, for conduct falling between those extremes, “deliberate indifference” would satisfy the fault requirement for due process claims, whether brought by convicted prisoners or someone jailed and awaiting trial. Id. at 849-50. 256. The Court noted, however, that “[d]eliberate indifference that shocks in one environment may not be so patently egregious in another,” and that the term “deliberate indifference” implies a standard “sensibly employed only when actual deliberation is practical.” Id. at 850-51. Emphasizing the need for “fast action” and the balancing of multiple conflicting duties, id. at 853, the Court held that, absent a “purpose to cause harm,” officer actions during a high-speed chase do not give rise to a due process violation. Id. at 854.
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257. In reaching its holding, the Court distinguished “the custodial situation of a prison,” where deliberation was not only “practical” and “feasible” but also “obligatory under a regime that incapacitates a prisoner to exercise ordinary responsibility for his own welfare.” Id. at 851. The Court observed that the situation in Youngberg could be categorized on “much the same terms,” as “[t]he combination of a patient’s involuntary commitment and his total dependence on his custodians obliges the government to take thought and make reasonable provision for the patient’s welfare.” Id. at 852 n.12.
258. More recently, the Fifth Circuit has stated that a pretrial detainee’s Section 1983 action based on “episodic acts or omissions” in violation of Fourteenth Amendment rights must show subjective deliberate indifference, i.e., that an official “knew of and disregarded a substantial risk of serious harm.” Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415, 419-20 (5th Cir. 2017). Official conduct must be “wanton” or “reckless” to meet this standard; “inept, erroneous, ineffective, or negligent” conduct does not suffice. Id. at 420.
259. Several district courts have also applied Youngberg, Foucha, Jones, and related cases in circumstances similar to those presented here. In Ward v. Hellerstedt, 2017 WL 1611761 (W.D. Tex., April 28, 2017), the Western District of Texas considered claims that NGRI acquittees were “languish[ing] in a jail setting for months on end with no treatment or evaluation,” violating their interests in “freedom from incarceration” and “the receipt of restorative treatment.” Id. at *2. The court observed that, with respect to NGRI acquittees, Jones and Foucha state that the purpose of an insanity acquittee’s commitment is dual: “treatment and protection of society.” Id. at *4. The court also noted that “continued detention based on dangerousness and mental illness is only constitutional when there has
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been a sufficiently prompt full adversarial hearing where the State has proven by clear and convincing evidence that the individual is demonstrably dangerous to the community.” Id. 260. In Luna v. Van Zandt, 554 F. Supp. 68 (S.D. Tex. 1982), the Southern District of Texas considered the constitutionality of a protective custody statute which, according to the plaintiff, permitted “involuntary detention without a probable cause hearing” and without “provid[ing] notice of the grounds and authority authorizing protective custody.” Id. at 71. 261. The court ruled that individuals may be detained absent prior notice and opportunity for a hearing in “extraordinary situations;” the statute at issue was constitutional in this respect because it permitted the detention of individuals “who allegedly pose an immediate threat of harm to self, others, or society.” Id. at 72. 262. However, the court determined that the statutory scheme requiring detainees to wait 14 days or longer for a preliminary “probable cause hearing” was unconstitutional. Id. at 72-73, 7576. 263. According to the court, “[t]he threat of immediate harm to self or others clearly justifies the initial detention. Once the proposed patient is rendered secure and is placed under custody, however, this immediate threat of harm dissipates. His continued confinement can no longer be justified on that basis.” Id. at 72-73. In other words, after the individual had been “secured,” a hearing was necessary in order to ensure that the nature of the commitment continued to bear some reasonable relationship to the purpose for which the individual remained committed. See id.
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264. In Neiberger v. Hawkins, 239 F. Supp. 2d 1140 (D. Colo. 2002), the District of Colorado attempted to reconcile Youngberg’s balancing and professional judgment standard with the general standards discussed in Lewis and its progeny. Id. at 1149-51.
265. The court observed that a person’s substantive due process rights are violated by the “arbitrary, abusive, or oppressive use of governmental power,” i.e., “egregious” conduct that “shocks the conscience.” Id. at 1149 (citing Lewis, 523 U.S. at 846).
266. According to Neiberger, when a plaintiff alleges conduct that is worse than negligent but not intentional, Lewis “directs the inquiry to the official’s opportunity for deliberation.” Id. (citing Lewis, 523 U.S. at 850-55).
267. In cases involving individuals not committed for punishment, Neiberger also rejects the general Eighth Amendment “deliberate indifference” standard in favor of the Youngberg standard. Id. at 1149. As Neiberger observes, the individuals in Youngberg merited “greater constitutional vigilance from their caretakers than . . . ordinary prisoners,” but Youngberg was also wary “of placing too onerous a burden on these officials.” Id. at 1150 (citing Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1144-45 (3d Cir. 1990)).
268. In Neiberger’s view, Youngberg’s “professional judgment” standard constituted a “middle[]ground” between a very deferential “deliberate indifference” standard and more searching “compelling” or “substantial necessity” tests. See id. (citing Shaw, 920 F.2d at 1145).
269. Youngberg and its progeny remain good law. Moreover, as discussed above, these cases account for numerous factors that are unique or particularly relevant to decisions made about the care and detention of NGRI individuals, namely (1) their placement in state
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custody and resulting inability to provide for their own wellbeing; (2) the fact that they have not been found legally responsible for criminal conduct and have a greater liberty interest than an individual convicted of a crime; (3) their typical placement with individuals who receive training and exercise informed, professional judgment about their care; and (4) officials’ general ability to make deliberate, unhurried decisions about their care. 270. The Court is therefore persuaded, at least as an initial matter, to use Youngberg’s balancing and professional judgment standards to determine whether Defendants’ conduct “shocks the conscience,” as is required to give rise to a due process claim. 271. Because there is a reasonable argument, however, that one of the aforementioned “deliberate indifference” standards applies, the court will also consider the application of these standards in the alternative. See, e.g., Terry, 232 F. Supp. 2d at 943-44 (balancing state interests against incompetent pretrial detainees’ interests in treatment and freedom and noting, in the alternative, that the failure to provide restorative treatment was deliberate indifference by the state agency).
F. APPLICATION OF LAW TO FACTS OF CASE 272. The Court will address each issue separately.
G. EXISTENCE AND CONSTITUTIONALITY OF ALLEGED POLICY, PRACTICE, AND PROCEDURE
273. Plaintiff’s central argument is that Defendants maintained a “policy, practice and procedure” of arresting and incarcerating NGRI acquittees for violating their conditions of release when no crime had been committed. (Doc. 42, ¶¶ 1, 77, 78, 80, 86, 91, 93-94.) He argues that a policy has been proven primarily by two facts: first, the two incidents in which George himself was arrested and incarcerated; and second, the testimony of Tubbs that there 66

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were some 12 to 18 other incidents in which Tubbs arrested and incarcerated NGRI acquittees. He also attempts to support his argument by maintaining that Defendants “haven’t claimed that Mr. George’s experiences were unique” (Doc. 160 at 18), and that “[t]here is no evidence before this Court that by incarcerating Mr. George for 25 and 55 days that defendants were following a practice unique to Mr. George.” (Id. at 13.) 274. In support of his argument that he has factually proved a policy, practice or procedure, Plaintiff cites a record in another case dealing with persons found incompetent to stand trial, Advocacy Center for Elderly and Disabled v. Louisiana Dep’t of Health and Hospitals, 731 F. Supp. 2d 603, 627 (E.D. La. 2010). (Doc. 160 at 13). Plaintiff also points the Court to a decision of this Court denying a motion to dismiss. See generally Cooper, 2014 WL 7334911. Yet neither of these cases provides the factual support for the argument made here. 275. While the Court certainly has concerns with the extended incarcerations of George without a hearing, it is Plaintiff’s burden to prove his allegations, including the allegation that there was a “policy, procedure and practice.” It is not the Defendants’ burden to show these two incidents were unique. 276. As noted above, the Court finds that two arrests do not establish a “policy, practice or procedure.” While the two share the common fact that George was arrested and incarcerated for violating a condition of his release (being physically assaultive and aggressive and presenting a danger to others), the two incidents are also significantly different. The first involved his conduct while on release in a group home and at his day program while the
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second occurred at ELMHS. More importantly, however, even if identical, the number of incidents is insufficient to establish a policy, procedure or practice. 277. Tubbs’ testimony that “over the years, [he] moved to revoke somewhere around 12 to 18 of the Not Guilty by Reason of Insanity folks that [he] supervised,” (Tubbs Test., Doc. 148 at 84:17-86:12), likewise does not establish the policy or procedure Plaintiff claims. First, Tubbs testified that he moved to revoke these NGRI acquittees and did not, as Plaintiff’s claimed practice would require, simply arrest and incarcerate them on his own. Rather, the testimony suggests that Tubbs invoked the authority of the court. Second, his testimony gives no information as to the circumstances surrounding the conduct that gave rise to the arrest, including whether or not the acquittees had committed a crime. 278. However, even if Plaintiff had proved a policy, procedure, or practice of arresting an NGRI acquittee for violations of conditions of release when no crime had been committed, the Court finds that this policy alone does not violate the Constitution for the reasons given below. H. ARREST AND INCARCERATION FOR VIOLATIONS OF CONDITIONS OF
RELEASE WHEN NO CRIME WAS COMMITTED 279. Plaintiff argues that, while the state may detain pretrial criminal defendants who are a
danger to others or to the community, the Supreme Court has explicitly approved of this practice only in narrow circumstances to prevent “the most serious of crimes” and only where a court makes an initial determination of probable cause for the detention followed by a “prompt” detention hearing to prove by clear and convincing evidence that no other less restrictive condition could ensure the safety of the community. (Doc. 151, ¶ 141) (citing Foucha, 504 U.S. at 81–82; United States v. Salerno, 481 U.S. 739 (1987)).
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280. Plaintiff argues that, even without a policy, practice or procedure, he has proven that his arrest and incarceration on two occasions violated his substantive due process rights.
281. Indeed, says Plaintiff, even where it is appropriate to revoke probation and return him to confinement, the law requires the detention to be in a public or private mental hospital, not a jail. (Doc. 151, ¶ 152) (citing La. Code Crim. Proc. art. 654.)
282. Plaintiff claims that Defendants chose to have George arrested and placed in East Baton Rouge Parish Prison on two separate occasions, despite the fact that less restrictive alternatives were available. Such alternatives included treating George at a private mental hospital. According to Plaintiff, a reasonable officer in the same circumstances would have appreciated the risk of placing a severely ill man in a parish prison setting not intended to provide the level of mental health treatment necessary. (Doc. 151, ¶ 162.)
283. In post-trial briefing, Plaintiff characterized his claims as whether it was constitutional to confine him in a parish prison for six weeks. (Doc. 151, ¶¶ 151, 153 (emphasis added).) However, as noted previously, Plaintiff has since acknowledged that his constitutional claims are “limited to the issue of whether the arrest and incarceration of George solely for violation of conditions of his release in the absence of a criminal arrest violated George’s substantive due process rights.” (Doc. 163 at 1.) Plaintiff’s constitutional claims do not include “issues of length of incarceration before release, length of incarceration without or before a hearing, adequacy of medical care, and other issues.” (Id.)
284. Defendants, on the other hand, argue that “when an arrest is made by state officers acting pursuant to state authority, ‘the requisite standard of probable cause for a lawful arrest is
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determined by state law, provided such law meets federal constitutional standards.’” (Doc. 152, ¶ 96) (citing United States v. Ullrich, 580 F.2d 765, 769 (5th Cir. 1978)). 285. Defendants insist that La. Code Crim. Proc. art. 658(B) specifically authorizes the arrest and detention of an NGRI acquittee in conformity with the applicable provisions of La. Code Crim. Proc. art. 899, and La. Code Crim. Proc. art. 899(B) provides that a probation officer may arrest a defendant without a warrant if the officer “has reasonable cause to believe that a defendant violated or is about to violate a condition of his probation” and therefore such an arrest does not violate the Fourth Amendment. (Doc. 152, ¶ 97.) 286. The term “reasonable cause” is also cited in La. Code Crim. Proc. art. 213, which sets forth generally the instances in which a peace officer may lawfully arrest someone without a warrant. “In interpreting the meaning of ‘reasonable cause’ in . . . Code of Criminal Procedure Art. 213, reasonable cause has been equated with probable cause.” (Doc. 152, ¶ 98) (citing Lawrence v. Henderson, 344 F. Supp. 1287, 1292 n.15 (E.D. La. 1972) aff’d, 478 F.2d 705 (5th Cir. 1973)). 287. Defendants maintain that reasonable cause under Louisiana law has been “judicially recognized as equivalent to probable cause.” (Doc. 152, ¶ 99) (citing, inter alia, Haith v. City of Shreveport, 2005 WL 2140583, at *4 (W.D. La. Sept. 1, 2005); Sebald v. City of New Orleans, 2005 WL 1400428, at *4 (E.D. La. June 6, 2005)). 288. Because Defendants had probable cause to arrest Plaintiff for violating the conditions of his conditional release order for exhibiting violent and threatening behavior at the time of both arrests, Defendants contend that Plaintiff’s arrest and incarceration were both consistent with Louisiana and constitutional law. (D Brief, Doc. 152, ¶ 100.)
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289. First, the Court previously held that the two key provisions of Louisiana’s challenged statutory scheme, La. Code Crim. Proc. arts. 658 and 899, are facially constitutional. (Doc. 124 at 3, 22-26.) As the Court observed, “court after court has refused to declare as unconstitutional statutes that authorize the arrest of a person found NGRI upon his or her violations of the conditions of his or her release, assuming any such recommission is ultimately reviewable by a court of law.” (Id. at 23-24) (citing Archuleta v. Hedrick, 365 F.3d 644, 648 (8th Cir. 2004); Phelps v. United States, 831 F.2d 897, 898 (9th Cir. 1987); Cochran v. Dysart, 965 F.2d 649, 649 (8th Cir. 1992); Grass v. Reitz, 643 F.3d 579 (8th Cir. 2011)); see also Ward, 2017 WL 1611761 at *4 (“A determination that an insanity acquittee is dangerous, without more, would therefore be insufficient to make constitutional an insanity acquittee’s indefinite incarceration in a county jail. Moreover, continued detention based on dangerousness and mental illness is only constitutional when there has been a sufficiently prompt full adversarial hearing . . .” (emphasis added, spelling altered)); cf. Lynch v. Baxley, 386 F. Supp. 378, 387 (M.D. Ala. 1974) (three-judge panel) (Alabama statutes providing for emergency detention in county jail or state mental hospitals were facially unconstitutional because they authorized “ex parte and summary deprivation of liberty without any of the rudimentary protections long recognized as required by the due process of law;” emergency detention absent a hearing was constitutional “only for the length of time required to arrange a probable cause hearing,” and in no event for more than seven days).
290. While Plaintiff’s current constitutional challenge is not styled as such, it is in a very real way a continuing facial challenge since it claims principally that any arrest and incarceration
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of an NGRI acquittee for violating his conditions of release when the acquittee has not been accused of committing a crime is unconstitutional, regardless of the circumstances. (Pl.’s Second Amd. Compl., Doc. 42 at 18-19; Doc. 160 at 1-4; Doc. 163 at 1). Counsel for Plaintiff conceded as much at oral argument. 291. As previously discussed, however, even though George was not legally responsible for the acts he committed, the Supreme Court has emphasized that an NGRI acquittee is not free to resume his life unfettered by any restrictions. Society has an interest in insuring that an insanity acquittee poses no danger to himself or the public. Jones, 463 U.S. at 368. This interest is typically stronger in the case of an NGRI than other persons subject to nonpunitive commitment, as an NGRI has been found beyond a reasonable doubt to have committed a criminal act. Id. at 364. 292. Moreover, the Fifth Circuit has reaffirmed the state’s interest in taking reasonable steps to protect society and the acquittee himself from the acquittee’s “potential dangerousness.” Poree, 866 F.3d at 248 (“[T]he governing legal principle derived from Foucha and Jones is that a state may continue to confine an insanity acquittee only so long as the acquittee is both mentally ill and dangerous. . . . [I]n Jones the Court indicated that the dangerousness finding is predictive in nature and that the government is permitted to protect against the ‘potential dangerousness’ of [NGRI] acquittees.”). 293. In light of these authorities, the Court reiterates that Louisiana’s statutory scheme, which allows for the arrest and short-term detention of an NGRI acquittee in jail for violation of conditions of release, with no or less-than-optimal medical care, is facially constitutional.
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294. Such a detention, as in this case, can easily be “reasonably related to a legitimate governmental objective,” Estate of Henson, 795 F.3d at 467 (citing Bell, 441 U.S. at 539), i.e., protection against the real or potential dangerousness of the individual towards himself or others. Poree, 866 F.3d at 248.
295. And while the Court agrees that “continued detention based on dangerousness and mental illness is only constitutional when there has been a sufficiently prompt and full adversarial hearing where the State has proved by clear and convincing evidence that the individual is demonstrably dangerous to the community,” Ward, 2017 WL 1611761 at *4, Louisiana’s statutory scheme provides for such a hearing. La. Code Crim. Proc. arts. 658(B)(6) and 899(B), (E).
296. For the same reason, George’s as-applied claim that his due process rights were violated by his arrest and detention, solely based on his violation of his conditions of release and in the absence of a criminal charge, is also denied.
297. The Court has found as a matter of fact that, at the time of both arrests, George presented both a real and potential danger to those around him.
298. Therefore, Plaintiff’s placement in jail on both occasions was constitutional, as it bore a reasonable relationship to the state’s legitimate interest in protecting others from George’s dangerousness. See Foucha, 504 U.S. at 79; see also Luna, 554 F. Supp. at 72 (“The threat of immediate harm to self or others clearly justifies the initial detention.”).15
15 The Court emphasizes its concern regarding George’s lengthy stays in EBRPP without a hearing or earlier placement in a mental hospital. The Court believes that “continued detention based on dangerousness and mental illness is only constitutional when there has been a sufficiently prompt and full adversarial hearing where the State has proved by clear and convincing evidence that the individual is demonstrably dangerous to the community.” Ward, 2017 WL 1611761 at *4 (emphasis added); see also Luna, 554 F. Supp. at 71-76. There is the additional issue of whether such prolonged incarceration in the absence of adequate psychiatric care is punishment. But, as counsel for Defendants
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299. As the Court also discussed above, at the times when Defendants were considering whether to jail George, there were reasons to believe that alternative placement was unavailable. While the Court questions whether Brady and Tubbs could have done more, mere negligence does not give rise to a constitutional violation. Lewis, 523 U.S. at 848-49 (“[T]he Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.”); Neiberger, 239 F. Supp. 2d at 1149 (citing Lewis, 523 U.S. at 848-49)).
300. Furthermore, under the Youngberg standard, the professional judgment of Tubbs, Brady and Vosburg,16 based upon reasonable evaluation of the threat George posed and the alternatives available, is presumptively valid. Plaintiff has not overcome this presumption, nor does it appear that he could do so in light of the facts previously found by the Court based upon the evidence and testimony at trial. As Youngberg observes, “the Constitution only requires that the courts make certain that professional judgment in fact was exercised. It is not appropriate for the courts to specify which of several professionally acceptable choices should have been made.” 457 U.S. at 321-22.
301. Although Plaintiff encourages the Court to graft a “least restrictive setting” component onto the Youngberg standard, the Fifth Circuit has rejected this approach in a similar factual setting, Lelsz, 807 F.2d at 1249 & n.8 (rejecting reading of Youngberg that “attempt[ed] to transform the state right of a least restrictive environment into a federal right”), and the Court therefore declines to adopt it.
understandably pointed out at oral argument, because the length of George’s incarcerations and quality of medical care were not (and are not) issues before the Court, Defendants did not fully address these issues at trial or in briefing. 16 The Court finds that all three were “professionals” as defined by Youngberg: someone “competent, whether by education, training or experience, to make the particular decision at issue.” 457 U.S. at 323, n. 30.
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302. In the alternative, for substantially the same reasons, the Court cannot conclude that Defendants’ decision to jail George was objectively unreasonable under the circumstances or that the Defendants were actually aware of and disregarded a substantial risk of serious harm. Kingsley, 135 S. Ct. at 2470; Alderson, 848 F.3d at 419-20. This is especially true since George received some level of care, albeit far from ideal, at EBRPP. Instead, Defendants exercised reasonable judgment under the circumstances, evaluating both the threat that George posed and the alternatives available, and came to the objectively reasonable conclusion that short-term placement of George in the EBRPP was warranted.
303. For the foregoing reasons, the Court concludes that Plaintiff has not demonstrated legal justification for the issuance of the requested declaratory judgment and injunction as it pertains to his constitutional claims. I. PLAINTIFF’S CLAIMS SEEKING DECLARATORY AND INJUNCTIVE RELIEF UNDER THE ADA AND SECTION 504
304. In its verdict, the jury found that Defendants DHH and LDPSC had “not discriminate[d] against Plaintiff because of his disabilities” either under the ADA or Section 504. (Doc. 144 at 1-2.) They further found that these same Defendants had not “fail[ed] to provide Plaintiff with a reasonable modification appropriate for his disabilities.” (Id.)
305. Nonetheless, Plaintiff seeks a declaratory judgment that Defendants’ policies, practices, and procedures of arresting and incarcerating individuals in correctional facilities who have been placed on conditional discharge following a finding of NGRI based on a violation of a condition of their discharge violates Plaintiff’s rights under Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act of 1973 (“RA”). (See Doc. 42.) 75

Case 3:14-cv-00338-JWD-RLB Document 169 09/29/17 Page 76 of 78
306. Following initial post-trial briefing, the Court asked the parties to answer certain specific questions, including the following: “With respect to Plaintiff’s claims under the ADA and RA, what effect or weight must/should the Court give to the jury’s findings?” (Doc. 159 at 5.)
307. In response, Plaintiff “admits that, as long as the jury’s findings stand, this Court is obliged to apply [the] law to the facts as the jury found them.” (Doc. 160 at 160.) Defendants agree. (Doc. 161 at 11.)
308. However, under Federal Rule of Civil Procedure 50(b), Plaintiff renews its motion for judgment as a matter of law (“JMOL”) made at the close of the evidence. (Doc. 160 at 2324; Trial Tr., Doc. 150 at 62:21-63:20.) The motion was denied by the Court because of questions of fact on critical questions ultimately answered by the jury in its verdict. (Id. at 63:18-20.) Defendants oppose the motion, arguing principally that there was sufficient evidence to support the jury’s verdict. (Doc. 168 at 4-9.)
309. Plaintiff correctly sets forth the standard the Court must follow in considering Plaintiff’s renewed motion. (Doc. 160 at 23-24). A motion for JMOL raises only a question of law: “[w]hether there is any evidence which, if believed, would authorize a verdict against movant.” Marsh v. Illinois Cent. R. Co., 175 F.2d 498, 500 (5th Cir. 1949). “A judgment as a matter of law is appropriate if the facts and inferences point so strongly and overwhelmingly in favor of one party that reasonable people could not arrive at a verdict to the contrary.” Buchanan v. City of San Antonio, 85 F.3d 196, 198 (5th Cir. 1996). In considering a motion for JMOL, the court is not to re-weigh the evidence or assess the credibility of witnesses. See Lytle v. Household Mgf., Inc., 494 U.S. 545, 554 (1990).
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Rather, the court must examine the entire record in the light most favorable to the nonmovant and draw all inferences in the non-movant’s favor. Becker v. PaineWebber, Inc., 962 F.2d 524, 526 (5th Cir. 1992). 310. At trial, there was an abundance of evidence showing that first, George was arrested because he posed a potential danger to others. (See, e.g., Brady Test., Doc. 148 at 124:24–125:23; Kelly Test., Doc. 149 at 79:21–24, 80:1-6; Pl.’s Trial Ex. 11 at TG000014; Defs.’s Trial Ex. 5 at 1–2.) Second, the uncontradicted testimony at trial was that George was placed at EBRPP because there were no beds available at ELMHS. (See, e.g., Tubbs Test., Doc. 148 at 84:6–10; see also Brady Test., Doc. 148 at 122:4–18, 124:22-23, 126:3–13, 127:21–22). Finally, there was evidence presented to the jury that, while not identical to the care he would have received at ELMHS, nonetheless, he received the care of a psychiatrist and a social worker and received at least some of his psychiatric medicines while at EBRPP. (See, e.g., Burns Test., Doc. 149 at 106:13–110:17, 145:4-9). 311. Considering the evidence in the light most favorable to the Defendants, a reasonable jury could conclude, as this one did, that George was not arrested and incarcerated (the alleged basis for Plaintiff’s charge of discrimination) based on his disability, but rather, based on the potential danger he posed to others and himself. Further, a reasonable jury could conclude that the care he received at EBRPP, while not optimal, was not discriminatory and was a reasonable accommodation under the circumstances. 312. Accordingly, Plaintiff’s renewed motion for judgment as a matter of law is denied.
77

Case 3:14-cv-00338-JWD-RLB Document 169 09/29/17 Page 78 of 78 313. Given the jury’s findings, the Court concludes that Plaintiff has not demonstrated legal
justification for the issuance of the requested declaratory judgment and injunction as it pertains to his ADA and Section 504 claims.
CONCLUSION In light of the foregoing findings of fact and conclusions of law, IT IS HEREBY ORDERED THAT Plaintiff’s renewed motion for judgment as a matter of law is DENIED and Plaintiff’s claims are DENIED in all respects. Judgment shall be entered in favor of Defendants and against Plaintiff by separate document in conformity with Rule 58. Signed in Baton Rouge, Louisiana, on September 29, 2017.
S
JUDGE JOHN W. deGRAVELLES UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA
78

 
 272 F.Supp.3d 855 United States District Court, M.D. Louisiana.
Trussell GEORGE v.
LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, James M. LeBlanc,
Secretary of the Louisiana Department of Public Safety and Corrections, in his official capacity,
Whalen Gibbs, Assistant Secretary of the Louisiana Department of Public Safety and Corrections, in his official and individual capacities, Scott Tubbs, Probation and Parole Agent, in his official and individual capacities, Gerald Starks, Director of the Division of Probation and Parole, in his official and individual capacities, Kathy Kliebert, Secretary of the Louisiana Department of Health and Hospitals, in her official capacity, Louisiana Department of Health and Hospitals, Eric Brady, District Forensic Coordinator, in his official and individual capacities, and Charles P. Vosburg, Consulting Psychologist for the Department of Health and Hospitals, in his official and individual capacities.
CIVIL ACTION NO. 14–CV–00338–JWD–RLB |
Signed September 29, 2017
Synopsis Background: Arrestee, who had been found not guilty by reason of insanity (NGRI) in firearms prosecution and placed on conditional release, brought § 1983 action by and through his guardian ad litem against two state agencies and various state officials, alleging that arrestee’s two arrests while on conditional release violated his rights under Due Process Clause, Americans with Disabilities Act (ADA), and Rehabilitation Act. After jury returned verdict in favor of defendants on ADA and Rehabilitation Act claims, bench trial was held on remaining claims, and arrestee moved for judgment as matter of law with respect to ADA and Rehabilitation Act claims.
Holdings: The District Court, John W. deGravelles, J., held that:
[1] arrestee failed to establish that agencies maintained policy, practice, or procedure of arresting and incarcerating insanity acquittees for violating their conditions of release when no crime had been committed;

