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Case 4:03-cv-00812-SWW Document 69 Filed 07/27/04 Page 1 of 42

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, ,

. FILEn ·"~1 us DISTRICT ~RT
EASTERN DISTRICT IIRKANSAliI .<1

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS

JUL 27 200~

WESTERN DIVISION

JAMES W. McCORMACK, CLERK

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H.P. and R.N., et al.

PLAI~iF'F'S

DEP 15LERK

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v.

Case No. 4:03CV00812 SWW

KURT KNICKREHM, et al.,

DEFENDANTS

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BRIEF IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY

JUDGMENT

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For their brief in support. official-capacity defendants Kurt Knickrehm

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and James C. Green, as well as official-capacity defendant Board members' Kay

Barnes, Randy Lann, Wesley Kluck, Thomas Dolislager, Grover Evans, Suzann

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McCommon, and Luke Heffley, set forth the following:

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I. STATEMENT OF FACTS

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Plaintiffs Robert Norman and Harve Porter are individuals with

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developmental disabilities? Norman, who was a resident of the Southeast

Arkansas Human Development Center ("SEAHDC") transitioned to a residence at

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Friendship Community Care Inc., in Russellville, Arkansas, in January of 2004.

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(Complaint at ~ 42). Porter currently resides at the Alexander Human

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Development Center ("AHDC"). Arkansas courts have adjudicated both men as

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I Ron Carmack and Don Dunn are no longer DDS Board members. Upon the expiration of their terms, Thomas Dolislager and Luke Heffley replaced them. Because Carmack and Dunn were sued in their official capacities only, Federal

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Rule of Civil Procedure 25(d)(l) provides that Dolislager and Heffley be "automatically substituted" as parties.

2 Plaintiff Disability Rights Center ("DRC") is the federally authorized protection

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and advocacy system for the State of Arkansas under 42 U.S.c. § 15043 (a)(2)(A)(i). Susan Pierce, nominated as next friend of Robert Norman and Harve

Porter, is employed by DRC.

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legally incapacitated and each has a court-appointed guardian. Norman's

guardian is Charlie Harris, a vocational counselor with Pathfinders, Inc., who has

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known Norman for over a decade and who acts as "sort of a surrogate father" to

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Norman. (Harris Stmt at 6)3 Porter resides at the AHDC. His guardian is his

mother, Sue Ellen Gibson, with whom Porter has lived for approximately 85

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percent of his life. (2nd Am. Comp. at ~~ 21-23,26-27).

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The AHDC and SEAHDC are two of six state operated Intermediate Care

Facilities ("ICF/MR") for people with developmental disabilities. (Affidavit of

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James C. Green, Ph.D., attached as exhibit 2). The Centers provide medical,

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residential, habilitation, recreational, and educational services to people who are

developmentally disabled, as well as people who are dually diagnosed as having a

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mental illness in addition to a developmental disability. rd. The Centers likewise

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serve people who are medically fragile or who have severe aggressive behaviors

in addition to having a developmental disability. Id. They operate full time with

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total care available twenty-four hours per day, seven days per week. rd.

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The Centers operate under the Arkansas Department of Human Services,

Division of Developmental Disabilities Services ("DDS,,)4, and the

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Developmental Disabilities Services Board ("DDS Board"). rd. Although the

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DDS Board is authorized by statute to regulate admission to and discharge from

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3 "Stmt." refers to the sworn statement taken by the Disability Rights Center of Charlie Harris, attached as exhibit I.

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4 Defendant Kurt Knickrehm is the Director of the Arkansas Department of Human Services; defendant James C. Green is the Director of the Division of

Developmental Disabilities Services.

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2

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the Centers, it has delegated this authority to the DDS Director. (Carmack Dep. at

12- 13, attached as exhibit 3).

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When someone applies for human development center admission, an

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admission team composed of cognitive professionals, including a psychologist,

reviews the admission application. See, Green affidavit. Each team is

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empowered to refuse admission to any person who does not satisfy the clinical

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standards for admission. Id. Upon admission, each resident is appointed an

interdisciplinary team, which includes the resident and the resident's guardian, if

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any. The interdisciplinary team periodically reviews the continuing need for

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human development center placement. Id.

Robert Norman

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Robert Norman was admitted to SEAHDC in August, 1999, under unusual

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circumstances. (2nd Am. Compo at ~ 36). Following a charge of criminal attempt

to commit arson, an Arkansas circuit court ordered that Norman undergo a mental

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health evaluation. Id. at ~ 35. Being a long-time participant at Pathfinders,

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Norman viewed his Pathfinders vocational counselor Charlie Harris as "sort of a

surrogate father." (Harris Stmt. at 6). Understanding that the courts required

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Norman to either find a supervised living place or go to jail, Harris "started

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immediately looking for placement" for Norman. Id. at 7, 11-12. In seeking an

appropriate placement, Harris worked with, among others, Norman's psychiatrist

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at the Greater Little Rock Mental Health Center. Id. He also discussed the matter

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with Norman's public defender. 5 Id. at 12. Harris believes that he was referred

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5 An attorney represented Norman throughout his criminal proceeding.