[2] arrestee’s two arrests and detentions at parish prison bore reasonable relationship to state’s legitimate interest in protecting others from his dangerousness; and [3] jury’s finding that arrestee was not arrested and incarcerated because of his mental disability was supported by sufficient evidence.
Motion denied.
West Headnotes (16)
[1] Constitutional Law Substantive Due Process in General
In addition to its procedural protections, the Due Process Clause of the Fourteenth Amendment contains a substantive component that bars certain arbitrary, wrongful government actions that deprive a person of life, liberty, or property regardless of the fairness of the procedures used to implement them. U.S. Const. Amend. 14.
Cases that cite this headnote
[2] Constitutional Law Restraint, commitment, and detention
Among the liberty interests protected by the substantive portion of the Due Process Clause are certain fundamental rights such as the freedom from confinement or bodily restraint, which has always been at the core of the liberty protected by the Due Process Clause from arbitrary action. U.S. Const. Amend. 14.
Cases that cite this headnote
[3] Criminal Law Insanity
Criminal Law Degree of proof

A finding of not guilty by reason of insanity (NGRI) means that the defense has proven by a preponderance of the evidence that the defendant was insane at the time the acts were committed and thus cannot be punished for such acts.
Cases that cite this headnote
[4] Mental Health Confinement After Acquittal on Ground of
Mental Disorder A finding of not guilty by reason of insanity (NGRI) does not mean that the NGRI acquittee is free to resume his life unfettered by any restrictions; society has an interest in insuring that an insanity acquittee poses no danger to himself or the public.
Cases that cite this headnote
[5] Mental Health Discharge from confinement
A state may continue to confine an insanity acquittee only as long as the acquittee is both mentally ill and dangerous.
Cases that cite this headnote
[6] Mental Health Discharge from confinement
The state must prove two conditions to justify continued confinement of an insanity acquittee, i.e., mental illness and dangerousness.
Cases that cite this headnote

[7] Constitutional Law Commitment pending competency
determination Mental Health
Confinement After Acquittal on Ground of Mental Disorder
In the case of an insanity acquittee, purposes for confinement that are permissible under the Due Process Clause include treating the mental illness and protecting the acquittee and society from his potential dangerousness. U.S. Const. Amend. 14.
Cases that cite this headnote
[8] Constitutional Law Substantive Due Process in General
The Fourteenth Amendment’s substantive due process guarantee protects citizens from arbitrary, abusive, or oppressive use of governmental power. U.S. Const. Amend. 14.
Cases that cite this headnote
[9] Constitutional Law Restraint, commitment, and detention
In weighing a civilly committed individual’s due process liberty interests against unreasonable restraints, a court must show deference to the judgment exercised by a qualified professional, which is entitled to a presumption of correctness. U.S. Const. Amend. 14.
Cases that cite this headnote
[10] Constitutional Law Commitment pending competency
determination Mental Health
Discharge from confinement
Insanity acquittee failed to establish that state

agencies maintained policy, practice, or procedure of arresting and incarcerating insanity acquittees for violating their conditions of release when no crime had been committed, and thus acquittee failed to establish that any deprivation of his substantive due process rights was caused by agencies’ policies, practices, or procedures; acquittee was only arrested twice, the two arrests occurred under different factual circumstances, as first involved acquittee’s conduct while on release in group home and second occurred at mental health treatment facility, and state official invoked authority of the court to revoke insanity acquittees rather than simply arresting and incarcerating them on his own. U.S. Const. Amend. 14.
Cases that cite this headnote
[11] Constitutional Law Commitment pending competency
determination
For purposes of a substantive due process claim, the societal interest of protecting the public is typically stronger in the case of an insanity acquittee than other persons subject to nonpunitive commitment, as an insanity acquittee has been found beyond a reasonable doubt to have committed a criminal act. U.S. Const. Amend. 14.
Cases that cite this headnote
[12] Constitutional Law Commitment pending competency
determination Mental Health
Discharge from confinement
Insanity acquittee’s two arrests and detentions at parish prison, solely based on his violations of his conditions of release and in absence of a criminal charge, bore reasonable relationship to state’s legitimate interest in protecting others from acquittee’s dangerousness, and thus acquittee’s substantive due process rights were not violated; acquittee had been repeatedly aggressive toward staff at mental health facility,

professional judgment of state officials was that acquittee posed danger to himself and others at facility based on his conduct, and state officials believed that alternative placement in less restrictive facility was unavailable at time of arrests. U.S. Const. Amend. 14; La. Code Crim. Proc. Ann. arts. 658, 899.
Cases that cite this headnote
[13] Federal Civil Procedure Weight and Sufficiency of Evidence
Federal Civil Procedure Evidence
A motion for judgment as a matter of law (JMOL) raises only a question of law, i.e., whether there is any evidence which, if believed, would authorize a verdict against the movant. Fed. R. Civ. P. 50(b).
Cases that cite this headnote
[14] Federal Civil Procedure Conclusions or inferences from evidence
Federal Civil Procedure Evidence
A judgment as a matter of law is appropriate if the facts and inferences point so strongly and overwhelmingly in favor of one party that reasonable people could not arrive at a verdict to the contrary. Fed. R. Civ. P. 50(b).
Cases that cite this headnote
[15] Federal Civil Procedure Construction of evidence
Federal Civil Procedure Construction of evidence
In considering a motion for judgment as a matter of law (JMOL), the court is not to re-weigh the evidence or assess the credibility of witnesses; rather, the court must examine the entire record

in the light most favorable to the non-movant and draw all inferences in the non-movant’s favor. Fed. R. Civ. P. 50(b).
Cases that cite this headnote

Coordinator, in his official and individual capacities, and Charles P. Vosburg, Consulting Psychologist for the Department of Health and Hospitals, in his official and individual capacities.

[16] Civil Rights Criminal law enforcement;  prisons
Jury’s finding that insanity acquittee was not arrested and incarcerated because of his mental disability, such that he was not discriminated against in violation of ADA, was supported by sufficient evidence, including evidence that acquittee was arrested because he posed potential danger to others, that there were no beds available at mental health facility, and that he received mental health care while at parish prison. Americans with Disabilities Act of 1990 § 202, 42 U.S.C.A. § 12132.
Cases that cite this headnote
Attorneys and Law Firms
Ronald Kenneth Lospennato, Kathryn Fernandez, Laura Lee Thornton, Advocacy Center of Louisiana, Eric Andrew Foley, Katharine Murphy Schwartzmann, Roderick & Solange MacArthur Justice Center, New Orleans, LA, Ellen B. Hahn, Lafayette, LA, for Trussell George.
Jeffrey K. Cody, Edmond Wade Shows, Shows, Cali, Berthelot & Walsh, LLP, Jenna Germany Young, Lindsay L. Pantaleo, LA Dept of Health & Hospitals, James L. Hilburn, Baton Rouge, LA, for Louisiana Department of Public Safety and Corrections, James M. LeBlanc, Secretary of the Louisiana Department of Public Safety and Corrections, in his official capacity, Whalen Gibbs, Assistant Secretary of the Louisiana Department of Public Safety and Corrections, in his official and individual capacities, Scott Tubbs, Probation and Parole Agent, in his official and individual capacities, Gerald Starks, Director of the Division of Probation and Parole, in his official and individual capacities, Kathy Kliebert, Secretary of the Louisiana Department of Health and Hospitals, in her official capacity, Louisiana Department of Health and Hospitals, Eric Brady, District Forensic

FINDINGS OF FACTS AND CONCLUSIONS OF LAW
JUDGE JOHN W. deGRAVELLES

TABLE OF CONTENTS

OVERVIEW...859

A. INTRODUCTION...859

B. PROCEDURAL HISTORY...859

C. SUMMARY OF CONTENTIONS OF PARTIES...860

D. ISSUES BEFORE THE COURT...863

E. BACKGROUND AND PARTIES’ FACTUAL ARGUMENTS...863

F. DEPARTMENT OF PUBLIC SAFETY AND

CORRECTIONS’

OVERSIGHT

RESPONSIBILITIES FOR PERSONS ON

CONDITIONAL RELEASE...865

G. LOUISIANA DEPARTMENT OF HEALTH’S OVERSIGHT RESPONSIBILITIES FOR PERSONS ON CONDITIONAL RELEASE...865

H. TRUSSELL GEORGE’S ARREST AND INCARCERATION IN JULY 2013...866

I. EVENTS FOLLOWING AUGUST 23, 2013 RELEASE FROM EBRPP...870

J. TRUSSELL GEORGE’S DECEMBER 2013 TO DECEMBER 2014 CONDITIONAL RELEASE...871

K. TRUSSELL GEORGE’S ARREST AND INCARCERATION IN 2014...871

FINDINGS OF FACT...873

A. JULY 29, 2013 INCARCERATION...874

ARREST

AND

B. ADEQUACY OF MEDICAL CARE AT EBRPP...877

C.

JULY

2014

INCARCERATION...878

ARREST

AND

D. POLICY, PROCEDURE OR PRACTICE, VEL NON...879

E. DISCRETE SUBSTANTIVE DUE PROCESS VIOLATIONS TO GEORGE, VEL NON...880

CONCLUSIONS OF LAW...880

A. JURISDICTION AND VENUE...880

B. PARTIES...881

C. ISSUES BEFORE THE COURT...881

D. STATUTORY RIGHTS OF THOSE FOUND NOT GUILTY BY REASON OF INSANITY...881

E. SUBSTANTIVE DUE PROCESS RIGHTS OF NGRI ACQUITTEES AND STANDARD FOR APPLYING THEM...883

F. APPLICATION OF LAW TO FACTS OF CASE...892

G. EXISTENCE AND CONSTITUTIONALITY OF ALLEGED POLICY, PRACTICE, AND PROCEDURE...892

H. ARREST AND INCARCERATION FOR VIOLATIONS OF CONDITIONS OF RELEASE WHEN NO CRIME WAS COMMITTED...893

I.

PLAINTIFF’S

CLAIMS

SEEKING

DECLARATORY AND INJUNCTIVE RELIEF

UNDER THE ADA AND SECTION 504...896

CONCLUSION...898

OVERVIEW

A. INTRODUCTION
1. Plaintiff Trussell George (“Plaintiff” or “George”) brings this action by and through his guardian ad litem Letetica Walker. (Mot. to Appoint a Guardian Ad Litem, Doc. 58 at 1; and Order, Doc. 63 at 1.) George is a person

with a mental illness, who, on September 25, 2008, was found Not Guilty by Reason of Insanity (“NGRI”) of possession of a firearm by a known felon. (Order, Pl.’s Trial Ex. 1 at TG000001.) On December 15, 2008, he was granted a Judgment of Supervised Probation and was conditionally released. (Id. See also Pl.’s Trial Exs. 4 at TG000005, 6 at TG000007, 24 at 1, ¶ 2.)
2. While on conditional release, George was arrested and placed in the East Baton Rouge Parish Prison (“EBRPP”) on two separate occasions, July 29, 2013 and July 1, 2014.
3. Plaintiff’s claims against various defendants (“Defendants”) are for declaratory and prospective injunctive relief under 42 U.S.C. Section 1983, 29 U.S.C. Section 794(a) and 42 U.S.C. Section 12132 pursuant to 28 U.S.C. Section 2202 and Federal Rule of Civil Procedure 65. (Pl.’s Second Amended Complaint, Doc. 42 at 18–23.) He claims that the arrests and detentions were wrongful and violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution and the above statutes. (Pl.’s Request for Finding of Fact and Rulings of Law, Doc. 151 at 1–2, 32–33.)
4. For the reasons which follow, the requested relief is denied.
B. PROCEDURAL HISTORY
5. By way of a complaint (Complaint, Doc. 1) and two amended complaints (Pl.’s First Amended Complaint, Doc. 24 and Doc. 42),1 Plaintiff sued two agencies of the State of Louisiana, the Louisiana Department of Public Safety and Corrections (“LDPSC”) and the Louisiana Department of Health (“LDH”),2 along with seven individuals in their official capacities: James M. LeBlanc (“LeBlanc”), Rebekah E. Gee (“Gee”), Whalen Gibbs (“Gibbs”), Gerald Starks (“Starks”), Scott Tubbs (“Tubbs”), Eric Brady (“Brady”) and Charles Vosburg (“Vosburg”), (collectively, “Defendants”).3
6. The suit originally asked for compensatory and punitive damages as well as declaratory and injunctive relief under 42 U.S.C. Section 1983; 29 U.S.C. Section 794(a), Section 504 of the Rehabilitation Act of 1973 (“Section 504” or the “RA”); and 42 U.S.C. Section 12132, Title II of the Americans with Disabilities Act of 1990 (“ADA”). However, Plaintiff’s claims against Gibbs, Starks, Vosburg, Brady and Tubbs in their individual capacities were dismissed on June 25, 2016, (Mot. to Voluntarily Dismiss Claims for Damages Against Defs.’ [sic] Whalen Gibbs, Geral [sic] Starks,

Charles Vosburg, Eric Brady, and Scott Tubbs in their Individual Capacities, Docs. 129 at 1; Minute Entry, Doc. 138 at 2), leaving only the official capacity claims against all Defendants. (Trial Tr. vol. 1, Doc. 148 at 26:17– 27:19.)
7. Motions for summary judgment were filed by both Plaintiff (Pls.’ Mot. For Partial Summ. J., Doc. 76 at 3.) and Defendants (Defs.’ Mot. For Summ. J., Doc. 74 at 4,) and both were denied. (Order, Doc. 112 at 1; Order and Ruling on Mots. For Summ. J., Doc. 124 at 30.) As a part of the rulings, the Court found that two of the involved statutes, La. Code Crim. Proc. arts. 658 and 899, were facially constitutional but that there were fact questions precluding summary judgment. (Doc. 124 at 3, 22–26.)
8. The Court also found there were questions of fact which needed to be resolved in order to determine George’s claims arising under the ADA and Section 504. (Id. at 28–30.)
9. On June 27 through June 29, 2016, the case was tried simultaneously to a jury and the Court. (Minute Entry, Doc. 138–139, in globo; Minute Entry, Doc. 145, in globo; Trial Tr. vol. 1, Doc. 148, in globo; Trial Tr. vol. 2, Doc. 149, in globo; and Trial Tr. vol. 3, Doc. 150, in globo.) At the conclusion of the trial, that portion of the case tried to the jury was submitted to it for decision. The jury rendered a verdict for LDPSC and LDH on the claims arising under Section 504 and the ADA. (Jury Verdict Form, Doc. 144 at 2–3.) Specifically, the jury found that these defendants had not discriminated against Plaintiff under Section 504 and the ADA and had not failed to make reasonable accommodations to Plaintiff’s disabilities under either statute. (Id.)
10. As to that portion of the case tried to the Court, the Court took the matter under advisement and the parties were ordered to file proposed findings of fact and conclusions of law within 30 days of the filing of the trial transcript. (Doc. 150 at 192:22–193:1). The parties’ proposed findings and conclusions were filed as Docs. 151 and 152, respectively. (Pl.’s Request for Finding of Fact and Rulings of Law, Doc. 151 at 51; Defs.’ Proposed Findings of Fact and Conclusions of Law, Doc. 152 at 13.) The Court then requested the parties’ responses to certain specific questions. (Doc. 159.) They responded in Docs. 160 (Plaintiff’s Memorandum of Law (“P Mem.”)) and 161 (Defendants’ Answers to Questions Raised (“D Mem.”).) Plaintiff’s response also asked the Court to “consider his renewed motion for judgment as a matter of law” with respect to his Section 504 and ADA claims. (Doc. 160 at 23.) The Court heard oral argument on September 20, 2017. (Doc. 164). Following oral argument, Plaintiff filed a Supplemental Memorandum discussing whether a settlement agreement in another case

moots or bars his claims4 (Doc. 167), and Defendants filed a Memorandum in Opposition to Plaintiff’s Renewed Motion for Judgment as a Matter of Law (Doc. 168).
C. SUMMARY OF CONTENTIONS OF PARTIES
11. Plaintiff contends that Defendants’ “policies, practices and procedures ... caused him to be arrested and incarcerated on two separate occasions ... [in] violat[ion] of his rights under the Due Process Clause of the Fourteenth Amendment of the United States Constitution, and subjected him to intentional discrimination in violation of Section 504 of the Rehabilitation Act of 1973 ... and Title II of the Americans with Disabilities Act of 1990.” (Doc. 42 at 2, ¶ 1.)
12. The “policies, practices and procedures” about which Plaintiff specifically complains are those “which cause persons who have been found NGRI and are able to be released on specified conditions without danger to themselves or others to be confined in correctional facilities for the sole reason that they are alleged to have violated a condition of their release ....” (Doc. 42 at 19, ¶ 91; 20–21, ¶ 97; 21, ¶ 101; 22, ¶ 106; and 23, ¶ 109.)
13. In addition, Plaintiff claims “Defendants’ actions ... which caused Plaintiff to be confined in a correctional facility for the sole reason that he is alleged to have violated a condition of his release, violate his rights under the Due Process Clause to the United States Constitution.” (Doc. 42 at 19, ¶ 93.)
14. In his post-trial briefing, Plaintiff broadens this contention. There, Plaintiff contends that “Defendants, acting under color of state law and pursuant to state policies and practices, deprived [Plaintiff] of his liberty by intentionally incarcerating him in the East Baton Rouge Parish prison twice, once in 2013 and again in 2014 (1) for allegedly violating a term of his conditional release, even though there was no allegation, nor probable cause to believe, that he had violated any criminal statute; (2) for behavior [ ] that was a clear manifestation of his mental illness; and (3) despite the fact that he clearly needed treatment in a state or private mental health institution.” (Doc. 151 at 1.)
15. In his Second Amended Complaint, Plaintiff asks for both declaratory and injunctive relief. As to the former, he asks the Court to declare “that Defendants’ policies, practices and procedures of arresting and incarcerating individuals in state correctional facilities who have been placed on conditional discharge following a finding of NGRI, solely because they are alleged to have violated a

condition of their discharge, violate Plaintiff’s rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, Section 504 of the Rehabilitation Act of 1973, and Title II of the American with Disabilities Act of 1990.” (Doc. 42 at 23– 24; see also Doc. 151 at 1–2.)
16. In addition, Plaintiff asks for an injunction “prohibiting Defendants from arresting and incarcerating individuals in state correctional facilities who have been placed on conditional discharge following a finding of NGRI, solely because they are alleged to have violated a condition of their discharge.” (Doc. 42 at 23, ¶ B.)
17. The Court notes that the relief requested in Plaintiff’s post-trial briefing is in some respects broader and in others more specific than in his Second Amended Complaint, namely requesting an injunction requiring:
a. “So long as Mr. George remains on conditional discharge, Defendants are prohibited from arresting and incarcerating him in any correctional facility because there is an allegation that he violated a condition of his discharge in the absence of a reasonable belief that he has committed a criminal offense.” (Doc. 151 at 50, ¶ 193.)
b. “[T]he Defendants [are barred] from arresting and incarcerating [Plaintiff] solely because he has violated a term of his conditional release.” (Id. at 2.)
c. “If Mr. George is alleged to have violated a condition of his discharge, but he is not charged with a new criminal offense, Defendants’ sole recourse is to have him voluntarily admitted to ELMHS or another a suitable mental health treatment facility pursuant to La. R.S. 28:52, or by emergency certificate to such a facility pursuant to La. R.S. 28:53, with subsequent notice to the court. La. Code Crim. P. art. 658(B)(4).” (Id. at 50, ¶ 194.)
d. “Defendants shall, within 30 days of the date of this order, promulgate and implement written policies and procedures that prohibit its agents, employees, contractors, or assigns from arresting and incarcerating any individuals in correctional facilities who have been placed on conditional discharge following a finding of NGRI, solely because they are alleged to have violated a condition of their discharge. Such policies and procedures shall also provide that if an individual who has been placed on conditional discharge following a finding of NGRI is alleged to have violated a condition of his discharge, but that individual has not been charged with a new criminal offense, Defendants’ sole recourse is to have him voluntarily admitted to ELMHS or another

[ ] suitable mental health treatment facility pursuant to La. R.S. 28:52, or by emergency certificate to such a facility pursuant to La. R.S. 28:53, with subsequent notice to the court. La. Code Crim. P. art 658(B)(4).” (Id. at 50–51, ¶ 195.)
18. In Plaintiffs’ briefing, Plaintiff also seems to raise complaints broader than that needed to support the relief he requests, namely the length of time George was incarcerated, the quality of care he received while in jail, and the issue of George’s lengthy incarcerations without a hearing. (See, e.g. Doc. 151 at 15–18, ¶¶ 59–68; 37, ¶ 151.) In response to the Court’s inquiry on this issue, counsel for Plaintiff reassured the Court that the constitutional issue in this case is limited to the issue of whether the arrest and incarceration of George solely for violations of conditions of release in the absence of a criminal arrest violated George’s substantive due process rights, and do not include the issues of length of incarceration before release, length of incarceration without or before a hearing, and adequacy of medical care and other issues. (Doc. 163 at 1.)
19. The Court notes that although the Second Amended Complaint also asks the Court to declare La. Code Crim. Proc. arts. 658(B) and 899 facially unconstitutional (Doc. 42 at 24), the Court previously denied that challenge. (Doc. 124 at 18–19, 22–24.) Plaintiff’s demand for compensatory and punitive damages was voluntarily dismissed. (Docs. 129 at 1; 138 at 2; 148 at 26:19–27:4.)
20. Defendants, on the other hand, contend that, at all times, they acted reasonably and within the bounds of the law and that Defendants’ conduct as well as their policies, procedures and practices did not violate the Constitution, Section 504, or the ADA. (Doc. 152 at 10–12, ¶ 89, ¶ 97– 99, ¶ 105–106.)
21. According to Defendants, Plaintiff’s arrests and incarcerations were provoked by Plaintiff’s aggressive, assaultive and dangerous behavior and were supported by probable cause that he was violating or about to violate the terms and conditions of his release. (Id. at 5, 10–12.)
22. In addition, Defendants contend that George’s arrests and incarcerations until he could have a hearing and be placed in a suitable psychiatric facility were made because he was a danger to himself and others and thus were justified under both Louisiana’s statutory scheme and the Constitution. (Id. at 10–12.)
23. Defendants urge the Court to find, as the jury did, that there was no discrimination against Plaintiff under either the ADA or Section 504. (Id. at 12, ¶¶ 104–105.)
24. Finally, Defendants claim that the facts adduced at

trial justify neither a declaratory judgment nor injunction under any law and therefore ask this Court to reject all of Plaintiff’s remaining claims against Defendants.
D. ISSUES BEFORE THE COURT
25. In order to resolve this dispute, the Court must resolve the following issues:
a. Did Defendants have in place policies, practices, or procedures causing or allowing NGRI acquittees to be arrested and incarcerated at a correctional facility solely for a violation (or anticipated violation) of the conditions of the acquittee’s release, even when no crime had been committed?
b. Were George’s arrests or incarcerations made pursuant to this policy?
c. Even if there were no such policies, procedures or practices, under the specific facts of this case, did George’s arrests and subsequent incarcerations at a correctional facility, solely because of a violation of his conditions of release, in the absence of a criminal arrest, violate his substantive due process rights under the United States Constitution and/or his statutory rights under Section 504 and the ADA?
E. BACKGROUND AND PARTIES’ FACTUAL ARGUMENTS
26. Plaintiff is a person with mental illness who, on September 25, 2008, was found NGRI of a criminal offense, specifically the offense of being a felon in possession of a firearm. (Trial Stipulations, Pl.’s Trial Ex. 24 at 2, Trial Stipulation No. 5; see also Pl.’s Trial Ex. 4 at TG000005; & Pl.’s Trial Ex. 6 at TG000007.)
27. On December 15, 2008, the Nineteenth Judicial District Court in East Baton Rouge, Louisiana, the court with jurisdiction over his criminal charges, ordered that George be conditionally released from inpatient hospitalization and into the community pursuant to La. Code Crim. Proc. art. 657.1, for a period of five years. (Pl.’s Trial Ex. 1 at TG000001; Pl.’s Trial Ex. 24 at 1, No. 2.)
28. In issuing the 2008 conditional release order, the Nineteenth Judicial District Court found that George was not in need of further inpatient treatment, provided that he receive adequate outpatient treatment, supervision, and

monitoring. (Pl.’s Trial Ex. 1 at TG000001; Pl.’s Trial Ex. 24 at 1, No. 3.)

29. However, this release was conditioned on Plaintiff following certain requirements. The most important of these, for purposes of the issues in this case, states, in pertinent part:

Any

physically

assaultive/aggressive behaviors

shall be reported to the District

Forensic Coordinator or State

Probation Officer. Violations of

this condition may result in

immediate return to custody or

intensified

treatment

if

recommended by the District

Forensic Coordinator or Probation

Officer.

(Pl.’s Trial Ex. 1 at TG000002, ¶ K; see also Pl.’s Trial Ex. 24 at 1, No. 3.)

30. The following additional condition was imposed by law:

It shall be a condition of every such probation that the person released shall be recommitted if he becomes dangerous to others or to himself for reasons of his mental illness, substance abuse, or intellectual disability.

La. Code. Crim. Proc. art. 658(A)(2014).

31. From December 2008 to May 2014, as required under the terms of his conditional release, George resided in group homes operated by Progressive Health Care Providers (PHP), located in Baton Rouge, Louisiana. (Pl.’s Trial Ex. 24 at 2, No. 4; Martinez Test., Doc. 148 at 30:18–31:2, 35:13–36:22, 45:5–15; Hope Test., Doc. 149 at 175:3–11.)

32. “While living in group homes, George was under the joint supervision of the [Division of Probation and Parole (“DPP”) ] of the [LDPSC] and [Community Forensic Services (“CFS”) ] of the [LDH] ...” (Pl.’s Trial Ex. 24 at 2, No. 5.) The details of the respective duties of these two state agencies towards George and other NGRI acquittees is discussed in more detail infra.

33. Although the location of the group home changed after 2008, George resided in a group home setting as required by his conditional release order until May 2014. (Id. at 2, No. 4; Martinez Test., Doc. 148 at 30:18–31:2,

35:13–36:22, 45:5–15; Hope Test., Doc. 149 at 175:3– 11.)
34. The group homes in which George was placed were Intermediate Care Facilities for People with Developmental Disabilities (“ICF–DD”). (Martinez Test., Doc. 148 at 29:24–30:13.)
35. Intermediate Care Facilities for People with Developmental Disabilities (“ICFs–DD”) are funded through the Medicaid program and operated by the Defendant LDH. (Hope Test., Doc. 149 at 201:14–24.)
36. Medicaid is a federally mandated program that provides federal financial assistance to states, including Louisiana, so that that they can provide medical care to poor and disabled individuals. See 42 U.S.C. Section 1396b(a), 1396d(b); see generally Curtis v. Taylor, 625 F.2d 645 (5th Cir. 1980).
37. ICFs–DD are one of a number of residential services options operated under the auspices of the LDH. (See La. Rev. Stat. Ann. § 28:451.1–455.2 (2005)). They provide various services for those who reside there.
38. Due to his mental illness, George would occasionally engage in verbal aggression, non-compliance and threatening behavior at the group home and at the day program he attended during the week. His Behavioral Support Plan noted these outbursts, and the threatening episodes would usually occur when his medication was not correct. (Hope Test., Doc. 149 at 188:1–189:21; Pl.’s Ex. 17, TG000151–53.)
39. Therefore, medication management was a critical service for George. As Ms. Martinez stated:
A. Trussell is very different off medication. When he’s not taking medication, he’s very delusional, very nervous, agitated, untrustworthy, very disheveled, not—not the Trussell that I’ve known for—for the years that I’ve known him.
Q. When you say, ‘delusional,’ can you give me an example of how that would manifest itself?
A. Trussell would talk a lot about god and the devil and Bob and—
Q. Bob?
A. Bob. When—when Trussell—the times that I’ve seen Trussell in what I say is a delusional manner, he talks about Bob. And Bob is a person that is in his life that fights Satan and fights the devil and steals money and tries to kill people.

(Martinez Test., Trial Tr. vol. 1, 34:14–35:3.)
40. Prior to July 2013, Mr. George occasionally–two or three times a year–would be voluntarily admitted (sometimes at his request) to a hospital to have his medication adjusted. (See Martinez Test., Doc. 148 at 35:4–25.)
41. As previously mentioned, while living in group homes, George was under the joint supervision of the DPP of the LDPSC and of the CFS of LDH. (Pl.’s Trial Ex. 24 at 2, No. 5; see also La. Code Crim. Proc. art. 658(B) (2014).)
42. Defendants LDPSC and LDH received federal financial assistance and are public entities as defined by 42 U.S.C. Section 12131(1)(B). (Pl.’s Trial Ex. 24 at 4, No. 16.)
F. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS’ OVERSIGHT
RESPONSIBILITIES FOR PERSONS ON CONDITIONAL RELEASE
43. Defendant LDPSC is the state agency responsible for monitoring and providing services to persons placed on conditional release or probation pursuant to La. Code. Crim. Proc. art. 657. DPP is the division within LDPSC that carries out this duty and which supervised George’s conditional release. (Id. at 2, No. 6.)
44. Specifically, it is the responsibility of the DPP to ensure that the general and special conditions of the ordered supervision are followed for each acquittee (also sometimes referred to as “supervisee”). Its employees make personal contact with the supervisees pursuant to DPP’s policies and when otherwise necessary. The agency is responsible for monitoring supervisees for compliance with conditions, addressing any issues required by the courts, consulting with the forensic coordinator, drug testing supervisees, and arresting supervisees. (Id. at 2, No. 7.)
45. At the time of trial, Defendant LeBlanc was Secretary of LDPSC. Pursuant to La. R.S. 36:403, he was responsible for the administration, control, and operation of the functions, programs, and affairs of the LDPSC. (Id. at 3, No. 8.)
46. Defendant Gibbs was the Assistant Secretary of LDPSC and, as such, he directed the operations of DPP. Pursuant to La. R.S. 15:574.11(A), DPP provides for the investigation and supervision of adjudicated adult

offenders. Also, pursuant to La. Code Crim. Proc. art. 658(B)(1), the DPP is charged with supervising individuals who have been placed on conditional release following a finding of NGRI. (Id. at 3, No. 9.)
47. Defendant Starks was the Director of the DPP. As such, he assisted in the administration, development, and implementation of policies of the DPP. (Id. at 3, No. 10.)
48. Defendant Tubbs was a Probation and Parole Officer of DPP. (Id. at 3, No. 11; see also Doc. 148 at 64:14–19.)
49. Tubbs specialized in supervising mentally ill people for about seven years at the time of trial, including those acquitted as NGRI. (Doc. 148 at 64:20–65:14.)
50. Tubbs had the responsibility to monitor the conditional release of George. (Id. at 65:13–17.)
G. LOUISIANA DEPARTMENT OF HEALTH’S OVERSIGHT RESPONSIBILITIES FOR PERSONS
ON CONDITIONAL RELEASE
51. Defendant LDH is a state agency that operates the CFS program and Eastern Louisiana Mental Health System (“ELMHS”) in Jackson, Louisiana. (Pl.’s Trial Ex. 24 at 4, No. 13.)
52. Defendant LDH receives federal financial assistance. (Id. at 4, No. 16.)
53. Defendant Gee was the Secretary of the LDH. Pursuant to La. R.S. 36:254, the Secretary of the LDH was responsible for the oversight, supervision and control of LDH and its divisions and was ultimately responsible for ensuring that LDH’s services for people with disabilities were provided in conformance with federal law. (Id. at 3, No. 12.)
54. Defendant Brady was employed by LDH as a District Forensic Coordinator (“DFC”) within the CFS program. (Id. at 4, No. 14; see also Doc. 151 at 9, ¶ 33 & Doc. 152 at 3, ¶ 15.) As such, Brady worked under the direction and supervision of the Secretary of the LDH. (Pl.’s Trial Ex. 24 at 3, No. 12.)
55. Brady had responsibility for monitoring individuals who were found NGRI and placed on conditional discharge and for implementing certain policies and procedures of LDH with respect to such persons. (Brady Test., Doc. 148 at 92:8–11, 99:12–101:15.)
56. One of Brady’s functions as a DFC was to facilitate

inpatient hospitalization when other avenues for treatment failed. (Brady Test., Doc. 148, 102:10–104:15.)
57. Brady visited George to perform “six-month evaluations” and provided reports regarding George’s compliance with the terms of his conditional release and recommending whether George should continue on conditional release. (See Brady Test., Doc. 148 at 107– 108, in globo.)
58. Defendant Vosburg was a clinical psychologist and a consultant for CFS and LDH. (Pl.’s Trial Ex. 24 at 4, No. 15; Defs.’ Trial Ex. 8, in globo.)
59. Vosburg had responsibility for evaluating and providing mental health services, in accordance with the policies and procedures of LDH, to individuals placed on conditional discharge and persons found NGRI who had been placed at ELMHS. He provided recommendations as to placement, graduation/termination, revocation, and treatment. (See Pl.’s Trial Exs. 4 at TG000005, ¶ 2; 5 at TG000006; 6 at TG000007; 8 at TG000010; 9 at TG000011; 13 at TG000017; and 14 at TG000019.)
60. Vosburg had evaluation and oversight responsibilities regarding George’s conditional release since 2009 and over the course of that time had evaluated George on at least eight occasions. (Brady Test., Doc. 148 at 107:20– 108:5; Pl.’s Trial Exs. 4 at TG000005; 5 at TG000006; 6 at TG000007; 8 at TG000010; 9 at TG000011; 13 at TG000011; and 14 at TG000019; Defs.’ Trial Ex. 8, in globo.)
H. TRUSSELL GEORGE’S ARREST AND INCARCERATION IN JULY 2013
61. On May 24, 2013, Brady submitted an episode report to the state district court indicating that staff at Progressive Health Care had reported to him that George “had two episodes of verbal aggression and verbal threats within the last two (2) weeks to have one of his family members attack one of their direct care staff members.” (Pl.’s Trial Ex. 8 at TG000010; see also Defs.’ Trial Ex. 3 at 0001.)
62. In this report, Brady also noted that, although George had been recently hospitalized for approximately two weeks at Beacon Behavioral Hospital in Lutcher, Louisiana, and had received a medication adjustment, “his behavior seemingly has escalated towards direct care personnel.” (Pl.’s Trial Ex. 8 at TG000010; Defs.’ Trial Ex. 3 at 0001.).

63. This report also stated that Brady “spoke to his probation officer [Defendant Tubbs] on 5/23/13 who [would] be petitioning this honorable court for a status review to discuss these recent events and plan of action to address these concerns.” (Pl.’s Trial Ex. 8 at TG000010; Defs.’ Trial Ex. 3 at 0001.)
64. On June 10, 2013, Tubbs sent a letter to the state district court advising “that in the last 4 weeks [George] has been verbally aggressive with staff over food” and requested that a review hearing be scheduled to address George’s violations of the group home’s rules. (Pl.’s Trial Ex. 9 at TG000011; Defs.’ Trial Ex. 4 at 0001; Tubbs Test., Doc. 148 at 74:23–75:5.)
65. For reasons not explained in the evidence, the State District Court did not respond to that request for a hearing.
Q. And you don’t know if a court ever set a date for a hearing on these issues, did it?
A. I don’t believe they did on that letter.
(Tubbs Test., Doc. 148 at 75:24–76:1.)
66. In addition, staff personnel at the group home advised Tubbs that they did not want George at their group home because he kept causing problems. (Id. at 82:8–10).
67. “On or about 7–15–13, [George] got aggressive with a staff member at his day program and they had to send him to the mental hospital due to his attitude. He was released from the hospital on 7–25–13.” (Defs.’ Trial Ex. 5 at 1– 2.) According to Tubbs’ testimony at trial, he was told that George had assaulted or physically harmed a staff member. (Tubbs Test., Doc. 148 at 78:2–79:25.)
68. On July 25, 2013, the day of George’s release from the mental hospital, Tubbs met with George and felt something “wasn’t right” and that “the medicine that they adjusted wasn’t working for him.” (Id. at 80:7–9.)
69. “On [July 27, 2013], [George] told staff that he was going to do something to them if they did not bring him to get his hair cut. Then [he] told another client that he was going to kill them.” (Defs.’ Trial Ex. 5 at 1–2.)5
70. At this point, Tubbs conferred with Brady, who in turn consulted with Vosburg. (Tubbs Test., Doc. 148 at 84:2–5; 124:17–23.) Tubbs told Brady that George was being “very aggressive.” (Id. at 124:24–125:23.)
71. At this point Brady inquired whether there were any beds available at ELMHS and was told there were none. He informed Tubbs of this fact. (Tubbs Test., Doc. 148 at

84:6–10. See also Brady Test., Doc. 148 at 122:4–18; 124:22–23; 126:3–13).
72. Tubbs also consulted with his supervisor regarding the decision of whether to arrest George. (Tubbs Test., Doc. 148 at 84:2–24.)
73. Brady, Tubbs and Vosburg jointly decided to have George arrested and placed in the EBRPP. (Brady Test., Doc. 148 at 124:12–125:23.)
Q. So the decision to arrest Mr. George in July 2013 was made collectively by [Brady], Dr. Vosburg and Mr. Tubbs; is that correct?
A. Yes, Ma’m [sic].
(Id. at 125:20–23.)
74. On July 29, 2013, Tubbs wrote a letter to Progressive stating that “[George] has broken his conditions of probation for the 3rd time by being aggressive with staff.” (Pl.’s Ex. 10 at TG000012.). Employees of George’s day program drove George to Tubbs’ office, where Tubbs decided to arrest him and have him incarcerated in EBRPP. (Tubbs Test., Doc. 148 at 81:20–82:24.)
75. Tubbs’ “Detainer Notification, Affidavit of Probable Cause, and Motion for Hearing” to Revoke Probation6 sets forth the basis for Plaintiff’s arrest on July 29, 2013:
Around June 1st 2013, he was aggressive with staff because he could not get a hamburger for dinner one night. Staff gave him a sandwich and he got in the face of a staff member and started yelling “you better get me a hamburger”.
On or about 7–15–13, he got aggressive with a staff member at his day program and they had to send him to the mental hospital due to his attitude. He was released from the hospital on 7–25–13.
On 7–27–13, the subject told staff that he was going to do something to them if they did not bring him to get his hair cut. Then told another client that he was going to kill them.
(Pl.’s Trial Ex. 11 at TG000014; Defs.’s Trial Ex. 5 at 1– 2.)
76. Tubbs testified that he did not decide to arrest George because he suspected George of having committed a crime;7 indeed, no criminal charges were ever filed against George for any of the activities that gave rise to his arrest. (Tubbs Test., Doc. 148 at 82:14–17.) Tubbs testified that the decision to arrest George was in accordance with LDPSC policy. (Id. at 84:17–20.)

77. Rather, the decision to arrest George was made because of the consensus reached among Tubbs, Brady and Vosburg that George was “a danger to himself or others.” (Brady Test., Doc. 148 at 124:24–125:23.) Brady considered the behaviors that George was exhibiting at the time of his arrest to be a violation of his conditional release. (Id. at 121:24–122:1.)
78. According to Brady, George was “transported to the EBR Parish Jail on 7/29/13 secondary to aggressive and verbally threatening behaviors towards his peers.” (Pl.’s Trial Ex. 15 at TG000039.) He states that Vosburg, George’s “forensic consultant[,] recommended that he be brought to [ELMHS] for long-term treatment and evaluation services.” (Id.)
79. On July 29, 2013, the date of George’s arrest, Tubbs also “[c]alled Judge Moore[’s] section and they got my letter but no court date has been set as of today.” (Pl.’s Trial Ex. 19 at TG000206.) The letter Tubbs is referring to is presumably the June 10, 2013 letter sent to Judge Moore asking the Court to “set a review hearing to address his expiration date and violations.” (Pl.’s Trial Ex. 9 at 1.) For whatever reason, this information was not elicited from Tubbs during his testimony. As mentioned above, Tubbs’ June 10 request for a hearing was never responded to and Tubbs waited until August 12, 2013 to file a written motion to revoke George’s probation.
80. Plaintiff contends that his behavior at the time of his July 29, 2013 arrest was not substantially different than what he had displayed in the past and did not give probable cause for his arrest and confinement.
81. Defendants counter that his conduct, beginning in May 2013 and escalating up until the time of his arrest on July 29, 2013, was substantially worse and had not been resolved by the May and July hospitalizations. Thus, argue Defendants, George’s conduct gave Tubbs probable cause for his arrest.
82. Another main point of contention in the case revolves around why George was taken to EBRPP rather than ELMHS or, alternatively, to a private psychiatric facility as had been done many times in the past, including from July 15 to July 25, 2013.
83. Plaintiff argues that Tubbs and Brady were well aware that George had received treatment at a number of mental health facilities in the community over the years, including at Greenwell Springs, Cypress Hospital, Our Lady of the Lake Hospital, and Beacon Behavioral Health. (Doc. 151 at 15, ¶ 56) (citing Tubbs Test., Doc. 148 at 78–80, in globo.)

84. Further, argues Plaintiff, Tubbs and Brady were well aware of Mr. George’s need for psychiatric medication. (Doc. 151 at 14, ¶ 53.) As Tubbs testified:
Q. And you knew that the symptoms of Mr. George’s illness, like his hallucinations and aggressive behaviors, became worse when he missed his medication; isn’t that right?
A. Yes.
(Tubbs Test., Doc. 148 at 89:21–24; see also Brady Test., Doc. 148 at 100:20–101:25.)
85. Tubbs and Brady were also well aware that these hospitalizations were used to manage his behaviors and adjust his medication. (Doc. 151 at 14, ¶ 54.) Tubbs testified:
Q. And the purpose of those hospital stays was also to control Mr. George’s hallucinations; is that right?
A. Yes.
Q. And in your experience, if Mr. George missed even one or two doses of his medication, you believe that he wasn’t able to control the voices in his head?
A. It was pretty obvious, yes, when he got off his medicines.
(Tubbs Test., Doc. 148 at 69:20–70:2; Brady Test., Doc. 149 at 17:16–25.)
86. Plaintiff stresses that, at the time of George’s arrest, Tubbs and Brady were well aware that there was a direct relationship between the medication George was taking for his mental illness and the behavior that led to his arrest. (Doc. 151 at 14–15, ¶ 55) (citing Tubbs Test., Doc. 148 at 80–81, in globo, 89–90, in globo.)
87. Defendants reply that they tried to place George at ELMHS but there were simply no beds available at that time. (Brady Test., Doc. 148 at 122:4–18.)
88. Brady testified that, following his incarceration at EBRPP and up until his release on August 23, 2013, they continued to check on the availability of beds at ELMHS and “there [were] no beds available, otherwise we would have had him in the hospital.” (Brady Test., Doc. 148 at 127:21–22.)8
89. Neither Tubbs nor Brady checked to see if beds were available at another facility. (Tubbs Test., Doc. 148 at 86:13–24, 89:4–12; Brady Test., Doc. 148 at 123:6–11.)
90. Defendants offer several reasons for this. First, in

response to direct questioning of the Court outside the presence of the jury, both Tubbs and Brady testified that when a NGRI acquittee threatens violence, they believed they had only two choices: to admit him to ELMHS, if a bed was available, or place him in jail until a bed could be found there. (Tubbs Test., Doc. 149 at 208:18–211:5; Brady Test., Doc. 149 at 214:10–14.)
Q. So by your way of thinking, there were two choices: first ELMHS, if there was a bed available, but if not, your only other choice was the parish prison?
A. Correct. Until we could go in front of the judge and the judge could make a decision on what to do with him.
(Tubbs Test., Doc. 149 at 211:1–5.)
91. Furthermore, said Tubbs, “At that time when he’s threatening violence towards staff ... Jackson Hospital would be—in my opinion, would be the only place that could handle him at that point.” (Id. at 208:22–24.) Tubbs believed that George’s behavior was such that he needed more than a medication adjustment at this time. (Tubbs Test., Doc. 148 at 89:8–12.)
92. In addition, Tubbs testified that he didn’t consider another hospital for George because that hospital wouldn’t be able to transfer George to court “to address the violation of his conditions of probation.” (Tubbs Test., Doc. 148 at 87:5–88:18.)
93. Defendants also argue that, even if Tubbs or Brady had tried to get George admitted to a private hospital, it is unlikely they would have been successful “since nobody wants ELMHS’s patients, particularly those having forensic involvement, because they worry about their ability to manage them from a security standpoint.” (Doc. 152 at 7, ¶ 62) (citing Kelly Test., Doc. 149 at 75:3–8.)
94. As for transferring Mr. George to Central State Hospital, another state facility, Defendants contend it usually has a long waiting list since they have other referring facilities besides ELMHS and it takes a long time to get someone admitted there. (Id. at 7, ¶ 61) (citing Kelly Test., Doc. 149 at 74:18–24.)
95. Finally, Tubbs testified that, on arresting George, he contacted Lisa Burns, the social worker at EBRPP, and informed her that George was being arrested. Based on this discussion, it was his understanding that Burns would follow up and provide him with mental health treatment and medication management. (Id. at 4, ¶ 25) (citing Tubbs Test., Doc. 148 at 83:14–17.) This was also Brady’s belief. (Brady Test., Doc. 149 at 218:12–17.)

96. Plaintiff faults Tubbs and Brady for not checking on Plaintiff while in EBRPP. (Doc. 151 at 15, ¶ 60.) Defendants respond that Tubbs was not required to check on George after placing him in jail. (Doc. 152 at 4, ¶ 29) (citing Tubbs Test., Doc. 148 at 89:8–12.) Brady testified by the time he went to check on him, George had already been discharged. (Brady Test., Doc. 149 at 14:12–15:16.)
97. For reasons not explained in the record, Tubbs waited until August 12, 2013, 15 days after George had been incarcerated at EBRPP, before moving for revocation and requesting a hearing. (Pl.’s Trial Ex. 11; Defs.’s Trial Ex. 5; Tubbs Test., Doc. 148 at 77:24–78:8.)
98. It appears from the record that George was released after a hearing before Judge Moore on August 23, 2013, not in response to Tubbs’ motion but “only after the [George’s lawyer] filed a petition for habeas corpus on his behalf in the Nineteenth Judicial District Court of East Baton Rouge.” (Doc. 42 at 14, ¶ 57.) Defendants admit that, “[a]s a result of the [habeas corpus] hearing, Judge Chip Moore lifted the probation hold and ordered Mr. George to continue mental health treatment.” (Doc. 161 at 6.)
I. EVENTS FOLLOWING AUGUST 23, 2013 RELEASE FROM EBRPP
99. After his release of August 23, 2013, George was taken directly to Baton Rouge General Hospital and involuntarily committed. (Brady Test., Doc. 149 at 16:11– 14.)
100. At that time, he was grossly psychotic and off his medication. (Id. at 16:5–6.)
101. Plaintiff alleges that by the time George was released from the EBRPP on August 23, 2013, he had suffered a significant decline in his mental health and never fully recovered to his pre incarceration condition. (Martinez Test., Doc. 148 at 43:1–4, 44:1–18; Hope Test., Doc. 149 at 192:7–19; Smith Test., Doc. 149 at 37:11–17.)
102. Between the time of his discharge on August 23, 2013, and the events of July 1, 2014, the second incident sued upon, George was hospitalized on four occasions, three at private hospitals and finally back at ELMHS. (Brady Test., Doc. 149 at 16:11–18, 17:16–19, 18:1–23.)
J. TRUSSELL GEORGE’S DECEMBER 2013 TO

DECEMBER 2014 CONDITIONAL RELEASE
103. In December 2013, prior to the expiration of Mr. George’s five-year conditional release period, LDH’s District Forensic Coordinator, Brady, requested that George’s conditional release be extended an additional year. (Pl.’s Trial Ex. 12 at TG000015–16.)
104. On April 25, 2014, Vosburg did a comprehensive examination and review of prior records for purposes of a risk assessment. (Defs.’s Trial Ex. 8 at 0002.) In it, he concluded that “there is a high probability of noncompliance with treatment and remediation attempts without continuation of supervision under probationary requirements.” (Id. at 0010.)
105. On May 14, 2014, the Nineteenth Judicial District Court extended Mr. George’s conditional release to December 14, 2014. (Pl.’s Trial Ex. 24 at 4, No. 18.)
K. TRUSSELL GEORGE’S ARREST AND INCARCERATION IN 2014
106. Within a week after the May 14, 2014 hearing, Brady arranged for Mr. George to be involuntarily hospitalized at ELMHS. (Brady Test., Doc. 149 at 18:1– 21; Pl.’s Trial Ex. 13 at TG000017.)
107. According to Dr. Brad McConville, one of George’s treating psychiatrists at ELMHS, ELMHS has approximately 20 psychiatrists, five of whom are fulltime. They also have psychologists, full-time nursing staff, dieticians, occupational therapists, recreational therapists and social workers. (McConville Test., Doc. 149 at 155:1–16.)
108. During the summer of 2014, George was at the East Acute Unit (EAU) at ELMHS. At this time, psychiatrist Dr. Clay Kelly oversaw George’s care at ELMHS while George’s regular psychiatrist, Dr. Ahmad, was on vacation. (Kelly Test., Doc. 149 at 68:1–25.)
109. On June 3, 2014, Kelly issued an order to transfer George to the Cedarview unit, an “intermediate treatment unit in the civil division.” (Kelly Test., Doc. 149 at 68:20–69:3; Defs.’s Trial Ex. 9 at 1604.)
110. Cedarview was a “slightly less restrictive unit than East Acute Unit,” and Kelly thought that the transfer to the Cedarview unit was a reasonable step for George. (Kelly Test., Doc. 149 at 70:1–6.) According to Kelly, the whole nature of acute treatment is that, once patients are reasonably stabilized, they are moved to a less restrictive

environment. (Kelly Test., Doc. 149 at 72:11–14.)
111. Dr. Ahmad had wanted to transfer rather than release George because he did not believe that George was ready to be returned to a group home. (Kelly Test., Doc. 149 at 69:22–24.)
112. But when Dr. Kelly proposed this move to George on July 1, 2014, George refused to go. (Kelly Test., Doc. 149 at 69:4–72:18–24.)
113. Kelly asked Vosburg to come to the July 1, 2014, meeting with George to discuss moving him to the Cedarview unit and to help explain the plan to gradually step him down out of the acute unit to a less restrictive environment. (Kelly Test., Doc. 149 at 77:10–16.)
114. At the July 1, 2014 meeting, Vosburg informed George that he had the option of moving to a different unit within the ELMHS system but, if he refused the transfer, they could not force him to go the suggested unit. In that event, Vosburg told George, the next logical step would be to place him at the Forensics Unit at ELMHS. (Pl.’s Trial Ex. 13; Kelly Test., Doc. 149 at 79:2–20.)
115. Vosburg further informed George that, if he refused transfer to a different unit, there might not be a bed available at the Forensics unit. In that case, Mr. George would have to wait in jail until a bed became available. (Pl.’s Trial Ex. 13 at TG000017.)
116. George immediately resisted the proposed transfer. (Kelly Test., Doc. 149 at 79:13–17.) He became “very angry” (Pl.’s Trial Ex. 13 at TG000017), and even asked to be sent to jail because he did not want to go to the Cedarview unit. (Kelly Test., Doc. 149 at 78:13–15.) George started yelling at Drs. Kelly and Vosburg, using threatening language toward them. (Kelly Test., Doc. 149 at 79:21–24.)
117. Security guards were called to restrain George in the hallway while Vosburg was escorted off of the unit for his own protection. (Kelly Test., Doc. 149 at 80:1–6.)
118. Kelly contacted the probation officer assigned to George and asked him to remove George from the unit, although Kelly did not instruct the probation officer to take George to jail. (Kelly Test., Doc. 149 at 80:13–21.) Vosburg did recommend that George be incarcerated at EBRPP. (Pl.’s Trial Ex. 14.)
119. As a consequence of this confrontation, George was arrested and transported to EBRPP by a representative of the DPP for violating the terms of his conditional discharge. (Pl.’s Trial Ex. 13, 14.)

120. Brady was not present during the evaluation of George on July 1, 2014, and found out about the arrest from Vosburg after it had occurred. (Brady Test., Doc. 149 at 18:22–19:7.)
121. According to the Narrative Report created by Bobby Castello dated July 1, 2014, Castello “[r]eceived a call from Dr. Vosburg at the Feliciana Forensic Facility who told me subject... has been violent and disruptive and has not been taking his medicine. Dr. Vosburg wanted subject removed from the facility and brought before Judge Moore for revocation. Myself and Agent Hooge proceeded to ELMHS, arrested subject and transported him to the EBRPP without incident. Eric Brady, DFC, called and told me he would get a court date and let me know when it would be.” (Pl.’s Trial Ex. 19 at TG000204.) That court date did not occur until August 22, 2014. (See id. at TG000203.)
122. According to Brady’s Conditional Release Monthly Review Report of July 1, 2014, Brady stated he would “submit [an] episode report and set [a] motion order to court as well as contact probation officer to assist with transportation to jail.” (Pl.’s Trial Ex. 15 at TG000027.)
123. Kelly’s decision concerning George on July 1, 2014, was made in light of his history of charges of violence, his previous threatening behavior, and the difficulty George had managing his impulses and rage over the years. (Kelly Test., Doc. 149 at 86:18–22.)
124. Dr. Kelly was also concerned for the safety of the other patients should Mr. George remain on the unit. (Kelly Test., Doc. 149 at 87:7–15.)
125. McConville, another psychiatrist who had treated George, testified that George’s violent conduct on July 1, 2014, was not unique. “Other times, he was very influenced by his delusions, would attack staff members. He even got into an altercation, fell and broke his jaw, which had to be surgically repaired. He had incidents like that a lot.” (McConville Test., Doc. 149 at 164:22–25.)
126. At this point the Cedarview unit would not have accepted George because of his level of anger and rage. (Kelly Test., Doc. 149 at 81:5–7.)
127. Kelly testified he did not try to give George any acute treatment such as an injection because he felt George was choosing not to comply with his recommended treatment. (Kelly Test., Doc. 149 at 81:22– 82:11.)
128. The decision to remove George from ELMHS on July 1, 2014, was made by Vosburg and Kelly, although Brady did not disagree with that decision. (Brady Test.,

Doc. 149 at 19:22–20:6.)
129. According to Brady’s Episode Report, “I consulted with Dr. Vosburg on 7/1/14 after his evaluation with George. He recommended revoking his probation and having probation officer remove him from EAU and placing him in [EBRPP] where he remains at this time. Our office is requesting a revocation hearing to have his probation revoked and then transfer[ ] Mr. George back to the Forensic Hospital for longer-term treatment and hospitalization.” (Pl.’s Trial Ex. 14.)
130. On August 22, 2014, 52 days after he was incarcerated, George was taken to state court. At the conclusion of the hearing, “Judge Moore remanded subject back to the Forensic Facility and said he wanted a report from the doctors in a couple weeks and if subject was doing well he could be transferred back to the group home. If subject was not doing well he would continue to reside at the Forensic Facility for further treatment.” (Pl.’s Trial Ex. 19 at TG000203.)
131. Three days later, on August 25, 2014, George was released from EBRPP and placed back at ELMHS. (Pl.’s Trial Ex. 24 at 4, No. 19.)
132. George was not charged with any crime immediately prior to or during the 55 days he was incarcerated between July 1 and August 25, 2014. (Id. at 4, No. 20.)
133. At a hearing before state court Judge Richard “Chip” Moore on September 23, 2014, “[s]everal Doctors testified and patient was returned back to the hospital for treatment.” (Pl.’s Trial Ex. 1 at TG000024.) Judge Moore ordered George to remain at ELMHS and his placement reviewed at a hearing scheduled for December 11, 2014. (Pl.’s Trial Ex. 24 at 5, No. 21.)
FINDINGS OF FACT
134. In making its findings of fact and conclusions of law, the Court has considered the record as a whole. The Court has observed the demeanor of witnesses and has carefully weighed their testimony and credibility in determining the facts of this case and drawing conclusions from those facts. All findings of fact contained in this ruling that are more appropriately considered conclusions of law are to be so deemed. Likewise, any conclusions of law more appropriately considered a finding of fact shall be so classified.
135. It is important at the outset of these findings to emphasize that the only relevant factual questions are

those which inform the issues in this case:
a. Did Defendants have in place policies, practices, or procedures causing or allowing NGRI acquittees to be arrested and incarcerated at a correctional facility solely for a violation (or anticipated violation) of the conditions of the acquittee’s release, even when no crime had been committed?
b. Were George’s arrests or incarcerations made pursuant to this policy?
c. Even if there were no such policies, procedures or practices, under the specific facts of this case, did George’s arrests and subsequent incarcerations at a correctional facility, solely because of a violation of his conditions of release, in the absence of a criminal arrest, violate his substantive due process rights under the United States Constitution and/or his statutory rights under Section 504 and the ADA?
136. Thus, while the Court has considered and comments on other issues presented at trial, its conclusions and ruling are based only on those facts relevant to these issues.
A. JULY 29, 2013 ARREST AND INCARCERATION
137. At the time of the events sued upon, George was a person with a mental illness who had been found NGRI and was on conditional release subject to his abiding by the conditions set forth in a conditional release order of the Nineteenth Judicial District Court of the State of Louisiana. (Order, Pl.’s Trial Ex. 1 at TG000001.)
138. From the time of his conditional release in 2009 until May 2014, George resided primarily in group homes (known more technically as Intermediate Care Facilities for the Developmentally Disabled) but was occasionally admitted to private hospitals when his behavior and need for medication adjustment warranted. (Trial Stipulations, Pl.’s Trial Ex. 24, Trial Stipulation 4; Martinez Test., Trial Tr. vol. 1, Doc. 148 at 35:4–21.)
139. Despite being hospitalized in May 2013, George’s aggressive conduct escalated in frequency and severity during May and June. On May 24, 2013, Brady submitted an episode report to the state district court indicating that staff at Progressive Health Care had reported to him that George “had two episodes of verbal aggression and verbal threats within the last two (2) weeks to have one of his family members attack one of their direct care staff members.” (Pl.’s Trial Ex. 8 at 1; Defs.’ Trial Ex. 3 at 1.)

140. In this report, Brady also noted that, although George had been recently hospitalized for approximately two weeks at Beacon Behavioral Hospital in Lutcher, Louisiana, and had received a medication adjustment, “his behavior seemingly has escalated towards direct care personnel.” (Pl.’s Trial Ex. 8 at 1; Defs.’ Trial Ex. 3 at 1.)
141. Because of George’s escalating behavior, Tubbs wrote Judge Richard “Chip” Moore on June 10, 2013, to report his behavior and ask the court to “set a review hearing to address his expiration date and violations.” (Pl.’s Trial Ex. 9 at TG000011; Defs.’ Trial Ex. 4 at 0001; Tubbs Test., Doc. 148 at 75:1–9.) The Court never responded to this request. (Tubbs Test., Doc. 148 at 75:24–76:1.)
142. Because of continued aggressive behavior in July, George was hospitalized from July 15 until July 25, 2013. (Defs.’ Trial Ex. 5 at 1.) But despite this hospitalization, Brady felt George’s medication was not working and felt something “wasn’t right” and that “the medicine they adjusted wasn’t working for him.” (Brady Test., Doc. 148 at 80:4–9.)
143. This concern was vindicated when “[o]n July 27, 2013, [George] told staff that he was going to do something to them if they did not bring him to get his hair cut. Then [he] told another client he was going to kill them.” (Defs.’ Trial Ex. 5 at 1.) Tubbs was told by staff at the group home that George assaulted or physically harmed a staff member. (Tubbs Test., Doc. 148 at 79:2– 14.) Although not noted in his records, the Court accepts this testimony as credible.
144. While Tubbs testified that he arrested George even though George had committed no crime, (Tubbs Test., Doc. 148 at 82), the evidence shows that George’s behavior was arguably criminal. La. Rev. Stat. Ann. §§ 14:33, 35, 36, 38. Indeed, Tubbs himself classified George’s conduct as a “Level 3 violation—Misdemeanor activity (serious violent).” Tubbs continued, “[George] threatened staff and other clients with violence for the 3d [sic] time. The group home wanted him out due to his behavior.” Tubbs classified his response to George’s conduct as “Level 3 Action—Arrest/Detain with Custodial Treatment... Warrant/Motion and Order to Revoke.” (Pl.’s Trial Ex. 19 at TG000206–207.)
145. George’s conduct during these months reasonably led Defendants Tubbs, Brady, and Vosburg to believe they had probable cause to arrest George for the violation or imminent violation of his terms of conditional release, specifically, these two terms:
a. Any physically assaultive/aggressive behaviors shall be reported to the District Forensic Coordinator

or State Probation Officer. Violations of this condition may result in immediate return to custody or intensified treatment if recommended by the District Forensic Coordinator or Probation Officer. (Pl.’s Trial Ex. 1 at TG000002, ¶ K; see also Pl.’s Trial Ex. 24 at 1, No. 3.)
b. It shall be a condition of every such probation that the person released shall be recommitted if he becomes dangerous to others or to himself for reasons of his mental illness, substance abuse, or intellectual disability. La. Code. Crim. Proc. art. 658(A).
146. In accordance with the policies, practices and procedures of both LADPSC and LDH (Tubbs Test., Doc. 148 at 84:17–20), after consultation with Vosburg and Brady (Brady Test. Doc. 148 at 125:20–23), because they believed George had violated conditions of his release, (Brady Test., Doc. 148 at 121:24–122:1), and because they believed George presented a danger to himself and others, (Brady Test., Doc. 148 at 124:17–23), Tubbs effected George’s arrest on July 29, 2013.
147. However, despite the requirement of La. Code Crim. Proc. art. 658(B)(6) that the arrest of an acquittee be preceded by a motion of the court or District Attorney or probation officer, no such motion was filed, and no request was made to revoke George’s conditional release until August 12, 2013, 14 days after his arrest and incarceration, when Tubbs filed his “Detainer Notification, Affidavit of Probable Cause and Motion for Hearing to Revoke Probation.” (Defs.’ Trial Ex. 5 at 1–2; Pl.’s Trial Ex. 19 at TG000206.)
148. Despite the requirement of La. Code Crim. Proc. art. 658(B)(6) that a hearing take place “immediately” following the arrest to “consider the violations listed ...,” there is no evidence in the record that such a hearing ever took place following George’s July 29, 2013, arrest. The hearing which occurred on August 23, 2013 was a response, not to a motion or request by state actors, but to Plaintiff’s petition for habeas corpus.
149. And although a warrantless arrest is authorized by La. Code Crim. Proc. arts. 658(B)(1) and 899(B), there is no evidence in the record that the procedure required by these statutes was followed, i.e., that “a written report showing in what manner the defendant violated, or was about to violate, a condition of his probation” was “immediately” submitted. Rather, that report was not submitted until August 12, 2013. (Defs.’ Trial Ex. 5.)
150. The only evidence in the record regarding any contact with the court about George’s arrest on the day of his arrest shows that Tubbs “[c]alled Judge Moore[’s]

section and they got my letter [presumably, his letter of June 10, 2013] but no court date has been set as of today.” (Pl.’s Trial Ex. 19 at TG000206.)
151. While not found in record evidence, Plaintiff’s Second Amended Complaint alleges it was his counsel’s petition for habeas corpus that effected George’s August 23, 2013, release. (Second Amended Complaint, Doc. 42 at 14, ¶ 57.) Defendants agree George’s attorney filed a petition for habeas corpus “which appears to have been filed the same day as the hearing. As a result of the hearing, Judge Chip Moore lifted the probation hold and ordered Mr. George to continue mental health treatment.” (Doc. 161 at 6.)
152. Hope’s testimony shows that there was a court hearing on that day where she talked to the judge, “I guess off-the-record ....” (Hope Test., Doc. 149 at 192–93.)
153. Initially, Vosburg, Brady and Tubbs intended that, following his arrest, George be admitted to ELMHS. However, after inquiring, Brady was told that there was no bed available there. (Tubbs Test., Doc. 148 at 86:13– 24; Brady Test., Doc. 148 at 122:4–127:23.) Brady also testified, and the Court accepts this testimony as true, that during the entire period of George’s 2013 incarceration, Brady continued to inquire as to the availability of a bed at ELMHS but was told each time that there was none. (Brady Test., Doc. 148 at 127:1–22.)
154. Tubbs testified that he did not attempt to get George admitted to a private hospital because he felt he could not do so without an order of the Court. (Tubbs Test., Doc. 149 at 208:2–211:5.) Unexplained in the record is how he was able to admit George to private hospitals, seemingly without a court order, on numerous previous occasions, including in May and June 2013 and on August 23, 2013, when George was released from EBRPP and immediately admitted to Baton Rouge General Hospital.
155. Tubbs also said that he did not try to get George into a private hospital because, given the level of George’s aggressive conduct, ELMHS was the only facility that could handle Plaintiff at that time. (Tubbs Test., Doc. 149 at 208:2–24.) However, this seems to be belied by Brady’s Episode Report of March 2010 to Judge Moore that, following similar conduct in May–July 2013,9 George was not placed in ELMHS nor was he arrested and incarcerated. Rather, “[t]hey were able to transport him to Our Lady of the Lake Hospital for emergency evaluation. He was later transferred to Cypress Hospital for inpatient acute psychiatric hospitalization where he remains at this time.” (Pl.’s Trial Ex. 5.) Furthermore, Brady and Tubbs were able to have George admitted to private hospitals in both May and July 2015, and, indeed on August 23, 2013, although his conduct during that time

was similar to that which provoked his arrest and incarceration.
156. Tubbs stated in his deposition that he didn’t try to get George into a private hospital because such a hospital could not transport him to court “to address the violations of his conditions of probation.” (Tubbs Test., Doc. 148 at 87:19–88:14.) This assertion seems disingenuous at best since there is no evidence to suggest that LDPSC could not have arranged for such transportation (Id. at 88:15– 18) and, furthermore, Tubbs waited 14 days before moving the court for a hearing.
157. In view of the many occasions in which Brady and Tubbs had been able to place George in a private facility, Tubbs’ statement that such a facility would not likely have taken George because of concerns about their “ability to manage [him] from... a security standpoint” (Kelly Test., Doc. 149 at 75:6–8; see also Tubbs Test., Doc. 149 at 208:2–24) is likewise suspect.
158. On the other hand, Plaintiff offered no direct evidence that if Tubbs and Brady had tried to place George in a private or other state hospital on July 29, 2013, they would have been successful.
B. ADEQUACY OF MEDICAL CARE AT EBRPP
159. The Court finds that while EBRPP provided some medical and psychiatric care for George (See, e.g. Burns Test., Doc. 149 at 106:13–25), this care was not comparable with the care he would have received at ELMHS or a private hospital.
160. Indeed, there are important differences between the care available there and that available at ELMHS.
161. When George entered EBRPP, he was not allowed to bring his medicines with him and new medicines needed to be ordered. This resulted in George being without his medicines from around July 31 until August 10, 2013. (Burns Test., Doc. 149 at 112:8–115:16, 119:1–18.)10
162. Furthermore, jails cannot force inmates to take medications. (Brady Test., Doc. 149 at 15:20–24.) By contrast, ELMHS is “a psychiatric hospital with the ability to force medications on its patients.” (Id. at 19:8– 10.)
163. This resulted, for instance, in George receiving only a percentage of his medications while in EBRPP. Specifically, George received his Zantac only 46% of the time in the morning and 88% at night (Burns Test., Doc.

149 at 115:4–16); Depakote (a mood stabilizer) 8% in the morning and 76% at night (Id. at 124:7–13); Cogentin (to treat side effects of anti-psychotic drugs), 8% in the morning and 67% at night (Id. at 124:16–125:1); and Clonazepam (an anti-anxiety drug) 4% in the morning and 29 % at night. (Id. at 125:2–7.)
164. Furthermore, there were many services available at ELMHS not available at EBRPP. Kelly testified that these services included, for instance, treatment track groups (probably a focus track) led by social workers. (Kelly Test., Doc. 149 at 103:1–21.)
165. While in EBRPP, George was relegated to solitary confinement for his own safety. (Brady Test., Doc. 149 at 14:5–11, 20:21–21:1–7.) ELMHS staff, on the other hand, would have given George “as much freedom as possible,” and he would have been allowed to interact with the 20 other patients on the unit. (McConville Test., Doc. 149 at 163:11–164:13.)
166. The Court finds that Plaintiff’s condition worsened during his stay at EBRPP. While there was some evidence that his condition was made permanently worse, the Court finds it unnecessary to decide this issue since Plaintiff’s claims for damages were dismissed.
167. As to Plaintiff’s claims under the ADA and Section 504, the jury found that Defendants had not discriminated against George based on his disabilities or failed to provide him with a reasonable modification appropriate for his disabilities. (Doc. 144 at 1–2.) As is discussed in the Conclusions of Law section, under the standard the Court is bound to apply in evaluating these jury findings, the Court concludes that there was no error in either finding.
C. JULY 2014 ARREST AND INCARCERATION
168. At the time of George’s July 1, 2014, arrest, he was in the Acute Unit ward at ELMHS.
169. Ironically, the dispute arose as George’s psychiatrist (Kelly) and psychologist (Vosburg) were attempting to convince George to allow him to be transferred to a less restrictive unit.
170. The Court finds that Kelly and Vosburg, both trained, knowledgeable and experienced with psychiatric patients generally, and with George specifically, reasonably felt physically threatened by George. Kelly described the situation as follows:

They had to restrain him in the hallway and because of the threats he was yelling at Dr. Vosburg in particular, we—we—I talked to one of the CGTS to escort Dr. Vosburg off the unit for his own protection. And at that point, I didn’t feel it was safe to leave Mr. George on our unit because I wasn’t just concerned about Dr. Vosburg, I was concerned about my other civil patients on the unit that could be endangered by his, you know, behavior.
(Kelly Test., Doc. 149 at 80:2–11.)
171. George’s probation officer was called and, although it was that officer’s decision to take him to jail, Dr. Kelly stated that he could be moved into the Forensic Division if he had had a bed but he told the officer “I doubted [ ] if they did.” (Kelly Test., Doc. 149 at 80:23–24.)
172. It appears that the probation officers who made this arrest were agents Bobby Castello and “Hooge,” not Defendants Tubbs or Brady. (Pl.’s Trial Ex. 19 at TG000204; Brady Test., Doc. 149 at 18:22–19:7.) Plaintiff has not challenged the conduct of Castello and Hooge.
173. The Court finds that there was reasonable and probable cause to believe that an emergency existed such that awaiting a court order to arrest George would have created an undue risk to Kelly, Vosburg and other ELMHS staff and patients and to George himself.
174. Under the circumstances, transfer of George to a private hospital was unnecessary, impractical and unwise.
175. However, for reasons unclear in the record, no one notified the court about George’s arrest and incarceration or filed a written report or sought a hearing before the court to assess George’s status until August 19, 2014. (Pl.’s Trial Ex. 19 at TG000203.)
176. It wasn’t until August 22, 2014, that a hearing was held and on August 25, 2014, that George was finally released back to ELMHS, 55 days after his arrest. (Id.) While Kelly testified he “doubted” there were any beds in the Forensic Unit on the date George was arrested (Kelly Test., Doc. 149 at 80:23–24), the record is unclear when a bed became available.

D. POLICY, PROCEDURE OR PRACTICE, VEL NON
177. Plaintiff correctly maintains (Pl.’s Request for Findings of Fact and Rulings of Law, Doc. 151 at 11, ¶ 43) that the decision to arrest and incarcerate NGRI acquittees is generally made jointly by employees of Defendants LDPSC and LDH. (Tubbs Test., Doc. 148 at 83:22–84:20; Brady Test., Doc. 148 at 93:20–94:8.)
178. But Plaintiff goes further, insisting that Defendants had a “practice and policy ... to arrest and incarcerate individuals on conditional discharge who have violated a term of their conditional release.” (Pl.’s Request for Findings of Fact and Rulings of Law, Doc. 151 at 10, ¶ 40) (citing Tubbs Test., Doc. 148 at 84:11 – 84:20.)
179. In support of its argument that such arrests are part of a policy, procedure and practice, Plaintiff points the Court (Pl.’s Request for Findings of Fact and Rulings of Law, Doc. 151 at 10, ¶ 40) to the testimony of Defendant Tubbs, where he states that “over the years, [he] moved to revoke somewhere around 12 to 18 of the Not Guilty By Reason of Insanity folks that [he] supervise[s]” and that, of those, most of them were taken to the New Orleans Parish Prison. (Tubbs Test., Doc. 148 at 84:21 – 85:3 (emphasis added).)
180. First, the Court notes that, in these other instances, unlike the two incidents complained of, there was a motion to revoke the probation of the acquittee and, indeed, the conditional discharges had been revoked. (Tubbs Test., Doc. 148 at 85:20–25.)
181. In addition, Plaintiff offered no proof as to the specifics of the other arrests and incarcerations, including whether the acquittees had committed a crime and, if not, the seriousness of the conduct that provoked the arrest and whether it involved physically aggressive and assaultive behavior or a danger to the acquittee or others. In these important respects, Plaintiff has failed to prove any policy, practice or procedure.11
182. Plaintiff did establish that George’s July 29, 2013, arrest was “in accordance with [LDPSC] departmental policy.” (Tubbs Test., Doc. 148 at 84:17–20.) But the parameters of that policy were not established, and the Court is left to conclude that the policy involved the arrest and incarceration not, as Plaintiff contends, of any NGRI acquittee solely because he has violated any condition of release.
183. Rather, if the policy, practice, and procedure mirrors the circumstances of George’s arrest and initial incarceration, and the Court so finds, then it allowed for the arrest and incarceration of an NGRI acquittee who has

violated conditions of release prohibiting him from engaging in physically assaultive and aggressive behavior and presenting a danger to himself and others.
184. The Court also notes that the arrest and incarceration of July 1, 2014, is, in some respects, different than the July 29, 2013, arrest. The former involved aggressive behavior and an arrest at a group home. The latter occurred at ELMHS.
185. As is discussed infra, the Court is troubled by the evidence indicating that, in one instance, George was jailed for 25 days until his lawyer got him released pursuant to a habeas corpus petition and, in the other, 52 days before a hearing and a total of 55 days before he was released back to ELMHS. But Plaintiff has made clear that “issues of length of incarceration before release [and] length of incarceration without or before a hearing” are not before the Court. (Doc. 163; see also Doc. 42 at 2; 6, ¶¶ 14–17; 9, ¶ 30; and 23–24, ¶¶ 87–94.) But even if the length of George’s stay was an issue before the Court, these two instances do not prove a policy, procedure, or practice.
186. The Court is similarly troubled by the medical care George received at EBRPP which was incontestably inferior to that he would have received at ELMHS and appears to have done serious harm to George’s psychiatric condition. However, for similar reasons, this is not before the Court and, in any event, was not proven to be part of a policy, practice, or procedure of the Defendants.
E. DISCRETE SUBSTANTIVE DUE PROCESS VIOLATIONS TO GEORGE, VEL NON
187. In addition to Plaintiff’s complaints about Defendants’ policies, procedures, and practices, Plaintiff claims “Defendants’ actions ... which caused Plaintiff to be confined in a correctional facility for the sole reason that he is alleged to have violated a condition of his release, violate his rights under the Due Process Clause to the United States Constitution.” (Doc. 42 at 19, ¶ 93.)
188. This substantive due process claim also challenges his arrest and incarceration for the “sole reason that he has violated a condition of his release,” (id.) without regard to the length or circumstances of his extended incarceration or the quality of the medical care received there. (Doc. 163.)
189. In this regard, the Court finds that, on both occasions, George was arrested and removed from the group home because his aggressive behavior violated the

terms of his conditions of release in that he was “physically assaultive and aggressive” and posed a danger to others. George’s first incarceration at EBRPP was because Brady could not find a bed for him at ELMHS. His second, by non-Defendant agents, was presumably for a similar reason, i.e., there were no beds in the Forensic Unit where George otherwise would have been placed.
190. As with the Court’s previous finding regarding Plaintiff’s charge of an unconditional policy, practice or procedure, the Court finds that George’s arrest was not for his violation of “any” condition of his release but, importantly, because his behavior presented a danger to others.
191. The Court finds that Tubbs, Brady and Vosburg had reasonable and probable cause to believe that, for this reason, George had violated and was likely to continue to violate those specific conditions of his release.
CONCLUSIONS OF LAW
A. JURISDICTION AND VENUE
192. George is properly represented in this matter by his niece and guardian ad litem, Letetica Walker, pursuant to Federal Rules of Civil Procedure 17(b)(1) and 17(c)(2) and the laws of Louisiana governing competency. (Memo. in Support of Mot. to Appoint Guardian ad Litem, Doc. 58–1, in globo; Order Granting Motion, Doc. 63, in globo.)
193. Both are residents of Louisiana. Plaintiff is suing Defendants for claims arising under the Fourteenth Amendment to the United States Constitution; 42 U.S.C. § 1983; Section 504, 29 U.S.C. § 794(a); and Title II of the ADA, 42 U.S.C. § 12132. Defendants are state agencies and their officers. Thus, this Court’s subject matter jurisdiction is proper under 28 U.S.C. §§ 1331 and 1343.
194. George is seeking declaratory relief pursuant to 28 U.S.C. § 2202 and prospective injunctive relief pursuant to Rule 65 of the Federal Rules of Civil Procedure.
195. Venue in the Middle District of Louisiana is proper under 28 U.S.C. § 1391(b)(1) and (2).
196. George’s claims for declaratory and injunctive relief are justiciable under Article III of the Constitution since they allege facts which raise the issue of whether the alleged violations of George’s due process rights are

“capable of repetition, yet evading review.” Catholic Leadership Coal. Of Texas v. Reisman, 764 F.3d 409, 422 (5th Cir. 2014); Moore v. Hosemann, 591 F.3d 741, 744 (5th Cir. 2009); Cooper v. Kliebert, 2014 WL 7334911 at *4 (M.D. La. Dec. 19, 2014).
B. PARTIES
197. Plaintiff’s constitutional claims for prospective relief are against state agencies and individuals sued in their official capacities only. (Docs. 129 and 138; Tr. Transcript, Doc. 148 at 26:19–27:17.) These claims are therefore not barred by the state’s sovereign immunity. Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Cox v. City of Dallas, 256 F.3d 281, 307–09 (5th Cir. 2001); Cooper, 2014 WL 7334911 at *2.
C. ISSUES BEFORE THE COURT
198. As the Court has stated twice previously, following Plaintiff’s dismissal of his Section 1983 damages claims and the Court’s ruling on Plaintiff’s facial constitutional challenge to La. Code Crim. Proc. arts. 658 and 899 (Doc. 124 at 3, 22–26), the constitutional issues in this action are narrowly limited to whether George’s arrest and subsequent incarceration for violations of his release, in the absence of a criminal arrest, violated his constitutional right to due process.
D. STATUTORY RIGHTS OF THOSE FOUND NOT GUILTY BY REASON OF INSANITY
199. Louisiana Revised Statute 14:14 states that an individual charged with a criminal offense is exempt from criminal responsibility for his behavior, and is thus not guilty by reason of insanity, when “the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question.”
200. Louisiana Revised Statute 28:2(20) defines a mentally ill person as “any person with a psychiatric disorder which has substantial adverse effects on his ability to function and who requires care and treatment.”
201. The statutory structure under which George was twice arrested and detained is found in La. Code Crim.

Proc. arts. 654–658 and 899. A summary of those articles pertinent to the issues before the Court follows.

202. La. Code Crim. Proc. art. 654 provides that if the defendant is found NGRI in a non-capital case, the court shall remand him to the parish jail or to a private mental institution approved by the court and “promptly hold a contradictory hearing” to determine whether he is a danger to himself or others and therefore whether he can be released, with or without conditions, or must remain committed in the mental institution.

203. Specifically, art. 654 provides, in pertinent part: “If the court determines that the defendant can be discharged or released on probation without danger to others or to himself, the court shall either order his discharge, or order his release on probation subject to specified conditions for a fixed or an indeterminate period.”

204. Louisiana Revised Statute 28:2(6) defines “dangerous to others” as “the condition of a person whose behavior or significant threats support a reasonable expectation that there is a substantial risk that he will inflict physical harm upon another person in the near future.” Louisiana Revised Statute 28:2(7) defines “dangerous to self” as “the condition of a person whose behavior, significant threats or inaction supports a reasonable expectation that there is a substantial risk that he will inflict physical or severe emotional harm upon his own person.”

205. In ordering a conditional release from a mental health facility, the court “shall subject a conditionally released insanity acquittee to such orders and conditions it deems will best meet the acquittee’s need for treatment, supervision, and monitoring and will best serve the interests of justice and society.” La. Code Crim. Proc. art. 657.1(B).

206. The acquittee on probation (also known as the “probationer”) “shall be under the supervision of the division of probation and parole.” La. Code Crim. Proc. art 658(B)(1).

207. In this case, George was released on specified conditions, which were in place at the time of both arrests and detentions in the EBRPP. Especially important in this case is the following condition:

Any

physically

assaultive/aggressive behaviors

shall be reported to the District

Forensic Coordinator or State

Probation Officer. Violations of

this condition may result in

immediate return to custody or

intensified

treatment

if

recommended by the District

Forensic Coordinator and State

Probation Officer.

(Pl.’s Trial Ex. 1 at TG000002.)

208. In addition to whatever specific conditions are placed by the court, “[i]t shall be a condition of every such probation that the person released shall be recommitted if he becomes dangerous to others or to himself for reasons of mental illness ... ” La. Code Crim. Proc. art. 658(A) (emphasis added).

209. Also of importance in this case is the following provision: “When the probationer violates or is about to violate the conditions of his probation, he may be arrested and detained in conformity with the applicable provisions of Article 899 of this Code.” La. Code Crim. Proc. art. 658(B)(1).12

210. La. Code Crim. Proc. art. 899(B) states, in pertinent part: “If a probation officer has reasonable cause to believe that a [probationer] has violated or is about to violate a condition of his probation or that an emergency exists so that awaiting an order of the court would create an undue risk to the public or the probationer, the probation officer may arrest the [probationer] without a warrant .... The probation officer shall immediately notify the proper court of the arrest and shall submit a written report showing what manner the [probationer] violated, or was about to violate, a condition of his probation.”

211. La. Code Crim. Proc. art. 899(E) provides, in pertinent part: “Within ten days following the arrest of [a probationer] pursuant to the provisions of this Article, the Court shall determine if there is probable cause to detain him pending a final violation hearing ... ”

212. Presumably designed to work in conjunction with art. 658(B)(1), La. Code Crim. Proc. art. 658(B)(5) provides:

The division of probation and parole or the Louisiana Department of Health through the conditional release program coordinator or a designee shall immediately notify the court of any substantive violations or imminent violations of the conditions of the person’s probated release and shall present recommendations to the court regarding whether the court should revoke the probation and recommit the probationer to a state mental

institution

or

other

recommendations as may be

appropriate.

213. Upon receiving the report recommending revocation or other disposition, the court may, on its own motion or that of the District Attorney or probation officer, “cause the person to be arrested, if he is not already in custody, and shall immediately hold a hearing to consider the violations listed ... ” La. Code Crim. Proc. art. 658(B)(6).
214. If the court determines that there has been a violation of a term of the conditional release or that the acquittee was about to violate the conditions of release, it may do any of the following:
(1) Reprimand and warn the probationer;
(2) Order that supervision be intensified;
(3) Modify or add additional conditions to the probation;
(4) Revoke the probation and recommit the probationer to a state mental institution, subject to consideration for discharge or release on probation only after one year has elapsed from the date of revocation and in accordance with the procedure prescribed in Articles 655 through 657 for a first application and hearing.
La. Code Crim. Proc. art. 658(C).
215. Although art. 658(C) does not list as one of its options the arrest and incarceration of the acquittee, art. 658(B)(1) specifically authorizes the arrest and detention of the probationer/acquittee in conformity with art. 899 “[w]hen the probationer violates or is about to violate the conditions of his probation.” Art. 899, as mentioned above, authorizes the arrest of a probationer without a warrant if the probation officer “has reasonable cause to believe that a [probationer] has violated or is about to violate a condition of his probation.”
216. Louisiana’s statutory scheme also envisions a situation where (without mention of a violation or imminent violation of conditions of release), the probationer/acquittee “is in need of acute, i.e. short term, hospitalization and is not charged with a new criminal offense ...” La. Code Crim. Proc. art. 658(B)(4). In such a circumstance, he “may be voluntarily admitted pursuant to R.S. 28:52 or admitted by emergency certificate pursuant to R.S. 28:53 to the Feleciana Forensic Facility or to another suitable treatment facility, with subsequent notice to the court.”

217. While Plaintiff argues that this provision could have been utilized where the probationer/acquittee violated or was about to violate his terms of supervised released (P Brief, Doc. 151, ¶ 128), the provision does not explicitly state this.
E. SUBSTANTIVE DUE PROCESS RIGHTS OF NGRI ACQUITTEES AND STANDARD FOR APPLYING THEM
[1]218. In addition to its procedural protections, the Due Process Clause of the Fourteenth Amendment “contains a substantive component that bars certain arbitrary, wrongful government actions” that deprive a person of life, liberty, or property “ ‘regardless of the fairness of the procedures used to implement them.’ ” Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992) (quoting Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990)).
[2]219. Among the liberty interests protected by this substantive portion of the Due Process Clause are certain fundamental rights such as the freedom from confinement or bodily restraint, which “has always been at the core of the liberty protected by the Due Process Clause from arbitrary action.” Id.
[3]220. A finding of NGRI means that the defense has proven by a preponderance of the evidence that the defendant was insane at the time the acts were committed and thus cannot be punished for such acts. Jones v. United States, 463 U.S. 354, 369, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983).
[4]221. On the other hand, this does not mean that the NGRI acquittee is free to resume his life unfettered by any restrictions. Society has an interest in insuring that an insanity acquittee poses no danger to himself or the public. Id. at 368, 103 S.Ct. 3043.
[5]222. “[T]he governing legal principle derived from Foucha and Jones is that a state may continue to confine an insanity acquittee only as long as the acquittee is both mentally ill and dangerous.” Poree v. Collins, 866 F.3d 235, 248 (5th Cir. 2017) (citing Jones, 463 U.S. at 368– 70, 103 S.Ct. 3043; Foucha, 504 U.S. at 77–78, 112 S.Ct. 1780).
[6]223. Stated another way, “[t]ogether, Jones and Foucha establish that the state must prove two conditions to justify continued confinement of an NGRI acquittee: mental illness and dangerousness.” Id.

224. Regardless of the purpose of confinement, however, the Supreme Court has repeatedly recognized that “commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.” Jones, 463 U.S. at 361, 103 S.Ct. 3043. See also Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979); Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972); Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972); Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967).
[7]225. In the case of an NGRI acquittee, constitutionally permissible purposes for confinement include treating the mental illness and protecting the acquittee and society from his potential dangerousness. Jones, 463 U.S. at 368, 103 S.Ct. 3043 (emphasis added).
226. While “the Supreme Court has not provided any yardstick for determining what probability of danger is sufficient [to satisfy the substantive due process standard for confinement] and that which falls short[,]” Poree, 866 F.3d at 249, the Fifth Circuit has approved of a Louisiana state court’s continued confinement of an NGRI acquittee based on his “potential for both danger to himself and others,” coupled with a finding of his mental illness, holding such confinement was not contrary to clearly established federal law. Id. at 249–251.13
227. In delineating the boundaries of the Fourteenth Amendment’s due process protections for NGRI acquittees, courts have often looked to the protections given to individuals who have been civilly committed or to pretrial detainees. See e.g., Poree, 866 F.3d at 244–245 & n.31. (also observing that Louisiana’s statutory scheme “likens conditional release [of an NGRI acquittee] to probation.”). And there is reason for this favorable comparison since an NGRI acquittee, like a pretrial detainee or one civilly committed, has not been found legally responsible for the commission of a crime.
228. But there are important differences too. As stated by the District Court’s decision in Poree:
The Supreme Court has also recognized that different considerations underlie the commitment of insanity acquittees, holding that “insanity acquittees constitute a special class that should be treated differently from other candidates for commitment.” Jones, 463 U.S. [at] 370 [103 S.Ct. 3043]. For example, “the fact that a person has been found, beyond a reasonable doubt, to have committed a criminal act certainly indicates dangerousness.” Id. at 364 [103 S.Ct. 3043] (citing Lynch v. Overholser, 369 U.S. 705, 714 [82 S.Ct. 1063, 8 L.Ed.2d 211] (1962) (that the accused was found to have committed a criminal act is “strong evidence that

his continued liberty could imperil ‘the preservation of the peace’ ”). The Court has also indicated that concrete evidence that an individual committed a crime is “at least as persuasive as any predictions about dangerousness that might be made in a civilcommitment proceeding.” Jones, 463 U.S. at 364–65 [103 S.Ct. 3043].
Additionally, the U.S. Fifth Circuit has indicated that, although insanity acquittees are entitled to substantially the same procedural protections afforded civil committees, insanity acquittees can be viewed differently when being considered for release since the “prior antisocial conduct of an insanity acquittee justifies treating such a person differently ...” Powell v. Florida, 579 F.2d 324, 333 (5th Cir. 1978). See also, Warren v. Harvey, 632 F.2d 925, 931 (2nd Cir. 1980) (that insanity acquittees have been found, beyond a reasonable doubt, to have committed a criminal act indicates they have “proved themselves a danger to society at one time”).
Poree v. Kollins, 2014 WL 346081 at *8 (E.D. La. Jan. 29, 2014), aff’d. 866 F.3d 235 (5th Cir. 2017).
229. On the issue of the legal standard by which to measure the alleged due process breach in this case, Plaintiff argues that “[t]he closest analogue to the liberty interests of NGRI acquittees arises in the civil commitment context.” (Doc. 151, ¶ 133) (citing Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (finding a liberty interest in adequate medical care and treatment for the intellectually disabled); Savidge v. Fincannon, 836 F.2d 898 (5th Cir. 1988) (tracing the constitutional right to treatment); Welsch v. Likins, 373 F.Supp. 487, 491–500 (D. Minn. 1974), supplemented, 68 F.R.D. 589 (D. Minn. 1975), aff’d, 525 F.2d 987 (8th Cir. 1975)).
230. As such, argues Plaintiff, the standard of review for violations of the substantive due process rights of NGRI acquittees is distinct from the “deliberate indifference” standard that the Supreme Court has applied to certain government actions. (P Brief, Doc. 151, ¶ 145.) Rather, the proper test involves balancing the individual’s liberty interests against the legitimate interests of the state. (Doc. 151, ¶¶ 147, 149) (citing Youngberg, 457 U.S. at 324, 102 S.Ct. 2452; Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004)).
231. Plaintiff contends that, to properly apply the Youngberg balancing test, this Court should use a “leastrestrictive-means analysis” as was used by the Eleventh Circuit in Lynch v. Baxley, 744 F.2d 1452 (11th Cir. 1984), which ruled that, while state and local governments had a compelling interest in safety of the

individual and society, they must confine those awaiting civil commitments in the least restrictive setting, i.e., in a public or private hospital instead of county jails. (Doc. 151, ¶¶ 132, 148) (citing Lynch, 744 F.2d at 1457–61).
232. Plaintiff points to the Ninth Circuit’s decision in Jones v. Blanas for the proposition that “[w]ith respect to an individual confined awaiting adjudication under civil process, a presumption of punitive conditions arises where the individual is detained under conditions identical to, similar to, or more restrictive than those under which pretrial criminal detainees are held, or where the individual is detained under conditions more restrictive than those he or she would face upon commitment.” (P Brief, Doc. 151, ¶ 150) (citing Jones, 393 F.3d at 934).
233. Plaintiff also urges the Court to look to similar due process considerations which arise in the criminal context during incompetency proceedings, citing Or. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1121–22 (9th Cir. 2003) (“[h]olding incapacitated criminal defendants in jail for weeks or months violates their due process rights because the nature and duration of their incarceration bears no reasonable relation to the evaluative and restorative purposes for which courts commit those individuals”); Trueblood v. Wash. State Dep’t of Social and Health Svcs., 101 F.Supp.3d 1010 (W.D. Wash. 2015), rev’d on other grounds, 822 F.3d 1037 (9th Cir. 2016); and Terry ex rel. Terry v. Hill, 232 F.Supp.2d 934 (E.D. Ark. 2002). In these cases, argues Plaintiff, pretrial detainees awaiting competency restoration services have a liberty interest in proper mental health treatment to restore their competency. (P Brief, Doc. 151, ¶ 135.)
234. In these cases, courts have held state actors to a higher standard than a mere general “deliberate indifference” standard, instead conducting a balancing test between an incompetent detainee’s liberty interests in freedom and restorative treatment versus the interests of the state. See Jackson, 406 U.S. at 738, 92 S.Ct. 1845 (balancing nature and duration of confinement with care and treatment); Mink, 322 F.3d at 1121 n.11 (declining to rely solely on a deliberate indifference standard and instead balancing incompetent detainees’ liberty interests in freedom and restorative treatment against state interests because “substantive due process may demand more than a lack of deliberate indifference”); Terry, 232 F.Supp.2d at 943–44 (balancing state interests against incompetent pretrial detainees’ interests in treatment and freedom and noting, in the alternative, that the failure to provide restorative treatment was deliberate indifference by the state agency).
235. But even if this Court should use the deliberate indifference standard, Plaintiff urges the Court in the

alternative to apply an objective standard in doing so, citing Kingsley v. Hendrickson, ––– U.S. ––––, 135 S.Ct. 2466, 192 L.Ed.2d 416 (2015). And while Kingsley did not hold this objective standard applicable to all substantive due process claims, Plaintiff asks this Court alternatively to adopt the Kingsley standard in this case, citing the Ninth Circuit’s decision in Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc), which expanded the Kingsley standard to include failureto-provide-medical-care claims and suggested that the standard should also be applied to other substantive due process confinement claims. (Doc. 151, ¶ 158.)
236. Defendants have not provided the Court with their position regarding the applicable standard by which to measure a due process violation, arguing only that there is limited due process protection for a probationer in the revocation process. (D Brief, Doc. 152, ¶ 93) (citing Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998)).
237. In this regard, Defendants point the Court to the following excerpt from Griffin v. Wisconsin, 483 U.S. 868, 874, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987): “[I]t is always true of probationers (as we have said it to be true of parolees) that they do not enjoy the absolute liberty to which every citizen is entitled, but only ... conditional liberty properly dependent on observance of special [probation] restrictions.” (internal quotation marks omitted). (Doc. 152, ¶ 95.)
238. Rather, Defendants focus their argument on George’s arrest, contending it was statutorily permitted and constitutional. (Doc. 152, ¶¶ 96–100.) Defendants do not address the broader issue of the legal basis justifying their failure to place (and replace) George in ELMHS or his prolonged stays in EBRPP without a hearing.14
[8]239. In deciding the proper standard to apply, the Court starts with the foundational proposition that the Fourteenth Amendment’s substantive due process guarantee protects citizens from arbitrary, abusive, or oppressive use of governmental power. Daniels v. Williams, 474 U.S. 327, 332, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986).
240. In assessing whether a confinement violates the specific substantive due process rights of NGRI acquittees, the Supreme Court has held that “[d]ue process requires that the nature of the commitment bear some reasonable relation to the purpose for which the individual is committed.” Foucha, 504 U.S. at 79, 112 S.Ct. 1780 (citing Jones, 463 U.S. at 368, 103 S.Ct. 3043;

Jackson, 406 U.S. at 738, 92 S.Ct. 1845).
241. This test is essentially identical to the substantive due process standard previously set by the Supreme Court in Youngberg for mentally retarded persons involuntarily committed: “In determining whether a substantive right protected by the Due Process Clause has been violated, it is necessary to balance ‘the liberty of the individual’ and ‘the demands of an organized society.’ ” Youngberg, 457 U.S. at 320, 102 S.Ct. 2452 (quoting Poe v. Ullman, 367 U.S 497, 542, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961) (Harlan, J. dissenting)). Indeed, the Fifth Circuit has likened the substantive due process rights of one mentally ill who has been civilly committed to those of an NGRI acquittee. See Poree, 866 F.3d at 244–245.
242. As discussed in Youngberg and numerous subsequent cases, a court generally evaluates substantive due process challenges by pretrial detainees as follows:
[I]f a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to ‘punishment.’ Conversely, if a restriction or condition is not reasonably related to a legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.
See, e.g., Estate of Henson v. Wichita Cty., 795 F.3d 456, 467 (5th Cir. 2015)(citing Bell v. Wolfish, 441 U.S. 520, 539, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)).
243. The Court therefore believes Youngberg and its progeny are particularly instructive in evaluating the substantive due process issues in this case.
244. Youngberg held that “adequate food, shelter, clothing and medical care” are “essentials of the care that the State must provide.” 457 U.S. at 324, 102 S.Ct. 2452, see also id. at 315, 102 S.Ct. 2452.
245. However, as later cases observe, “this is by no means the same as requiring the State to provide the best care possible or the optimum location to improve the client’s physical, mental and emotional conditions.” Lelsz v. Kavanagh, 807 F.2d 1243, 1251 (5th Cir. 1987), rehg. denied, 815 F.2d 1034, cert. dismissed, 483 U.S. 1057, 108 S.Ct. 44, 97 L.Ed.2d 821 (1987).

246. But Youngberg tells us that “[mentally ill] [p]ersons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” 457 U.S. at 322, 102 S.Ct. 2452.
247. In Youngberg, the Court rejected the state’s argument that the Eighth Amendment subjective deliberate indifference or criminal recklessness standard should govern the due process rights of those who were civilly, as opposed to criminally, committed. Id. at 321– 22, 325, 102 S.Ct. 2452.
248. However, Youngberg also observed that the balancing of liberty and state interests required should not be left to the “unguided discretion” of a judge or jury. Id. at 321, 102 S.Ct. 2452.
[9]249. The Youngberg court decided that an official violates the substantive due process rights of a mentally ill civilly committed individual when his decision injures the individual’s liberty interests and constitutes a “substantial departure from accepted professional judgment.” Id. at 323–24, 102 S.Ct. 2452. Indeed, the Court ruled that “[l]iability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” Id. at 323, 102 S.Ct. 2452. Therefore, in weighing a committed individual’s liberty interests against unreasonable restraints, a court must show deference to the judgment exercised by a qualified professional, which is entitled to a presumption of correctness. Id. at 322, 324, 102 S.Ct. 2452.
250. Youngberg also noted that, “[i]n an action for damages against a professional in his individual capacity, ... the professional will not be liable if he was unable to satisfy his normal professional standards because of budgetary constraints; in such a situation, good faith immunity would bar liability.” Id. at 323, 102 S.Ct. 2452.
251. This principle does not necessarily bar the grant of prospective injunctive or declaratory relief to remedy unconstitutional conditions or policies. See Thomas S. By Brooks v. Morrow, 601 F.Supp. 1055, 1059–60 (W.D.N.C. 1984) (“Lack of funding or of established alternatives is not a factor which may be considered in determining the scope of [constitutional rights analyzed in Youngberg]. Of course, that factor is critical in determining whether damages may be recovered by one who was denied his right to appropriate treatment .... Nor are budgetary constraints restrictive of a court’s equitable authority and power in fashioning prospective relief after

determining that this constitutional right has been violated.” (emphasis in original)). See also Udey v. Kastner, 805 F.2d 1218, 1220 (5th Cir. 1986) (“[I]nadequate resources can never be an adequate justification for depriving any person of his constitutional rights.” (quoting Smith v. Sullivan, 553 F.2d 373, 378 (5th Cir. 1977)); Scott v. Plante, 691 F.2d 634, 637 (3rd Cir. 1982) (“Obviously the problem of hindsight interference with decisions made by hard-pressed professional staff members of state mental institutions is a more serious one than that of assisting them in directing prospective injunctive relief against appropriate state officials.”); Birrell v. Brown, 867 F.2d 956, 959 (6th Cir. 1989) (“In Youngberg, however, the Court indicated that budgetary constraints could cloak an individual with good-faith immunity.... Such immunity based on budgetary constraints does not, of course, excuse the constitutional violations themselves, or prevent court orders that require the government to correct deficiencies.”).
252. Youngberg defined a “professional” as someone “competent, whether by education, training or experience to make the particular decision at issue.” 457 U.S. at 323 n.30, 102 S.Ct. 2452. It distinguished “employees without formal training but who are subject to the supervision of qualified persons,” and who would make “day-to-day decisions regarding care.” Id.; see also Kyle K. v. Chapman, 208 F.3d 940, 943 (11th Cir. 2000) (defendant “direct care” workers were nonprofessionals whose primary responsibility was carrying out the directions of officials who determine patient care; conversely, in Youngberg defendant directors exercised “varying degrees of supervisory authority over the treatment provided to the patient”); cf. Patten v. Nichols, 274 F.3d 829, 840 (4th Cir. 2001) (“Youngberg clearly establishes that a hospital’s obligation to protect the safety of its patients is measured by the professional judgment standard, and there is no reason to think that the hospital generally will attend to its obligation to provide medical care under circumstances substantially different from those under which the hospital attends to its obligation to protect the patient’s safety.”).
253. Sixteen years after Youngberg, the Supreme Court decided County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Unlike Youngberg, Lewis involved the alleged reckless conduct of a deputy sheriff who instigated a high speed chase that led to a death. Lewis, 523 U.S. at 836–37, 118 S.Ct. 1708. The decedent’s estate sued the county, sheriff’s department, and deputy, alleging deprivation of the decedent’s substantive due process right to life. Id. at 837, 118 S.Ct. 1708.
254. In determining what standard to apply, the Court emphasized that a cognizable substantive due process

claim must allege official conduct that “shocks the conscience.” Id. at 846, 118 S.Ct. 1708. The Court also observed that negligent conduct would not give rise to a due process claim, while conduct “intended to injure” and unjustified by any government interest would. Id. at 848– 49, 118 S.Ct. 1708.
255. The Court observed that, for conduct falling between those extremes, “deliberate indifference” would satisfy the fault requirement for due process claims, whether brought by convicted prisoners or someone jailed and awaiting trial. Id. at 849–50, 118 S.Ct. 1708.
256. The Court noted, however, that “[d]eliberate indifference that shocks in one environment may not be so patently egregious in another,” and that the term “deliberate indifference” implies a standard “sensibly employed only when actual deliberation is practical.” Id. at 850–51, 118 S.Ct. 1708. Emphasizing the need for “fast action” and the balancing of multiple conflicting duties, id. at 853, 118 S.Ct. 1708, the Court held that, absent a “purpose to cause harm,” officer actions during a highspeed chase do not give rise to a due process violation. Id. at 854, 118 S.Ct. 1708.
257. In reaching its holding, the Court distinguished “the custodial situation of a prison,” where deliberation was not only “practical” and “feasible” but also “obligatory under a regime that incapacitates a prisoner to exercise ordinary responsibility for his own welfare.” Id. at 851, 118 S.Ct. 1708. The Court observed that the situation in Youngberg could be categorized on “much the same terms,” as “[t]he combination of a patient’s involuntary commitment and his total dependence on his custodians obliges the government to take thought and make reasonable provision for the patient’s welfare.” Id. at 852 n.12, 118 S.Ct. 1708.
258. More recently, the Fifth Circuit has stated that a pretrial detainee’s Section 1983 action based on “episodic acts or omissions” in violation of Fourteenth Amendment rights must show subjective deliberate indifference, i.e., that an official “knew of and disregarded a substantial risk of serious harm.” Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415, 419–20 (5th Cir. 2017). Official conduct must be “wanton” or “reckless” to meet this standard; “inept, erroneous, ineffective, or negligent” conduct does not suffice. Id. at 420.
259. Several district courts have also applied Youngberg, Foucha, Jones, and related cases in circumstances similar to those presented here. In Ward v. Hellerstedt, 2017 WL 1611761 (W.D. Tex., April 28, 2017), the Western District of Texas considered claims that NGRI acquittees were “languish[ing] in a jail setting for months on end with no treatment or evaluation,” violating their interests

in “freedom from incarceration” and “the receipt of restorative treatment.” Id. at *2. The court observed that, with respect to NGRI acquittees, Jones and Foucha state that the purpose of an insanity acquittee’s commitment is dual: “treatment and protection of society.” Id. at *4. The court also noted that “continued detention based on dangerousness and mental illness is only constitutional when there has been a sufficiently prompt full adversarial hearing where the State has proven by clear and convincing evidence that the individual is demonstrably dangerous to the community.” Id.
260. In Luna v. Van Zandt, 554 F.Supp. 68 (S.D. Tex. 1982), the Southern District of Texas considered the constitutionality of a protective custody statute which, according to the plaintiff, permitted “involuntary detention without a probable cause hearing” and without “provid[ing] notice of the grounds and authority authorizing protective custody.” Id. at 71.
261. The court ruled that individuals may be detained absent prior notice and opportunity for a hearing in “extraordinary situations;” the statute at issue was constitutional in this respect because it permitted the detention of individuals “who allegedly pose an immediate threat of harm to self, others, or society.” Id. at 72.
262. However, the court determined that the statutory scheme requiring detainees to wait 14 days or longer for a preliminary “probable cause hearing” was unconstitutional. Id. at 72–73, 75–76.
263. According to the court, “[t]he threat of immediate harm to self or others clearly justifies the initial detention. Once the proposed patient is rendered secure and is placed under custody, however, this immediate threat of harm dissipates. His continued confinement can no longer be justified on that basis.” Id. at 72–73. In other words, after the individual had been “secured,” a hearing was necessary in order to ensure that the nature of the commitment continued to bear some reasonable relationship to the purpose for which the individual remained committed. See id.
264. In Neiberger v. Hawkins, 239 F.Supp.2d 1140 (D. Colo. 2002), the District of Colorado attempted to reconcile Youngberg’s balancing and professional judgment standard with the general standards discussed in Lewis and its progeny. Id. at 1149–51.
265. The court observed that a person’s substantive due process rights are violated by the “arbitrary, abusive, or oppressive use of governmental power,” i.e., “egregious” conduct that “shocks the conscience.” Id. at 1149 (citing Lewis, 523 U.S. at 846, 118 S.Ct. 1708).

266. According to Neiberger, when a plaintiff alleges conduct that is worse than negligent but not intentional, Lewis “directs the inquiry to the official’s opportunity for deliberation.” Id. (citing Lewis, 523 U.S. at 850–55, 118 S.Ct. 1708).
267. In cases involving individuals not committed for punishment, Neiberger also rejects the general Eighth Amendment “deliberate indifference” standard in favor of the Youngberg standard. Id. at 1149. As Neiberger observes, the individuals in Youngberg merited “greater constitutional vigilance from their caretakers than ... ordinary prisoners,” but Youngberg was also wary “of placing too onerous a burden on these officials.” Id. at 1150 (citing Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1144–45 (3d Cir. 1990)).
268. In Neiberger’s view, Youngberg’s “professional judgment” standard constituted a “middle[ ]ground” between a very deferential “deliberate indifference” standard and more searching “compelling” or “substantial necessity” tests. See id. (citing Shaw, 920 F.2d at 1145).
269. Youngberg and its progeny remain good law. Moreover, as discussed above, these cases account for numerous factors that are unique or particularly relevant to decisions made about the care and detention of NGRI individuals, namely (1) their placement in state custody and resulting inability to provide for their own wellbeing; (2) the fact that they have not been found legally responsible for criminal conduct and have a greater liberty interest than an individual convicted of a crime; (3) their typical placement with individuals who receive training and exercise informed, professional judgment about their care; and (4) officials’ general ability to make deliberate, unhurried decisions about their care.
270. The Court is therefore persuaded, at least as an initial matter, to use Youngberg’s balancing and professional judgment standards to determine whether Defendants’ conduct “shocks the conscience,” as is required to give rise to a due process claim.
271. Because there is a reasonable argument, however, that one of the aforementioned “deliberate indifference” standards applies, the court will also consider the application of these standards in the alternative. See, e.g., Terry, 232 F.Supp.2d at 943–44 (balancing state interests against incompetent pretrial detainees’ interests in treatment and freedom and noting, in the alternative, that the failure to provide restorative treatment was deliberate indifference by the state agency).

F. APPLICATION OF LAW TO FACTS OF CASE
272. The Court will address each issue separately.
G. EXISTENCE AND CONSTITUTIONALITY OF ALLEGED POLICY, PRACTICE, AND PROCEDURE
273. Plaintiff’s central argument is that Defendants maintained a “policy, practice and procedure” of arresting and incarcerating NGRI acquittees for violating their conditions of release when no crime had been committed. (Doc. 42, ¶¶ 1, 77, 78, 80, 86, 91, 93–94.) He argues that a policy has been proven primarily by two facts: first, the two incidents in which George himself was arrested and incarcerated; and second, the testimony of Tubbs that there were some 12 to 18 other incidents in which Tubbs arrested and incarcerated NGRI acquittees. He also attempts to support his argument by maintaining that Defendants “haven’t claimed that Mr. George’s experiences were unique” (Doc. 160 at 18), and that “[t]here is no evidence before this Court that by incarcerating Mr. George for 25 and 55 days that defendants were following a practice unique to Mr. George.” (Id. at 13.)
274. In support of his argument that he has factually proved a policy, practice or procedure, Plaintiff cites a record in another case dealing with persons found incompetent to stand trial, Advocacy Center for Elderly and Disabled v. Louisiana Dep’t of Health and Hospitals, 731 F.Supp.2d 603, 627 (E.D. La. 2010). (Doc. 160 at 13). Plaintiff also points the Court to a decision of this Court denying a motion to dismiss. See generally Cooper, 2014 WL 7334911. Yet neither of these cases provides the factual support for the argument made here.
275. While the Court certainly has concerns with the extended incarcerations of George without a hearing, it is Plaintiff’s burden to prove his allegations, including the allegation that there was a “policy, procedure and practice.” It is not the Defendants’ burden to show these two incidents were unique.
[10]276. As noted above, the Court finds that two arrests do not establish a “policy, practice or procedure.” While the two share the common fact that George was arrested and incarcerated for violating a condition of his release (being physically assaultive and aggressive and presenting a danger to others), the two incidents are also significantly different. The first involved his conduct while on release in a group home and at his day program while the second occurred at ELMHS. More importantly, however, even if

identical, the number of incidents is insufficient to establish a policy, procedure or practice.
277. Tubbs’ testimony that “over the years, [he] moved to revoke somewhere around 12 to 18 of the Not Guilty by Reason of Insanity folks that [he] supervised,” (Tubbs Test., Doc. 148 at 84:17–86:12), likewise does not establish the policy or procedure Plaintiff claims. First, Tubbs testified that he moved to revoke these NGRI acquittees and did not, as Plaintiff’s claimed practice would require, simply arrest and incarcerate them on his own. Rather, the testimony suggests that Tubbs invoked the authority of the court. Second, his testimony gives no information as to the circumstances surrounding the conduct that gave rise to the arrest, including whether or not the acquittees had committed a crime.
278. However, even if Plaintiff had proved a policy, procedure, or practice of arresting an NGRI acquittee for violations of conditions of release when no crime had been committed, the Court finds that this policy alone does not violate the Constitution for the reasons given below.
H. ARREST AND INCARCERATION FOR VIOLATIONS OF CONDITIONS OF RELEASE
WHEN NO CRIME WAS COMMITTED
279. Plaintiff argues that, while the state may detain pretrial criminal defendants who are a danger to others or to the community, the Supreme Court has explicitly approved of this practice only in narrow circumstances to prevent “the most serious of crimes” and only where a court makes an initial determination of probable cause for the detention followed by a “prompt” detention hearing to prove by clear and convincing evidence that no other less restrictive condition could ensure the safety of the community. (Doc. 151, ¶ 141) (citing Foucha, 504 U.S. at 81–82, 112 S.Ct. 1780; United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)).
280. Plaintiff argues that, even without a policy, practice or procedure, he has proven that his arrest and incarceration on two occasions violated his substantive due process rights.
281. Indeed, says Plaintiff, even where it is appropriate to revoke probation and return him to confinement, the law requires the detention to be in a public or private mental hospital, not a jail. (Doc. 151, ¶ 152) (citing La. Code Crim. Proc. art. 654.)
282. Plaintiff claims that Defendants chose to have

George arrested and placed in East Baton Rouge Parish Prison on two separate occasions, despite the fact that less restrictive alternatives were available. Such alternatives included treating George at a private mental hospital. According to Plaintiff, a reasonable officer in the same circumstances would have appreciated the risk of placing a severely ill man in a parish prison setting not intended to provide the level of mental health treatment necessary. (Doc. 151, ¶ 162.)
283. In post-trial briefing, Plaintiff characterized his claims as whether it was constitutional to confine him in a parish prison for six weeks. (Doc. 151, ¶¶ 151, 153 (emphasis added).) However, as noted previously, Plaintiff has since acknowledged that his constitutional claims are “limited to the issue of whether the arrest and incarceration of George solely for violation of conditions of his release in the absence of a criminal arrest violated George’s substantive due process rights.” (Doc. 163 at 1.) Plaintiff’s constitutional claims do not include “issues of length of incarceration before release, length of incarceration without or before a hearing, adequacy of medical care, and other issues.” (Id.)
284. Defendants, on the other hand, argue that “when an arrest is made by state officers acting pursuant to state authority, ‘the requisite standard of probable cause for a lawful arrest is determined by state law, provided such law meets federal constitutional standards.’ ” (Doc. 152, ¶ 96) (citing United States v. Ullrich, 580 F.2d 765, 769 (5th Cir. 1978)).
285. Defendants insist that La. Code Crim. Proc. art. 658(B) specifically authorizes the arrest and detention of an NGRI acquittee in conformity with the applicable provisions of La. Code Crim. Proc. art. 899, and La. Code Crim. Proc. art. 899(B) provides that a probation officer may arrest a defendant without a warrant if the officer “has reasonable cause to believe that a defendant violated or is about to violate a condition of his probation” and therefore such an arrest does not violate the Fourth Amendment. (Doc. 152, ¶ 97.)
286. The term “reasonable cause” is also cited in La. Code Crim. Proc. art. 213, which sets forth generally the instances in which a peace officer may lawfully arrest someone without a warrant. “In interpreting the meaning of ‘reasonable cause’ in ... Code of Criminal Procedure Art. 213, reasonable cause has been equated with probable cause.” (Doc. 152, ¶ 98) (citing Lawrence v. Henderson, 344 F.Supp. 1287, 1292 n.15 (E.D. La. 1972) aff’d, 478 F.2d 705 (5th Cir. 1973)).
287. Defendants maintain that reasonable cause under Louisiana law has been “judicially recognized as equivalent to probable cause.” (Doc. 152, ¶ 99) (citing,

inter alia, Haith v. City of Shreveport, 2005 WL 2140583, at *4 (W.D. La. Sept. 1, 2005); Sebald v. City of New Orleans, 2005 WL 1400428, at *4 (E.D. La. June 6, 2005)).
288. Because Defendants had probable cause to arrest Plaintiff for violating the conditions of his conditional release order for exhibiting violent and threatening behavior at the time of both arrests, Defendants contend that Plaintiff’s arrest and incarceration were both consistent with Louisiana and constitutional law. (D Brief, Doc. 152, ¶ 100.)
289. First, the Court previously held that the two key provisions of Louisiana’s challenged statutory scheme, La. Code Crim. Proc. arts. 658 and 899, are facially constitutional. (Doc. 124 at 3, 22–26.) As the Court observed, “court after court has refused to declare as unconstitutional statutes that authorize the arrest of a person found NGRI upon his or her violations of the conditions of his or her release, assuming any such recommission is ultimately reviewable by a court of law.” (Id. at 23–24) (citing Archuleta v. Hedrick, 365 F.3d 644, 648 (8th Cir. 2004); Phelps v. United States, 831 F.2d 897, 898 (9th Cir. 1987); Cochran v. Dysart, 965 F.2d 649, 649 (8th Cir. 1992); Grass v. Reitz, 643 F.3d 579 (8th Cir. 2011)); see also Ward, 2017 WL 1611761 at *4 (“A determination that an insanity acquittee is dangerous, without more, would therefore be insufficient to make constitutional an insanity acquittee’s indefinite incarceration in a county jail. Moreover, continued detention based on dangerousness and mental illness is only constitutional when there has been a sufficiently prompt full adversarial hearing ...” (emphasis added, spelling altered)); cf. Lynch v. Baxley, 386 F.Supp. 378, 387 (M.D. Ala. 1974) (three-judge panel) (Alabama statutes providing for emergency detention in county jail or state mental hospitals were facially unconstitutional because they authorized “ex parte and summary deprivation of liberty without any of the rudimentary protections long recognized as required by the due process of law;” emergency detention absent a hearing was constitutional “only for the length of time required to arrange a probable cause hearing,” and in no event for more than seven days).
290. While Plaintiff’s current constitutional challenge is not styled as such, it is in a very real way a continuing facial challenge since it claims principally that any arrest and incarceration of an NGRI acquittee for violating his conditions of release when the acquittee has not been accused of committing a crime is unconstitutional, regardless of the circumstances. (Pl.’s Second Amd. Compl., Doc. 42 at 18–19; Doc. 160 at 1–4; Doc. 163 at 1). Counsel for Plaintiff conceded as much at oral argument.

[11]291. As previously discussed, however, even though George was not legally responsible for the acts he committed, the Supreme Court has emphasized that an NGRI acquittee is not free to resume his life unfettered by any restrictions. Society has an interest in insuring that an insanity acquittee poses no danger to himself or the public. Jones, 463 U.S. at 368, 103 S.Ct. 3043. This interest is typically stronger in the case of an NGRI than other persons subject to non-punitive commitment, as an NGRI has been found beyond a reasonable doubt to have committed a criminal act. Id. at 364, 103 S.Ct. 3043.
292. Moreover, the Fifth Circuit has reaffirmed the state’s interest in taking reasonable steps to protect society and the acquittee himself from the acquittee’s “potential dangerousness.” Poree, 866 F.3d at 248 (“[T]he governing legal principle derived from Foucha and Jones is that a state may continue to confine an insanity acquittee only so long as the acquittee is both mentally ill and dangerous.... [I]n Jones the Court indicated that the dangerousness finding is predictive in nature and that the government is permitted to protect against the ‘potential dangerousness’ of [NGRI] acquittees.”).
293. In light of these authorities, the Court reiterates that Louisiana’s statutory scheme, which allows for the arrest and short-term detention of an NGRI acquittee in jail for violation of conditions of release, with no or less-thanoptimal medical care, is facially constitutional.
294. Such a detention, as in this case, can easily be “reasonably related to a legitimate governmental objective,” Estate of Henson, 795 F.3d at 467 (citing Bell, 441 U.S. at 539, 99 S.Ct. 1861), i.e., protection against the real or potential dangerousness of the individual towards himself or others. Poree, 866 F.3d at 248.
295. And while the Court agrees that “continued detention based on dangerousness and mental illness is only constitutional when there has been a sufficiently prompt and full adversarial hearing where the State has proved by clear and convincing evidence that the individual is demonstrably dangerous to the community,” Ward, 2017 WL 1611761 at *4, Louisiana’s statutory scheme provides for such a hearing. La. Code Crim. Proc. arts. 658(B)(6) and 899(B), (E).
[12]296. For the same reason, George’s as-applied claim that his due process rights were violated by his arrest and detention, solely based on his violation of his conditions of release and in the absence of a criminal charge, is also denied.
297. The Court has found as a matter of fact that, at the time of both arrests, George presented both a real and

potential danger to those around him.
298. Therefore, Plaintiff’s placement in jail on both occasions was constitutional, as it bore a reasonable relationship to the state’s legitimate interest in protecting others from George’s dangerousness. See Foucha, 504 U.S. at 79, 112 S.Ct. 1780; see also Luna, 554 F.Supp. at 72 (“The threat of immediate harm to self or others clearly justifies the initial detention.”).15
299. As the Court also discussed above, at the times when Defendants were considering whether to jail George, there were reasons to believe that alternative placement was unavailable. While the Court questions whether Brady and Tubbs could have done more, mere negligence does not give rise to a constitutional violation. Lewis, 523 U.S. at 848–49, 118 S.Ct. 1708 (“[T]he Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.”); Neiberger, 239 F.Supp.2d at 1149 (citing Lewis, 523 U.S. at 848–49, 118 S.Ct. 1708)).
300. Furthermore, under the Youngberg standard, the professional judgment of Tubbs, Brady and Vosburg,16 based upon reasonable evaluation of the threat George posed and the alternatives available, is presumptively valid. Plaintiff has not overcome this presumption, nor does it appear that he could do so in light of the facts previously found by the Court based upon the evidence and testimony at trial. As Youngberg observes, “the Constitution only requires that the courts make certain that professional judgment in fact was exercised. It is not appropriate for the courts to specify which of several professionally acceptable choices should have been made.” 457 U.S. at 321–22, 102 S.Ct. 2452.
301. Although Plaintiff encourages the Court to graft a “least restrictive setting” component onto the Youngberg standard, the Fifth Circuit has rejected this approach in a similar factual setting, Lelsz, 807 F.2d at 1249 & n.8 (rejecting reading of Youngberg that “attempt[ed] to transform the state right of a least restrictive environment into a federal right”), and the Court therefore declines to adopt it.
302. In the alternative, for substantially the same reasons, the Court cannot conclude that Defendants’ decision to jail George was objectively unreasonable under the circumstances or that the Defendants were actually aware of and disregarded a substantial risk of serious harm. Kingsley, 135 S.Ct. at 2470; Alderson, 848 F.3d at 419– 20. This is especially true since George received some level of care, albeit far from ideal, at EBRPP. Instead, Defendants exercised reasonable judgment under the circumstances, evaluating both the threat that George

posed and the alternatives available, and came to the objectively reasonable conclusion that short-term placement of George in the EBRPP was warranted.
303. For the foregoing reasons, the Court concludes that Plaintiff has not demonstrated legal justification for the issuance of the requested declaratory judgment and injunction as it pertains to his constitutional claims.
I. PLAINTIFF’S CLAIMS SEEKING DECLARATORY AND INJUNCTIVE RELIEF
UNDER THE ADA AND SECTION 504
304. In its verdict, the jury found that Defendants DHH and LDPSC had “not discriminate[d] against Plaintiff because of his disabilities” either under the ADA or Section 504. (Doc. 144 at 1–2.) They further found that these same Defendants had not “fail[ed] to provide Plaintiff with a reasonable modification appropriate for his disabilities.” (Id.)
305. Nonetheless, Plaintiff seeks a declaratory judgment that Defendants’ policies, practices, and procedures of arresting and incarcerating individuals in correctional facilities who have been placed on conditional discharge following a finding of NGRI based on a violation of a condition of their discharge violates Plaintiff’s rights under Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act of 1973 (“RA”). (See Doc. 42.)
306. Following initial post-trial briefing, the Court asked the parties to answer certain specific questions, including the following: “With respect to Plaintiff’s claims under the ADA and RA, what effect or weight must/should the Court give to the jury’s findings?” (Doc. 159 at 5.)
307. In response, Plaintiff “admits that, as long as the jury’s findings stand, this Court is obliged to apply [the] law to the facts as the jury found them.” (Doc. 160 at 160.) Defendants agree. (Doc. 161 at 11.)
308. However, under Federal Rule of Civil Procedure 50(b), Plaintiff renews its motion for judgment as a matter of law (“JMOL”) made at the close of the evidence. (Doc. 160 at 23–24; Trial Tr., Doc. 150 at 62:21–63:20.) The motion was denied by the Court because of questions of fact on critical questions ultimately answered by the jury in its verdict. (Id. at 63:18–20.) Defendants oppose the motion, arguing principally that there was sufficient evidence to support the jury’s verdict. (Doc. 168 at 4–9.)
[13] [14] [15]309. Plaintiff correctly sets forth the standard the

Court must follow in considering Plaintiff’s renewed motion. (Doc. 160 at 23–24). A motion for JMOL raises only a question of law: “[w]hether there is any evidence which, if believed, would authorize a verdict against movant.” Marsh v. Illinois Cent. R. Co., 175 F.2d 498, 500 (5th Cir. 1949). “A judgment as a matter of law is appropriate if the facts and inferences point so strongly and overwhelmingly in favor of one party that reasonable people could not arrive at a verdict to the contrary.” Buchanan v. City of San Antonio, 85 F.3d 196, 198 (5th Cir. 1996). In considering a motion for JMOL, the court is not to re-weigh the evidence or assess the credibility of witnesses. See Lytle v. Household Mgf., Inc., 494 U.S. 545, 554, 110 S.Ct. 1331, 108 L.Ed.2d 504 (1990). Rather, the court must examine the entire record in the light most favorable to the non-movant and draw all inferences in the non-movant’s favor. Becker v. PaineWebber, Inc., 962 F.2d 524, 526 (5th Cir. 1992).

this one did, that George was not arrested and incarcerated (the alleged basis for Plaintiff’s charge of discrimination) based on his disability, but rather, based on the potential danger he posed to others and himself. Further, a reasonable jury could conclude that the care he received at EBRPP, while not optimal, was not discriminatory and was a reasonable accommodation under the circumstances.
312. Accordingly, Plaintiff’s renewed motion for judgment as a matter of law is denied.
313. Given the jury’s findings, the Court concludes that Plaintiff has not demonstrated legal justification for the issuance of the requested declaratory judgment and injunction as it pertains to his ADA and Section 504 claims.

[16]310. At trial, there was an abundance of evidence showing that first, George was arrested because he posed a potential danger to others. (See, e.g., Brady Test., Doc. 148 at 124:24–125:23; Kelly Test., Doc. 149 at 79:21–24, 80:1–6; Pl.’s Trial Ex. 11 at TG000014; Defs.’s Trial Ex. 5 at 1–2.) Second, the uncontradicted testimony at trial was that George was placed at EBRPP because there were no beds available at ELMHS. (See, e.g., Tubbs Test., Doc. 148 at 84:6–10; see also Brady Test., Doc. 148 at 122:4– 18, 124:22–23, 126:3–13, 127:21–22). Finally, there was evidence presented to the jury that, while not identical to the care he would have received at ELMHS, nonetheless, he received the care of a psychiatrist and a social worker and received at least some of his psychiatric medicines while at EBRPP. (See, e.g., Burns Test., Doc. 149 at 106:13–110:17, 145:4–9).
311. Considering the evidence in the light most favorable to the Defendants, a reasonable jury could conclude, as
Footnotes

CONCLUSION
In light of the foregoing findings of fact and conclusions of law, IT IS HEREBY ORDERED THAT Plaintiff’s renewed motion for judgment as a matter of law is DENIED and Plaintiff’s claims are DENIED in all respects. Judgment shall be entered in favor of Defendants and against Plaintiff by separate document in conformity with Rule 58.
All Citations
272 F.Supp.3d 855

1

Because an amended complaint supplants and replaces prior complaints, Eubanks v. Parker Cty. Commr’s Court, 1995 WL 10513,

at *2 (5th Cir. Jan. 3, 1995); Hall v. Louisiana, 983 F.Supp.2d 820, 832 (M.D. La. 2013), the Court considers Plaintiff’s Second

Amended Complaint (Doc. 42, in globo ) to be the operative pleading in this action.

2

Since the filing of these complaints, the Louisiana Department of Health and Hospitals has been re-designated the Louisiana

Department of Health. See La. Rev. Stat. Ann. § 36:251.

3

Where appropriate, a public official’s successor is automatically substituted as a party consistent with Federal Rule of Civil

Procedure 25(d).

4

Because the Court denies George’s claims on the merits, see infra, it does not discuss this issue.

5

In his trial testimony, Tubbs testified that this incident occurred on July 25, 2017. (Doc. 148 at 80:10–13.) This discrepancy is not

important to the Court’s analysis.

6

As is discussed, infra, this affidavit and motion were not executed and filed until August 12, 2013.

7

Nonetheless, in Pl.’s Trial Ex. 19 at TG000206–207, Tubbs classified George’s conduct as a “Level 3 violation—Misdemeanor

activity (serious violent).” Tubbs continued, “[George] threatened staff and other clients with violence for the 3d [sic] time. The

group home wanted him out due to his behavior.” Tubbs classified his response to George’s conduct as “Level 3 Action—

Arrest/Detain with Custodial Treatment... Warrant/Motion and Order to Revoke.”

8

While the questioning refers to George being released on August 21, 2013, the actual date of release was, according to the

stipulation of the parties, August 23, 2013. (Pl.’s Trial Ex. 24 at 4, No. 17.) This discrepancy plays no role in the Court’s analysis.

9

George “shoved male staff[,] not causing physical harm;” threatened “homicidal ideations” [sic] towards staff members and

“accused a male staff member of trying to poison him.” (Pl.’s Trial Ex. 5 at TG000006.)

10 In George’s case, the staff at Progressive attempted to bring him his medications on the date of his July 2013 arrest, but “staff were turned around.” (Hope Test., Doc. 149 at 194:16.)

11 While not relevant to the Court’s decision, the Court also notes that there was no evidence as to how long the acquittees, in these other arrests and incarcerations remained incarcerated before a court hearing was held or how long these individuals remained incarcerated before being released to ELMHS or other psychiatric facility. There was no policy, practice or procedure demonstrated in this regard either.

12 This Court has previously held in this matter that neither La. Code Crim. Proc. art. 658(B) nor La. Code Crim. Proc. art. 899 are unconstitutional on their face. (See Doc. 124 at 22–24.)

13 While not determinative in this case, the Fifth Circuit in Poree felt “compelled to note” that Louisiana’s statutory requirement that confinement is justified only when there is a “reasonable expectation that there is a substantial risk” that the acquittee will cause harm, La. Rev. Stat. Ann. §§ 28:2(3) and (4), is a more demanding standard than that applied by the state court and approved of by the Fifth Circuit. 866 F.3d at 249–50.

14 Defendants suggest they haven’t done so because Plaintiff’s claim tried to the Court was limited to the sole issue of whether declaratory and injunctive is justified based on the alleged unconstitutional policies, practices and procedures of Defendants in arresting and incarcerating NGRI acquittees for violations of conditions of release alone, when no crime has been committed. (Doc. 161 at 1–2, 9–10.) This contention was repeated in oral argument.

15 The Court emphasizes its concern regarding George’s lengthy stays in EBRPP without a hearing or earlier placement in a mental hospital. The Court believes that “continued detention based on dangerousness and mental illness is only constitutional when there has been a sufficiently prompt and full adversarial hearing where the State has proved by clear and convincing evidence that the individual is demonstrably dangerous to the community.” Ward, 2017 WL 1611761 at *4 (emphasis added); see also Luna, 554 F.Supp. at 71–76. There is the additional issue of whether such prolonged incarceration in the absence of adequate psychiatric care is punishment. But, as counsel for Defendants understandably pointed out at oral argument, because the length of George’s incarcerations and quality of medical care were not (and are not) issues before the Court, Defendants did not fully address these issues at trial or in briefing.

16 The Court finds that all three were “professionals” as defined by Youngberg: someone “competent, whether by education, training or experience, to make the particular decision at issue.” 457 U.S. at 323, n. 30, 102 S.Ct. 2452.

 
 Case: 3:14-cv-338 As of: 10/06/2016 12:18 PM CDT 1 of 17
U.S. District Court Middle District of Louisiana (Baton Rouge) CIVIL DOCKET FOR CASE #: 3:14−cv−00338−JWD−RLB

George v. Louisiana Department of Public Safety and Corrections et al Assigned to: Judge John W. deGravelles Referred to: Magistrate Judge Richard L. Bourgeois, Jr Cause: 28:1343 Violation of Civil Rights
Plaintiff

Date Filed: 05/28/2014 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Trussell George

represented by Ronald Kenneth Lospennato Advocacy Center 8325 Oak Street New Orleans, LA 70118 504−208−4679 Fax: 504−335−2890 Email: rlospennato@advocacyla.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ellen Hahn Advocacy Center − LAF 600 Jefferson Street Suite 812 Lafayette, LA 70501 337−237−7380, Ext. 311 Fax: 337−237−0486 Email: nhahn@advocacyla.org ATTORNEY TO BE NOTICED

Eric Andrew Foley MacArthur Justice Center 4400 S. Carrollton Ave. New Orleans, LA 70119 (504) 684−2364 Email: eric.foley@macarthurjustice.org ATTORNEY TO BE NOTICED

Katharine Murphy Schwartzmann Roderick & Solange MacArthur Justice Center 4400 S. Carrollton Avenue New Orleans, LA 70119 504−620−2259 Fax: 504−208−3133 Email: katie.schwartzmann@macarthurjustice.org ATTORNEY TO BE NOTICED

Kathryn Fernandez Advocacy Center of Louisiana 8325 Oak Street New Orleans, LA 70118 (504) 522−2337 Email: kfernandez@advocacyla.org ATTORNEY TO BE NOTICED

Laura Lee Thornton Advocacy Center 8325 Oak St. New Orleans, LA 70118 (504) 522−2337 Email: lthornton@advocacyla.org

Case: 3:14-cv-338 As of: 10/06/2016 12:18 PM CDT 2 of 17 ATTORNEY TO BE NOTICED

V. Defendant Louisiana Department of Public Safety and Corrections
Defendant James M. LeBlanc Secretary of the Louisiana Department of Public Safety and Corrections, in his official capacity

represented by Elizabeth Everett Zealandia Holding Company (in house) One Vance Gap Road Asheville, NC 28805 337−581−6968 Email: beverett@zhcompany.com TERMINATED: 01/15/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James L. Hilburn 628 St. Louis Street P.O. Box 4425 Baton Rouge, LA 70821−4425 225−346−1461 Email: jamesh@scwllp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edmond Wade Shows Shows, Cali & Walsh, LLp P. O. Drawer 4425 628 St. Louis Street Baton Rouge, LA 70821 225−346−1461 Fax: 225−346−1467 Email: wade@scwllp.com ATTORNEY TO BE NOTICED
Jeffrey K. Cody Shows, Cali, Berthelot & Walsh, LLP 628 St. Louis Street Baton Rouge, LA 70802 225−346−1461 Fax: 225−346−1467 Email: jeffreyc@scwllp.com ATTORNEY TO BE NOTICED
represented by Elizabeth Everett (See above for address) TERMINATED: 01/15/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James L. Hilburn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edmond Wade Shows (See above for address) ATTORNEY TO BE NOTICED
Jeffrey K. Cody (See above for address) ATTORNEY TO BE NOTICED

Case: 3:14-cv-338 As of: 10/06/2016 12:18 PM CDT 3 of 17

Defendant Whalen Gibbs Assistant Secretary of the Louisiana Department of Public Safety and Corrections, in his official and individual capacities
Defendant Scott Tubbs Probation and Parole Agent, in this official and individual capacities
Defendant Gerald Starks Director of the Division of Probation and Parole, in this official and individual capacities
Defendant

represented by Elizabeth Everett (See above for address) TERMINATED: 01/15/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James L. Hilburn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edmond Wade Shows (See above for address) ATTORNEY TO BE NOTICED
Jeffrey K. Cody (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Everett (See above for address) TERMINATED: 01/15/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James L. Hilburn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edmond Wade Shows (See above for address) ATTORNEY TO BE NOTICED
Jeffrey K. Cody (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Everett (See above for address) TERMINATED: 01/15/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James L. Hilburn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edmond Wade Shows (See above for address) ATTORNEY TO BE NOTICED
Jeffrey K. Cody (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 3:14-cv-338 As of: 10/06/2016 12:18 PM CDT 4 of 17

Kathy Kliebert Secretary of the Louisiana Department of Health and Hospitals, in her official capacity

James L. Hilburn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Everett (See above for address) TERMINATED: 01/15/2015 ATTORNEY TO BE NOTICED

Jeffrey K. Cody (See above for address) ATTORNEY TO BE NOTICED

Jenna Germany Young LA Dept of Health & Hospitals P.O. Box 3836 Baton Rouge, LA 70821 225−342−1128 Fax: 225−342−2232 Email: Jenna.Young@la.gov ATTORNEY TO BE NOTICED

Lindsay L Pantaleo Department of Health and Hospitals P.O. Box 3836 Baton Rouge, LA 70821 225−342−8881 Email: lindsay.pantaleo@la.gov ATTORNEY TO BE NOTICED

Defendant
Lousiana Department of Health and Hospitals

represented by James L. Hilburn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Everett (See above for address) TERMINATED: 01/15/2015 ATTORNEY TO BE NOTICED

Jeffrey K. Cody (See above for address) ATTORNEY TO BE NOTICED

Jenna Germany Young (See above for address) ATTORNEY TO BE NOTICED

Lindsay L Pantaleo (See above for address) ATTORNEY TO BE NOTICED

Defendant
Eric Brady District Forensic Coordinator, in his official and individual capacities

represented by James L. Hilburn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Everett (See above for address) TERMINATED: 01/15/2015 ATTORNEY TO BE NOTICED

Case: 3:14-cv-338 As of: 10/06/2016 12:18 PM CDT 5 of 17

Defendant
Charles P Vosburg Consulting Psychologist for the Department of Health and Hospitals, in his official and individual capacities

Jeffrey K. Cody (See above for address) ATTORNEY TO BE NOTICED
Jenna Germany Young (See above for address) ATTORNEY TO BE NOTICED
Lindsay L Pantaleo (See above for address) ATTORNEY TO BE NOTICED
represented by James L. Hilburn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Everett (See above for address) TERMINATED: 01/15/2015 ATTORNEY TO BE NOTICED
Jeffrey K. Cody (See above for address) ATTORNEY TO BE NOTICED
Jenna Germany Young (See above for address) ATTORNEY TO BE NOTICED
Lindsay L Pantaleo (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/28/2014
05/29/2014 05/29/2014 05/29/2014
06/06/2014 06/06/2014 07/04/2014

# Docket Text
1 COMPLAINT against All Defendants, filed by Trussell George. (Attachments: # 1 Affidavit IFP Application, # 2 Attachment Propose Order−IFP, # 3 Attachment Civil Cover Sheet)(Lospennato, Ronald) (Attachment 3 replaced on 5/29/2014) (SMG). (Entered: 05/28/2014)
2 MOTION to Proceed In Forma Pauperis by Trussell George. (Attachments: # 1 Attachment Proposed Order on IFP)(Lospennato, Ronald) Modified to edit text on 5/29/2014 (SMG). (Entered: 05/29/2014)
MOTION(S) REFERRED: 2 MOTION to Proceed in forma pauperis. This motion is now pending before the USMJ. (SMG) (Entered: 05/29/2014)
3 ORDER granting 2 Motion to Proceed in forma pauperis. The US Marshal shall serve the dfts with a summons and a copy of the Complaint. Signed by Magistrate Judge Stephen C. Riedlinger on 5/29/2014. (SMG) (Main Document 3 replaced on 5/30/2014) (SMG). (Entered: 05/29/2014)
4 Summons Submitted (Lospennato, Ronald) (Entered: 06/06/2014)
5 Summons Issued as to Whalen Gibbs, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Gerald Starks, Scott Tubbs. (Summons Submitted to the USM .) (JDL) Modified on 6/16/2014 to edit the text (NLT). (Entered: 06/06/2014)
6 90 DAY CONFERENCE ORDER: Scheduling Conference set for 8/28/2014 at 3:00 PM in chambers before Magistrate Judge Stephen C. Riedlinger. Status Report due by 8/14/2014. Signed by Magistrate Judge Stephen C. Riedlinger on 7/4/14. (BNW) (Entered: 07/04/2014)

Case: 3:14-cv-338 As of: 10/06/2016 12:18 PM CDT 6 of 17

07/15/2014 08/04/2014 08/05/2014 08/05/2014 08/05/2014 08/13/2014 08/14/2014 08/14/2014
08/19/2014 08/20/2014
08/21/2014 08/21/2014
08/21/2014 08/22/2014 09/03/2014 09/05/2014

7 SUMMONS Returned Executed. Gerald Starks served on 7/14/2014, answer due 8/4/2014. (US Marshal, ) (Entered: 07/15/2014)
8 SUMMONS Returned Executed. Whalen Gibbs served on 7/24/2014, answer due 8/14/2014. (US Marshal, ) (Entered: 08/04/2014)
9 SUMMONS Returned Executed. James M. LeBlanc served on 7/24/2014, answer due 8/14/2014; Louisiana Department of Public Safety and Corrections served on 7/24/2014, answer due 8/14/2014. (US Marshal, ) Modified on 8/5/2014 to edit text (JDL). (Entered: 08/05/2014)
Set/Reset Deadlines: James M. LeBlanc answer due 8/14/2014; Louisiana Department of Public Safety and Corrections answer due 8/14/2014. (JDL) (Entered: 08/05/2014)
10 SUMMONS Returned Executed. James M. LeBlanc served on 7/24/2014, answer due 8/14/2014. (US Marshal, ) (Entered: 08/05/2014)
11 This case is reassigned to Judge John W. deGravelles. Chief Judge Brian A. Jackson no longer assigned to the case.. Signed by Chief Judge Brian A. Jackson on 08/13/2014. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.)(NLT ADI, ) (Entered: 08/13/2014)
12 MOTION to Extend Time to File Status Report and to Continue Scheduling Conference by Trussell George. (Attachments: # 1 Attachment Proposed Order)(Lospennato, Ronald) Modified on 8/18/2014 to edit text (JDL). (Entered: 08/14/2014)
13 NOTICE TO COUNSEL: At the request of counsel for plaintiff, the Scheduling Conference is reassigned and set for 10/10/2014 at 10:00 AM in chambers before Magistrate Judge Stephen C. Riedlinger. Status Report due by 10/3/2014. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (BNW) (Entered: 08/14/2014)
14 Summons Submitted (Attachments: # 1 Attachment Summons−Risk Management)(Lospennato, Ronald) (Entered: 08/19/2014)
15 Summons Issued as to Louisiana Department of Public Safety and Corrections. Summons cannot be issued to State of Louisiana Office of Risk Management as they are not listed as a party in the case. (NOTICE: Counsel shall print and serve both the summons and all attachments in accordance with Federal Rule of Civil Procedure 4.) (JDL) (Entered: 08/20/2014)
16 MOTION for Extension of Time to File Answer by Whalen Gibbs, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Gerald Starks. (Hilburn, James) (Entered: 08/21/2014)
17 ORDER granting in part and denying in part 16 Motion for Extension of Time to File Responsive Pleadings Pursuant to Local Rule 7.6. Prusuant to Local Rule 7.6, defendants are granted a 21−day extension of time, until 9/4/2014, to respond to the Complaint. Defendants did not show good cause for the requested 30−day extension. Signed by Magistrate Judge Stephen C. Riedlinger on 8/21/2014. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 08/21/2014)
Set/Reset Deadlines: Whalen Gibbs answer due 9/4/2014; James M. LeBlanc answer due 9/4/2014; Louisiana Department of Public Safety and Corrections answer due 9/4/2014; Scott Tubbs answer due 9/4/2014. (JDL) (Entered: 08/22/2014)
18 SUMMONS Returned Executed. Scott Tubbs served on 8/13/2014, answer due 9/3/2014. (US Marshal, ) (Entered: 08/22/2014)
19 FRCP 12(b)(7) MOTION to Dismiss for Failure to Join an Indispensable Party Under Rules 19 and 5.1 by All Defendants. (Attachments: # 1 Memorandum in Support)(Hilburn, James) Modified on 9/4/2014 to edit text (JDL). (Entered: 09/03/2014)
20 MOTION to Enroll Elizabeth P. Everett as Additional Attorney by All Defendants. (Hilburn, James) (Entered: 09/05/2014)

Case: 3:14-cv-338 As of: 10/06/2016 12:18 PM CDT 7 of 17

09/05/2014 09/10/2014 09/18/2014 09/24/2014 09/24/2014 09/25/2014 10/03/2014 10/08/2014
10/10/2014
10/15/2014 10/15/2014

21 ORDER granting 20 Motion to Enroll as Additional Counsel. Added attorney Elizabeth Everett for Louisiana Department of Public Safety and Corrections, Whalen Gibbs, James M. LeBlanc, Gerald Starks, and Scott Tubbs. Signed by Magistrate Judge Stephen C. Riedlinger on 9/5/2014. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 09/05/2014)
22 NOTICE of Briefing Schedule on 19 FRCP 12(b)(7) MOTION to Dismiss for Failure to Join an Indispensable Party Under Rules 19 adn 5.1: Opposition to the motion shall be filed within 21 days from the filing of the motion. The mover may file a reply brief within 14 days of the filing of the opposition and shall be limited to a total of 10 pages. No motion for leave will be required.(This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.)(KDC) (Entered: 09/10/2014)
23 RESPONSE in Opposition to 19 FRCP 12(b)(7) MOTION to Dismiss for Failure to Join an Indispensable Party Under Rules 19 adn 5.1 filed by All Plaintiffs. (Attachments: # 1 Affidavit)(Lospennato, Ronald) (Entered: 09/18/2014)
24 AMENDED COMPLAINT against All Defendants, filed by Trussell George.(Lospennato, Ronald) (Entered: 09/24/2014)
25 Summons Submitted (Attachments: # 1 Summons−Kliebert, # 2 Summons−Vosburg, # 3 Summons−Brady)(Lospennato, Ronald) (Entered: 09/24/2014)
26 Summons Issued as to Eric Brady, Kathy Kliebert, Lousiana Department of Health and Hospitals, Charles P Vosburg. (NOTICE: Counsel shall print and serve both the summons and all attachments in accordance with Federal Rule of Civil Procedure 4.) (SMG) (Entered: 09/25/2014)
27 STATUS REPORT by All Plaintiffs. (Lospennato, Ronald) (Entered: 10/03/2014)
28 SCHEDULING ORDER (Including Pretrial Conference and Trial Dates): In accordance with FRCP 16(b), the following discovery deadlines are established. Amended Pleadings due by 11/29/2014. F.R.C.P. 26(a)(1) disclosures due by 10/31/2014. Discovery due by 5/30/2015. Plaintiff`s Expert Witness List due by 2/28/2015. Defendant`s Expert Witness List due by 4/1/2015. Plaintiff`s Expert Reports due by 7/31/2015. Defendant`s Expert Reports due by 8/29/2015. Discovery from Experts due by 10/15/2015. Motions shall be filed by 12/1/2015. Final Pretrial Order due by 4/1/2016. Motions In Limine shall be filed by 4/29/2016. Responses to Motions In Limine shall be filed by 5/20/2016. Affidavit of Settlement Efforts due by 5/27/2016. Final Pretrial Conference set for 4/21/2016 at 01:30 PM in chambers before Judge John W. deGravelles. Proposed voir dire questions, jury charges, jury interrogatories(verdict forms), and trial briefs due by 6/3/2016. Jury Trial set for 6/27/2016 − 7/1/2016 at 09:00 AM in Courtroom 1 before Judge John W. deGravelles. The scheduling conference set for 10/10/2014 is canceled. Signed by Magistrate Judge Stephen C. Riedlinger on 10/8/2014. (LLH) (Entered: 10/08/2014)
29 ORDER denying 19 Motion to Dismiss. F.R.C.P. 5.1 does not require service on the State Attorney General if the State of Louisiana or one of its agencies is a party. In addition Rule 5.1 does not require that the State Attorney General be made a party but only that he be notified of the proceeding and given an opportunity to intervene. Further, it appears that the Attorney General has now been notified and so this issue is now moot. Signed by Judge John W. deGravelles on 10/10/2014. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (KDC) (Entered: 10/10/2014)
30 MOTION for Extension of Time to File Answer by Eric Brady, Kathy Kliebert, Lousiana Department of Health and Hospitals, Charles P Vosburg. (Attachments: # 1 Order)(Pantaleo, Lindsay) (Entered: 10/15/2014)
31 ORDER granting 30 Ex Parte Motion for Extension of Time to File Responsive Pleading Pursuant to LR 7.6. Responsive pleading to 24 First Amended Complaint by Eric Brady, Kathy Kliebert, Lousiana Department of Health and Hospitals and Charles P. Vosburg due by 11/5/2014. Signed by Magistrate Judge Stephen C. Riedlinger on 10/15/2014. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 10/15/2014)

Case: 3:14-cv-338 As of: 10/06/2016 12:18 PM CDT 8 of 17

10/20/2014 10/20/2014 11/05/2014 11/05/2014 11/24/2014 11/28/2014 12/01/2014 12/10/2014 12/11/2014 12/11/2014
12/23/2014 12/23/2014 01/14/2015 01/15/2015 01/15/2015

32 ANSWER to 1 Complaint, by Whalen Gibbs, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Gerald Starks, Scott Tubbs.(Everett, Elizabeth) (Entered: 10/20/2014)
33 ANSWER to 24 First Amended Complaint by Whalen Gibbs, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Gerald Starks, Scott Tubbs.(Everett, Elizabeth) Modified on 10/21/2014 to edit text (JDL). (Entered: 10/20/2014)
34 MOTION to Dismiss for Failure to State a Claim by Charles P Vosburg. (Attachments: # 1 Memorandum in Support, # 2 Proposed Pleading; Order)(Everett, Elizabeth) (Entered: 11/05/2014)
35 ANSWER to 24 First Amended Complaint by Eric Brady, Kathy Kliebert, Lousiana Department of Health and Hospitals.(Everett, Elizabeth) Modified on 11/7/2014 to edit text (LLH). (Entered: 11/05/2014)
36 MEMORANDUM in Opposition to 34 MOTION to Dismiss for Failure to State a Claim filed by Trussell George. (Lospennato, Ronald) (Entered: 11/24/2014)
37 MOTION to File Second Amended Complaint by All Plaintiffs. (Attachments: # 1 Proposed Pleading;, # 2 Attachment)(Lospennato, Ronald) Modified to edit text on 12/1/2014 (BCL). (Entered: 11/28/2014)
MOTION(S) REFERRED: 37 Second MOTION to Amend Complaint. This motion is now pending before the USMJ. (BCL) (Entered: 12/01/2014)
38 MOTION for Leave to File Reply Memorandum by Charles P Vosburg. (Attachments: # 1 Proposed Pleading; Reply Memorandum)(Everett, Elizabeth) Modified to edit text on 12/11/2014 (SMG). (Entered: 12/10/2014)
39 ORDER granting 38 MOTION for Leave to File Reply Memorandum filed by Charles P Vosburg. Signed by Judge John W. deGravelles on 12/11/14. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (KDC) (Entered: 12/11/2014)
40 Reply MEMORANDUM in Support of 34 MOTION to Dismiss for Failure to State a Claim filed by Eric Brady, Whalen Gibbs, Kathy Kliebert, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Lousiana Department of Health and Hospitals, Gerald Starks, Scott Tubbs, Charles P Vosburg. (NLT) (Entered: 12/12/2014)
41 ORDER granting 37 Plaintiffs' Motion for Leave to File Second Amended Complaint. No opposition has been filed. Signed by Magistrate Judge Stephen C. Riedlinger on 12/23/2014. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 12/23/2014)
42 Second AMENDED COMPLAINT against Eric Brady, Whalen Gibbs, Kathy Kliebert, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Lousiana Department of Health and Hospitals, Gerald Starks, Scott Tubbs, Charles P Vosburg, filed by Trussell George.(NLT) (Entered: 12/23/2014)
43 ANSWER to 42 Second Amended Complaint by Eric Brady, Whalen Gibbs, Kathy Kliebert, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Lousiana Department of Health and Hospitals, Gerald Starks, Scott Tubbs.(Everett, Elizabeth) Modified on 1/14/2015 (LLH). (Entered: 01/14/2015)
44 MOTION for Beth P. Everett to Withdraw as Attorney by Eric Brady, Whalen Gibbs, Kathy Kliebert, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Lousiana Department of Health and Hospitals, Gerald Starks, Scott Tubbs, Charles P Vosburg. (Everett, Elizabeth) (Entered: 01/15/2015)
45 ORDER granting 44 Motion to Withdraw as Counsel of Record and Designate Trial Counsel. Attorney Beth P. Everett is withdrawn as attorney, and James L. Hilburn is designated as trial (lead) attorney, for the Louisiana Department of Corrections, Secretary James M. Leblanc, Assistant Secretary Whalen Gibbs, Director Gerald Starks, Agent Scott Tubbs, the Louisiana Department of Health and Hospitals, Kathy Kliebert and Eric Brady. Signed by Magistrate Judge Stephen C. Riedlinger on 1/15/2015. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document

Case: 3:14-cv-338 As of: 10/06/2016 12:18 PM CDT 9 of 17

01/15/2015
01/23/2015 01/23/2015
03/18/2015 03/23/2015 03/25/2015 04/29/2015 05/01/2015 05/01/2015 05/01/2015 05/06/2015
05/06/2015 05/14/2015
05/14/2015 05/15/2015 05/15/2015 05/15/2015 05/15/2015

associated with this entry.) (Riedlinger, Stephen) (Entered: 01/15/2015)
46 ORDER: as to 44 MOTION to Withdraw as Counsel of Record. Attorney Beth P. Everett advised that the motion inadvertently omitted defendant Charles P. Vosburg. The 44 MOTION to Withdraw as Counsel of Record is also granted at to defendant Charles P. Vosberg. Signed by Magistrate Judge Stephen C. Riedlinger on 1/15/2015. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.)(Riedlinger, Stephen) (Entered: 01/15/2015)
47 MOTION to Enroll Kathryn Fernandez as Additional Attorney by Trussell George. (Attachments: # 1 Attachment)(Lospennato, Ronald) (Entered: 01/23/2015)
48 ORDER granting 47 Plaintiff's Motion to Add Counsel. Added attorney Kathryn E. Fernandez for Trussell George. Signed by Magistrate Judge Stephen C. Riedlinger on 1/23/2015. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 01/23/2015)
49 RETURN OF SERVICE of subpoena(s) executed upon Louisiana Department of Health and Hospitals on 3/16/15 by Certified Mail (Hilburn, James) (Entered: 03/18/2015)
50 RETURN OF SERVICE of subpoena(s) executed upon Louisiana Department of Public Safety and Corrections on 3/17/15 by Certified Mail (Hilburn, James) (Entered: 03/23/2015)
51 RETURN OF SERVICE of subpoena(s) executed upon East Baton Rouge Parish Prison, Medical Services Division on 3/18/15 by Certified Mail (Hilburn, James) (Entered: 03/25/2015)
52 RULING AND ORDER denying 34 Motion to Dismiss for Failure to State a Claim, filed by Defendant Charles P Vosburg, Ph.D. Signed by Judge John W. deGravelles on 4/29/2015. (LLH) (Entered: 04/29/2015)
53 RETURN OF SERVICE of subpoena(s) executed upon D'Hemecourt Community Home on 4/29/15 by Certified Mail (Hilburn, James) (Entered: 05/01/2015)
54 RETURN OF SERVICE of subpoena(s) executed upon Stern Group Home on 4/29/15 by Certified Mail (Hilburn, James) (Entered: 05/01/2015)
55 RETURN OF SERVICE of subpoena(s) executed upon Lakeside Home on 4/29/15 by Certified Mail (Hilburn, James) (Entered: 05/01/2015)
56 ANSWER to 24 First Amended Complaint by Whalen Gibbs, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Gerald Starks, Scott Tubbs, Charles P Vosburg.(Hilburn, James) Modified to edit text on 5/6/2015 (BCL). (Entered: 05/06/2015)
57 ANSWER to 42 Second Amended Complaint by Charles P Vosburg.(Hilburn, James) Modified to edit text on 5/6/2015 (BCL). (Entered: 05/06/2015)
58 MOTION for Appointment of Guardian Ad Litem by All Plaintiffs. (Attachments: # 1 Memorandum in Support, # 2 Attachment Proposed Order, # 3 Affidavit Letecia Walker, # 4 Exhibit Dr. O'Leary)(Lospennato, Ronald) Modified on 5/15/2015 to edit text (LLH). (Entered: 05/14/2015)
59 MOTION for Extension of Discovery Deadlines by All Plaintiffs. (Attachments: # 1 Attachment Proposed Order)(Lospennato, Ronald) (Entered: 05/14/2015)
MOTION(S) REFERRED: 58 MOTION Appointment of Guardian Ad Litem . This motion is now pending before the USMJ. (LLH) (Entered: 05/15/2015)
Motions No Longer Referred: 58 MOTION Appointment of Guardian Ad Litem . This motion is now pending before the USDJ. (NLT) (Entered: 05/15/2015)
MOTION(S) REFERRED: 59 MOTION for Extension of Discovery Deadlines . This motion is now pending before the USMJ. (NLT) (Entered: 05/15/2015)
60 Amended Consent MOTION for Modification of Scheduling Order by All Plaintiffs. (Attachments: # 1 Attachment Proposed Order)(Lospennato, Ronald) Modified on

Case: 3:14-cv-338 As of: 10/06/2016 12:18 PM CDT 10 of 17

05/18/2015 05/19/2015
05/19/2015
05/20/2015 07/15/2015 07/15/2015 07/16/2015 07/17/2015 07/20/2015 07/20/2015 07/23/2015 11/02/2015
11/03/2015 11/03/2015
01/06/2016

5/18/2015 to edit text(LLH). (Entered: 05/15/2015)
MOTION(S) REFERRED: 60 MOTION for Extension of Discovery Deadlines . This motion is now pending before the USMJ. (LLH) (Entered: 05/18/2015)
61 AMENDED SCHEDULING ORDER granting 60 Amended Consent MOTION for Modification of Scheduling Order. Discovery due by 7/31/2015. Plaintiff`s Expert Reports due by 9/30/2015. Defendant`s Expert Reports due by 10/30/2015. Discovery from Experts due by 12/15/2015. Dispositive and Daubert Motions shall be filed by 1/16/2016. Signed by Magistrate Judge Stephen C. Riedlinger on 5/18/2015. (LLH) (Entered: 05/19/2015)
62 ORDER finding as moot 59 Consent Motion for Modification of Scheduling Order. The 60 Amended Consent Motion for Modification of Scheduling Order was granted. Signed by Magistrate Judge Stephen C. Riedlinger on 5/19/2015. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 05/19/2015)
63 ORDER granting 58 Motion for Appointment of Guardian Ad Litem. Ms. Letetica Walker is appointed to act as Mr. Trussell George's Guardian Ad Litem in this matter. Signed by Judge John W. deGravelles on 05/20/2015. (BCL) Modified to edit text on 5/20/2015 (BCL). (Entered: 05/20/2015)
64 RETURN OF SERVICE of subpoena(s) executed upon Compass Behavioral Center, LLC on 07/13/2015 by Certified Mail (Cody, Jeffrey) (Entered: 07/15/2015)
65 MOTION to Enroll Eric Foley as Additional Attorney by All Plaintiffs. (Attachments: # 1 Proposed Pleading; Proposed Order)(Schwartzmann, Katharine) (Entered: 07/15/2015)
66 ORDER granting 65 Plaintiff's Motion to Add Counsel. Added attorney Eric Andrew Foley for Trussell George, Jr. Signed by Magistrate Judge Stephen C. Riedlinger on 7/16/2015. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Riedlinger, Stephen) (Entered: 07/16/2015)
67 RETURN OF SERVICE of subpoena(s) executed upon Generations Behavioral Health on 07/13/2015 by Certified Mail (Cody, Jeffrey) (Entered: 07/17/2015)
68 RETURN OF SERVICE of subpoena(s) executed upon Seaside Health System, LLC on 07/13/2015 by Certified Mail (Cody, Jeffrey) (Entered: 07/20/2015)
69 RETURN OF SERVICE of subpoena(s) executed upon Beacon Behavioral Health − Baton Rouge, Inc. on 07/13/2015 by Certified Mail (Cody, Jeffrey) (Entered: 07/20/2015)
70 RETURN OF SERVICE of subpoena(s) executed upon St. James Behavioral Health Hospital, Inc. on 07/20/2015 by Certified Mail (Cody, Jeffrey) (Entered: 07/23/2015)
71 Unopposed MOTION to Extend Deadline to Complete Expert Discovery and Deadlines file Daubert/Dispositive Motions by Eric Brady, Whalen Gibbs, Kathy Kliebert, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Lousiana Department of Health and Hospitals, Gerald Starks, Scott Tubbs, Charles P Vosburg. (Hilburn, James) Modified on 11/3/2015 to edit text (ELW). (Entered: 11/02/2015)
MOTION(S) REFERRED: 71 Unopposed MOTION for Extension of Time to Complete Expert Discovery and to file Daubert/Dispositive Motions. This motion is now pending before the USMJ. (ELW) (Entered: 11/03/2015)
72 AMENDED SCHEDULING ORDER granting in part 7 Unopposed MOTION to Extend Deadline to Complete Expert Discovery and Deadlines file Daubert/Dispositive Motions. Discovery from Experts due by 12/30/2015. Dispositive and Daubert Motions shall be filed by 2/1/2016. Signed by Magistrate Judge Stephen C. Riedlinger on 11/3/2015. (LLH) (Entered: 11/03/2015)
73 NOTICE: Pursuant to General Order 2016−02, this case is reassigned from Magistrate Judge Stephen C. Riedlinger to Magistrate Judge Erin Wilder−Doomes. Signed by Chief Judge Brian A. Jackson on 01/04/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.)(NLT ADI, ) (Entered:

Case: 3:14-cv-338 As of: 10/06/2016 12:18 PM CDT 11 of 17

01/08/2016 02/01/2016 02/01/2016 02/01/2016
02/01/2016 02/02/2016
02/02/2016
02/02/2016 02/02/2016 02/02/2016 02/05/2016 02/05/2016 02/08/2016

01/06/2016)
Case reassigned to Magistrate Judge Richard L. Bourgeois, Jr.. Magistrate Erin Wilder−Doomes no longer assigned to the case. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (NLT) (Entered: 01/08/2016)
74 MOTION for Summary Judgment by All Defendants. (Attachments: # 1 Exhibit Exhibits A−G, # 2 Statement of Undisputed Facts By Defendants, # 3 Memorandum in Support of MSJ)(Hilburn, James) (Entered: 02/01/2016)
75 MOTION for Leave to File to Exceed Page Limitation by All Defendants. (Attachments: # 1 Memorandum in Support Defendants' MSJ)(Hilburn, James) Modified on 2/2/2016 to edit text (LLH). (Entered: 02/01/2016)
76 MOTION for Summary Judgment by Trussell George. (Attachments: # 1 Statement of Undisputed Facts Undisputed Facts, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5, # 7 Exhibit Exhibit 6, # 8 Exhibit Exhibit 7, # 9 Exhibit Exhibit 8, # 10 Exhibit Exhibit 9, # 11 Exhibit Exhibit 10, # 12 Exhibit Exhibit 12, # 13 Exhibit Exhibit 13, # 14 Exhibit Exhibit 14, # 15 Exhibit Exhibit 15a, # 16 Exhibit Exhibit 15b, # 17 Exhibit Exhibit 16, # 18 Exhibit Exhibit 17, # 19 Exhibit Exhibit 11a, # 20 Exhibit Exhibit 11b, # 21 Memorandum in Support Memo in Support)(Lospennato, Ronald) (Entered: 02/01/2016)
77 MOTION for Leave to File Excess Pages by Trussell George. (Attachments: # 1 Proposed Pleading; Memo In Support of SJ)(Lospennato, Ronald) (Entered: 02/01/2016)
78 NOTICE of Briefing Schedule on 76 MOTION for Summary Judgment , 74 MOTION for Summary Judgment : Opposition to the motion shall be filed within 21 days from the filing of the motion and shall not exceed 10 pages excluding attachments. The mover may file a reply brief within 14 days of the filing of the opposition and shall be limited to a total of 5 pages. No motion for leave will be required. Sur−Reply briefs will be permitted only with leave of Court for extraordinary reasons supported by sufficient facts. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.)(KDC) (Entered: 02/02/2016)
79 ORDER granting 75 MOTION for Leave to File to Exceed Page Limitation filed by Whalen Gibbs, Scott Tubbs, Eric Brady, Kathy Kliebert, Lousiana Department of Health and Hospitals, James M. LeBlanc, Charles P Vosburg, Louisiana Department of Public Safety and Corrections, Gerald Starks. Signed by Judge John W. deGravelles on 02/02/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (KDC) (Entered: 02/02/2016)
80 ORDER granting 77 Motion for Leave to File Excess FOR HIS MEMORANDUM IN SUPPORT OF HIS MOTION FOR PARTIAL SUMMARY JUDGMENT. Signed by Judge John W. deGravelles on 02/02/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (KDC) (Entered: 02/02/2016)
81 MEMORANDUM in Support of 74 MOTION for Summary Judgment filed by Eric Brady, Whalen Gibbs, Kathy Kliebert, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Lousiana Department of Health and Hospitals, Gerald Starks, Scott Tubbs, Charles P Vosburg. (LLH) (Entered: 02/03/2016)
82 MEMORANDUM in Support of 76 MOTION for Summary Judgment filed by Trussell George. (LLH) (Entered: 02/03/2016)
83 MOTION to Add Counsel by All Plaintiffs. (Attachments: # 1 Order on Motion to Enroll)(Fernandez, Kathryn) Modified on 2/8/2016 to edit text (ELW). (Entered: 02/05/2016)
84 MOTION to Enroll Laura Thornton as Additional Attorney by All Plaintiffs. (Attachments: # 1 Order on Motion to Enroll)(Fernandez, Kathryn) Modified on 2/8/2016 duplicate of document/motion #83(ELW). (Entered: 02/05/2016)
MOTION(S) REFERRED: 83 MOTION to Enroll Laura Thornton as Additional Attorney . This motion is now pending before the USMJ. (ELW) (Entered:

Case: 3:14-cv-338 As of: 10/06/2016 12:18 PM CDT 12 of 17

02/12/2016 02/22/2016
02/22/2016 02/24/2016 02/24/2016 02/24/2016 02/24/2016 02/26/2016 02/29/2016
02/29/2016 03/07/2016 03/07/2016

02/08/2016)
85 ORDER granting 83 Motion to Enroll Additional Attorney. Added attorney Laura Lee Thornton as additional counsel for Plaintiff Trussell George. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 2/12/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (JSL) (Entered: 02/12/2016)
86 Ex Parte MOTION to Exceed Page Limit for Memorandum in Opposition to Plaintiff's Motion for Partial Summary Judgment by Eric Brady, Whalen Gibbs, Kathy Kliebert, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Lousiana Department of Health and Hospitals, Gerald Starks, Scott Tubbs, Charles P Vosburg. (Attachments: # 1 Proposed Pleading; Memorandum in Opposition to Plaintiff's Motion for Partial Summary Judgment)(Hilburn, James) Modified on 2/23/2016 to edit text (LLH). (Entered: 02/22/2016)
87 MOTION for Leave to File Excess pages for his Memorandum in Support of his Motion for Partial Summary Judgment by All Plaintiffs. (Attachments: # 1 Memorandum in Support Opposition to Summary Judgment, # 2 Statement of Undisputed Facts re Summary Judgment)(Lospennato, Ronald) Modified on 2/23/2016 to edit text (ELW). (Entered: 02/22/2016)
88 ORDER granting 86 Motion for Leave to File Excess Pages for their Memorandum in Opposition to Plaintiff's Motion for Partial Summary Judgment as set forth in Local Rule 7(g) and that the page limit for that memorandum is enlarged to seventeen (17) pages. Signed by Judge John W. deGravelles on 2/24/2016. (LLH) (Entered: 02/24/2016)
89 MEMORANDUM in Opposition to 76 MOTION for Summary Judgment filed by Eric Brady, Whalen Gibbs, Kathy Kliebert, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Lousiana Department of Health and Hospitals, Gerald Starks, Scott Tubbs, Charles P Vosburg. (LLH) (Entered: 02/24/2016)
90 ORDER granting 87 MOTION for Leave to File Opposition to Summary Judgment in Excess of Page Limit into the record of the instant matter. Signed by Judge John W. deGravelles on 2/24/2016. (LLH) (Entered: 02/24/2016)
91 MEMORANDUM in Opposition to 74 MOTION for Summary Judgment filed by Trussell George. (Attachments: # 1 Statement of Undisputed Facts)(LLH) (Entered: 02/24/2016)
92 MOTION for Leave to File Defendants' Response to Plaintiff's Statement of Undisputed Facts by All Defendants. (Attachments: # 1 Proposed Pleading; Defendants' Response to Plaintiff's Statement of Undisputed Facts, # 2 Exhibit Exhibits A & B to Defendants' Response to Plaintiff's Statement of Undisputed Facts)(Hilburn, James) (Entered: 02/26/2016)
93 ORDER: Defendants, Louisiana Department of Public Safety and Corrections; Secretary James M. LeBlanc; Assistant Secretary Whalen Gibbs; Director Gerald Starks; Agent Scott Tubbs; Louisiana Department of Health and Hospitals; Secretary Kathy Kliebert; District Forensic Coordinator Eric Brady, and Charles P. Vosburg, PhD, be and are hereby GRANTED leave to file Defendants' Response to Plaintif's Statement of Undisputed Facts. Signed by Judge John W. deGravelles on 2/29/2016. (BCL) (Entered: 02/29/2016)
94 RESPONSE to Plaintiff's Statement of Undisputed Facts filed by Eric Brady, Whalen Gibbs, Kathy Kliebert, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Lousiana Department of Health and Hospitals, Gerald Starks, Scott Tubbs, Charles P Vosburg. (Attachments: # 1 Exhibit)(BCL) (Entered: 02/29/2016)
95 MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Proposed Pleading; Reply Brief in Support of Defendants' Motion for Summary Judgment)(Hilburn, James) (Entered: 03/07/2016)
96 REPLY to 89 Memorandum in Opposition to 76 MOTION for Summary Judgment filed by Trussell George. (Attachments: # 1 Exhibit Plaintiff's Conditional Release Order)(Foley, Eric) Modified on 3/8/2016 to edit text (LLH). (Entered: 03/07/2016)

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97 ORDER granting 95 Motion for Leave to File Excess Pages. Signed by Judge John W. deGravelles on 03/08/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (KDC) (Entered: 03/08/2016)
98 REPLY Brief in Support of 74 MOTION for Summary Judgment filed by Eric Brady, Whalen Gibbs, Kathy Kliebert, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Lousiana Department of Health and Hospitals, Gerald Starks, Scott Tubbs, Charles P Vosburg. (LLH) (Entered: 03/09/2016)
99 Unopposed MOTION to Extend Date for Pretrial Order and Continue the Final Pretrial Conference by Trussell George. (Attachments: # 1 Attachment Proposed Order)(Lospennato, Ronald) Modified on 4/5/2016 to edit text (ELW). (Entered: 04/01/2016)
100 ORDER granting 99 Motion to Extend the Date for Filing the Pretrial Order and Continue the Final Pretrial Conference. Proposed Pretrial Order due by 4/28/2016. Pretrial Conference is rescheduled for 5/12/2016 at 02:30 PM in chambers before Judge John W. deGravelles. Signed by Judge John W. deGravelles on 4/4/2016. (LLH) (Entered: 04/04/2016)
101 Notice to Counsel(TIME CHANGE ONLY):Pretrial Conference set for 5/12/2016 at 11:00 AM in chambers before Judge John W. deGravelles.

Evidence, in electronic format, shall be provided in accordance with Local Rule 79 and Administrative Procedures.

04/28/2016 04/28/2016 04/29/2016 05/03/2016 05/12/2016
05/12/2016 05/20/2016

(This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (KDC) (Entered: 04/18/2016)
102 Unopposed MOTION for Extension of Time to File Motions in Limine and Responses by Trussell George. (Thornton, Laura) Modified on 4/29/2016 to edit docket text(TNB). (Entered: 04/28/2016)
103 Proposed Pretrial Order and Opposition to Pretrial Order by Trussell George (For your free look at document, enter your ECF login and pw to confirm your right to view). (Attachments: # 1 Attachment, # 2 Attachment, # 3 Attachment)(Lospennato, Ronald) (Entered: 04/28/2016)
104 ORDER granting 102 MOTION for Extension of Time to File Motions in Limine and Responses filed by Trussell George. Motions In Limine shall be filed by 5/20/2016. Responses to Motions In Limine shall be filed by 6/9/2016. Signed by Judge John W. deGravelles on 4/29/2016. (JDL) (Entered: 04/29/2016)
105 NOTICE of Hearing on Motion 76 MOTION for Summary Judgment , 74 MOTION for Summary Judgment :Motion Hearing set for 6/14/2016 at 1:30 PM in Courtroom 1 before Judge John W. deGravelles.(This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (KDC) (Entered: 05/03/2016)
106 Minute Entry for proceedings held before Judge John W. deGravelles: Final Pretrial Conference held on 5/12/2016. The parties present signed the attached attendance sheet. The hearing on the cross motions for summary judgment (Docs. 74 & 76), presently set for 6/14/2016 is hereby reassigned for 6/8/2016 at 9:30 a.m. in chambers of the undersigned. Jury Trial set for 6/27/2016 through 6/30/2016 at 09:00 AM in Courtroom 1 before Judge John W. deGravelles. Status Conference set for 6/27/2016 at 08:30 AM in Courtroom 1 before Judge John W. deGravelles. Motion Hearing set for 6/8/2016 at 09:30 AM in chambers before Judge John W. deGravelles. Bench Book of Exhibits shall be filed on or before 6/21/2016. A Final Witness List and Exhibit list due by 6/21/2016. Motions In Limine shall be filed by 5/20/2016. Responses to Motions In Limine shall be filed by 6/9/2016. Joint jury instructions, voir dire, verdict forms, and trial briefs due by 6/3/2016. Affidavit of Settlement Efforts shall be filed by 5/27/2016. (Court Reporter In Chambers.) (JDL) Modified on 5/16/2016 (JDL). (Entered: 05/16/2016)
Set/Reset Deadlines/Hearings (JDL) (Entered: 05/16/2016)
107 MOTION in Limine by All Defendants. (Attachments: # 1 Memorandum in Support of Motion in Limine, # 2 Exhibit Order, # 3 Exhibit 1, Deposition transcript of Delaney Smith, M.D.)(Hilburn, James) (Entered: 05/20/2016)

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108 AFFIDAVIT of Settlement Efforts by Trussell George. (Lospennato, Ronald) (Entered: 05/27/2016)
109 AFFIDAVIT of Settlement Efforts by All Defendants. (Cody, Jeffrey) (Entered: 05/27/2016)
110 MOTION Testimony by Video Conference by Trussell George. (Attachments: # 1 Attachment Proposed Order)(Lospennato, Ronald) (Entered: 06/01/2016)
111 MOTION for Extension of Time Jury Instruction, Verdict Forms, Trial Brief by Trussell George. (Attachments: # 1 Attachment Proposed Order)(Lospennato, Ronald) (Entered: 06/03/2016)
112 ORDER denying 74 Motion for Summary Judgment; denying 76 Motion for Summary Judgment. Written reasons will be issued. Signed by Judge John W. deGravelles on 06/06/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (KDC) (Entered: 06/06/2016)
113 Notice to Counsel: In light of the Court's ruling on the motions for summary judgment in this matter, oral argument set for 6/8/2016 is cancelled.

Evidence, in electronic format, shall be provided in accordance with Local Rule 79 and Administrative Procedures.

06/06/2016 06/06/2016 06/09/2016 06/09/2016 06/09/2016 06/09/2016 06/09/2016 06/09/2016

(This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (KDC) (Entered: 06/06/2016)
114 ORDER granting 110 Motion for Leave to Take the Testimony of Dr. Delaney Smith by Video Conference during the Trial which is scheduled to begin on 6/27/2016. Signed by Judge John W. deGravelles on 6/6/2016. (LLH) (Entered: 06/06/2016)
115 ORDER: 111 GRANTED MOTION for Extension of Time Jury Instruction, Verdict Forms, Trial Brief filed by Trussell George. Joint jury instructions, voir dire, verdict forms, and trial briefs due by 6/9/2016. Signed by Judge John W. deGravelles on 06/06/2016. (ELW) (Entered: 06/06/2016)
116 RESPONSE in Opposition to 107 MOTION in Limine to Exclude Plaintiff's Expert Witness Dr. Delaney Smith filed by All Plaintiffs. (Attachments: # 1 Exhibit Dr. Smith's expert report, # 2 Exhibit Dr. Smith's deposition testimony, # 3 Exhibit Dr. Ginzburg's expert report, # 4 Exhibit Dr. Ginzburg's deposition testimony)(Thornton, Laura) (Entered: 06/09/2016)
117 Plaintiff's PROPOSED JURY VERDICT FORM by Trussell George.. (Attachments: # 1 Attachment Trial Brief, # 2 Attachment Voir Dire)(Lospennato, Ronald) Modified on 6/10/2016 to edit text (TNB). (Entered: 06/09/2016)
118 Proposed Jury Instructions by Eric Brady, Whalen Gibbs, Kathy Kliebert, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Lousiana Department of Health and Hospitals, Gerald Starks, Scott Tubbs, Charles P Vosburg. (Cody, Jeffrey) (Entered: 06/09/2016)
119 Defendants' PROPOSED JURY VERDICT Interrogatories by Eric Brady, Whalen Gibbs, Kathy Kliebert, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Lousiana Department of Health and Hospitals, Gerald Starks, Scott Tubbs, Charles P Vosburg.. (Cody, Jeffrey) Modified on 6/10/2016 to edit text (TNB). (Entered: 06/09/2016)
120 Defendants' Proposed Voir Dire Questions by Eric Brady, Whalen Gibbs, Kathy Kliebert, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Lousiana Department of Health and Hospitals, Gerald Starks, Scott Tubbs, Charles P Vosburg. (Hilburn, James) Modified on 6/10/2016 to edit text (TNB). (Entered: 06/09/2016)
121 Defendants' Pre−Trial TRIAL BRIEF by Eric Brady, Whalen Gibbs, Kathy Kliebert, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Lousiana Department of Health and Hospitals, Gerald Starks, Scott Tubbs, Charles P Vosburg. (Cody, Jeffrey) Modified on 6/10/2016 to edit text (TNB). (Entered: 06/09/2016)

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122 ORDER denying 107 Motion in Limine to Exclude Plaintiff's Expert Witness Delany M. Smith, M.D. Signed by Judge John W. deGravelles on 06/20/2016. (ELW) (Entered: 06/20/2016)
123 Minute Entry for proceedings held before Judge John W. deGravelles: Telephone Status Conference held on 6/21/2016. Pretrial matters were discussed. (LLH) (Entered: 06/22/2016)
124 ORDER AND RULING as to 74 , 76 MOTIONS for Summary Judgment. Signed by Judge John W. deGravelles on 6/23/2016. (LLH) (Entered: 06/23/2016)
125 Witness List by Trussell George. (For your free look at document, enter your ECF login and pw to confirm your right to view). (Lospennato, Ronald) (Entered: 06/24/2016)
126 Witness List by Eric Brady, Whalen Gibbs, Kathy Kliebert, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Lousiana Department of Health and Hospitals, Gerald Starks, Scott Tubbs, Charles P Vosburg. (For your free look at document, enter your ECF login and pw to confirm your right to view). (Hilburn, James) (Entered: 06/24/2016)
127 NOTICE OF APPEAL to the USCA for the 5th Circuit of 124 Order by Eric Brady, Whalen Gibbs, Gerald Starks, Scott Tubbs, Charles P Vosburg. Filing fee $ 505, receipt number 053N−1427822. (Cody, Jeffrey) (Entered: 06/24/2016)
128 MOTION to Stay with Request for Expedited Consideration by Eric Brady, Whalen Gibbs, Gerald Starks, Scott Tubbs, Charles P Vosburg. (Attachments: # 1 Memorandum in Support)(Cody, Jeffrey). Added MOTION for Expedited Hearing on 6/27/2016 (SGO). (Entered: 06/24/2016)
129 MOTION to Voluntarily Dismiss Claims For Damages Against Defendants' Whalen Gibbs, Geral Starks, Charles Vosburg, Eric Brady and Scott Tubbs In Their Individual Capacities by Trussell George. (Attachments: # 1 Attachment Proposed Order)(Lospennato, Ronald) Modified on 6/27/2016 to edit text (TNB). (Entered: 06/25/2016)
130 Revised Proposed Jury Verdict Form by Trussell George. (Fernandez, Kathryn) Modified to edit text on 6/27/2016 (SGO). (Entered: 06/26/2016)
131 Revised Proposed Jury Verdict Form by Trussell George. (Fernandez, Kathryn) Modified to edit text on 6/27/2016 (SGO). (Entered: 06/26/2016)
132 Proposed Additional Jury Instructions by Eric Brady, Whalen Gibbs, Kathy Kliebert, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Lousiana Department of Health and Hospitals, Gerald Starks, Scott Tubbs, Charles P Vosburg. (Cody, Jeffrey) Modified to edit text on 6/27/2016 (SGO). (Entered: 06/26/2016)
133 PROPOSED JURY VERDICT Interrogatories by Eric Brady, Whalen Gibbs, Kathy Kliebert, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Lousiana Department of Health and Hospitals, Gerald Starks, Scott Tubbs, Charles P Vosburg.. (Cody, Jeffrey) Modified to edit text on 6/27/2016 (SGO). (Entered: 06/26/2016)
134 Unopposed MOTION to Dismiss Appeal by Eric Brady, Whalen Gibbs, Gerald Starks, Scott Tubbs, Charles P Vosburg. (Cody, Jeffrey) (Entered: 06/26/2016)
135 Revised Proposed Jury Instructions by Trussell George. (Hahn, Ellen) Modified to edit text on 6/27/2016 (SGO). (Entered: 06/26/2016)
136 ORDER: All Witnesses shall be sequestered during the course of this trial. Signed by Judge John W. deGravelles on 6/27/2016. (LLH) Modified on 7/5/2016 to remove blank page (LLH). (Entered: 06/27/2016)
138 Minute Entry for proceedings held before Judge John W. deGravelles: Jury Trial held on 6/27/2016. Pursuant to Local Rules, offering parties shall retain custody of exhibits. (Court Reporter G. Delatte−Richard.) (SGO) (Entered: 06/30/2016)
139 Minute Entry for proceedings held before Judge John W. deGravelles: Jury Trial held on 6/28/2016. Jury Trial continues. Stipulated Statement of Facts, Plaintiff's Exhibit

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06/29/2016
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24, are read to the jury and admitted into evidence. Testimony continues. Oral motion to strike juror #4 GRANTED. Plaintiff rest. The jury is excused until 9:00 a.m. on Wednesday, 6/29/2016. (Court Reporter G. Delatte−Richard.) Pursuant to Local Rules, offering parties shall retain custody of exhibits. (LLH) (Entered: 07/01/2016)
145 Minute Entry for proceedings held before Judge John W. deGravelles. Jury Trial held on 6/29/2016. For oral reasons assigned, the Rule 50 motion is DENIED. Witness sworn and testifies. Rebuttals are heard. Jury charge conference was held. Counsel presented closing arguments. Jury renders a verdict. (Court Reporter G. Delatte−Richard.) (ELW) (Main Document 145 replaced on 7/7/2016) (ELW). Modified on 7/7/2016 to replace with corrected document (ELW). (Entered: 07/06/2016)
137 ELECTRONIC EXHIBITS for hearing dated 6/27/2016. (SGO) (Entered: 06/30/2016)
140 TRANSCRIPT REQUEST by Trussell George for proceedings held on June 27−29, 2016 before Judge John W. deGravelles.. (Lospennato, Ronald) (Main Document 140 replaced on 7/5/2016 to flatten pages.) (EDC). Modified on 7/5/2016 (EDC). (Entered: 07/04/2016)
141 SEALED DOCUMENT Jury Note #5 (SGO) (Entered: 07/06/2016)
142 SEALED Jury Verdict Form (SGO) (Entered: 07/06/2016)
143 Jury Notes. (ELW) (Entered: 07/06/2016)
144 JURY VERDICT FORM. (ELW) (Entered: 07/06/2016)
146 TRANSCRIPT REQUEST by Eric Brady, Whalen Gibbs, Kathy Kliebert, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Lousiana Department of Health and Hospitals, Gerald Starks, Scott Tubbs, Charles P Vosburg for proceedings held on 6/27/2016−6/29/2016 before Judge John W. deGravelles.. (Cody, Jeffrey) Modified on 7/8/2016 Transcript Order form forwarded to NLT via email (TNB). (Entered: 07/07/2016)
147 MANDATE of USCA as to 127 Notice of Appeal to the USCA for the 5th Circuit filed by Whalen Gibbs, Charles P Vosburg, Scott Tubbs, Eric Brady, Gerald Starks. Under FED R. APP. P. 42(b), the appeal is dismissed as of 7/8/2016, pursuant to appellants motion. (LLH) (Entered: 07/08/2016)
148 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings before Judge John W. deGravelles held on June 27, 2016. Court Reporter: Gina Delatte−Richard. Phone Number: 225−389−3564.

NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.lamd.uscourts.gov.

08/08/2016

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 8/26/2016. Redacted Transcript Deadline set for 9/6/2016. Release of Transcript Restriction set for 11/3/2016. (Delatte−Richard, Gina) (Entered: 08/08/2016)
149 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings before Judge John W. deGravelles held on June 28, 2016. Court Reporter: Gina Delatte−Richard. Phone Number: 225−389−3564.

NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.lamd.uscourts.gov.

Case: 3:14-cv-338 As of: 10/06/2016 12:18 PM CDT 17 of 17

08/08/2016

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 8/26/2016. Redacted Transcript Deadline set for 9/6/2016. Release of Transcript Restriction set for 11/3/2016. (Delatte−Richard, Gina) (Entered: 08/08/2016)
150 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings before Judge John W. deGravelles held on June 29, 2016. Court Reporter: Gina Delatte−Richard. Phone Number: 225−389−3564.

NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.lamd.uscourts.gov.

09/07/2016 09/07/2016

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 8/26/2016. Redacted Transcript Deadline set for 9/6/2016. Release of Transcript Restriction set for 11/3/2016. (Delatte−Richard, Gina) (Entered: 08/08/2016)
151 Proposed Findings of Fact by Trussell George. (Lospennato, Ronald) (Entered: 09/07/2016)
152 Proposed Findings of Fact by Eric Brady, Whalen Gibbs, Kathy Kliebert, James M. LeBlanc, Louisiana Department of Public Safety and Corrections, Lousiana Department of Health and Hospitals, Gerald Starks, Scott Tubbs, Charles P Vosburg. (Cody, Jeffrey) (Entered: 09/07/2016)