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to SEAHDC by Norman's psychiatrist, and he then took Norman to SEAHDC

and "moved him in." Id. at 8.

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Because Harris was so involved with Norman, the Center discussed with

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him the possibility of becoming Norman's limited legal guardian. (Harris Stmt. at

8, 18). Specifically, former SEAHDC social worker Carol Moore approached

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Harris about becoming Norman's guardian, reasoning:

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[Harris] and Robert [Norman] were very close, from what I understand, in talking with both of them. Robert very much was

dependent on [Harris] for support, because [Norman] had little to

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none ...

Charlie [Harris] seemed to truly care about Robert and not just as

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somebody who had worked with Robert. He really seemed to care about him. And my understanding, Robert's mother, I don't

remember if it was emotional or physical, her health was ... very

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poor. Robert really cared about Charlie too. Charlie was his father figure.

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Id. at 14, 26-27. Harris knew that Norman had to be removed from his home

because his mother could not take care of him or control him. Id. at 7. He was

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also aware that Norman's biological father was deceased. Id. at 19. Harris spoke

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with Norman about becoming his guardian, and Norman was in agreement. Id. at

10.

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In January of 2000, Arkansas Circuit Judge John Plegge entered an order

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in Norman's case acquitting him by reason of mental disease or defect. (2nd Am.

Compo at ~ 38; Exhibit 4). Judge Plegge ordered that Norman be committed to

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the custody of SEAHDC pursuant to Ark. Code Ann. § 5-2-314(b), which in

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summary provides that if a criminal defendant who is acquitted of certain crimes

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on the ground of mental disease or defect that the court "shall order the defendant

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committed to the custody of the Director of the Department of Human Services

for an examination by a psychiatrist or licensed psychologist." Ark. Code Ann. §

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5-2-314(b); Exhibit 4. The court also ordered that the psychological or

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psychiatric report be filed with the Pulaski County Probate Court6 and that a

hearing on the report "shall take place not later than ten (10) days following the

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filing of the above report." [d. Judge Plegge noted that "[i)f the defendant

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[Norman) is in need of counsel for said hearing, counsel shall be appointed

immediately upon filing of the report." Id. On February 23, 2000, however,

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Arkansas Probate Judge Mary Ann McGowan dismissed the probate court action,

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explaining that because Norman had never been found fit to proceed to trial that it

was inappropriate to acquit him pursuant to Ark. Code Ann. § 5-2-301 et seq.

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(Exhibit 29).

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During his stay at the SEAHDC Norman resided in one of the Center's

group homes, which is separated from the main campus and is a "more residential

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type setting." (Moore Stmt. at 31 (Exhibit 5); Harris Stmt. at 31 (Exhibit I);

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Affidavit of Judy Adams, (Exhibit 6) and Photo Exhibits 7-10. He was also

employed by McDonald's and for a couple of other employers in the community.

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(Harris Stmt. at 18).

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6 At the time of this Order, state probate courts were entities separate from the

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circuit courts, with the prior having a limited jurisdiction. Amendment 80 to the Arkansas Constitution, however, drastically changed the structure of the courts. As discussed infra, the State circuit courts now have jurisdiction over "all matters

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previously cognizable by Circuit, Chancery, Probate and Juvenile Courts." Ark. Const. Amend 80, § 19(8).

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Although Norman never told Harris that he wanted to leave SEAHDC,

Harris began seeking an appropriate community placement for Norman. (Harris

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Stmt. at 11, 18). Professionals at the SEAHDC also worked toward placing

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Norman in the community, notifying Harris that Norman "needed to go on and

graduate up, because he was, you know, ready for less structure." Id. at 19, 20.

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As early as September of 2001, Norman was being considered for a community

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placement in El Dorado. (See Moore Stmt. at 24). Eventually, the Center and

Harris were successful in locating an appropriate placement for Norman at

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Friendship Community Care. (2nd Am. Compo at 11). Harris is comfortable with

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this placement because it provides Norman the "strict supervision" that he

continues to need. (Harris Stmt. at 22).

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On June 22, 2004, plaintiff Disability Rights Center took a sworn,

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transcribed statement from Harris. At the end of the statement, when counsel

asked, "[i]s there anything else that you think we need to know regarding .. ,"

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Harris interjected:

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No, mainly, if this was a misplaced, the wrong place for him, if you will look at the record, though, he needed to be somewhere,

because when [Norman's] cousin mutilated him in that park, that's

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when the real ... you know, and I think that's where the courts might have failed ... because the guy nearly died. And this is, we

are talking about a person with mental retardation that functions on

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a six- or seven-year-old [level], and he is out in the middle of the park at three 0' clock in the morning, and he winds up on a guy's

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porch, naked, mutilated, totally, from head to toe, and the guy took the box cutter up his anus, and he is permanently on a colostomy, and yet it took a little fire in the garbage can in the Laundromat,

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which was just a ... I don't think the building was in danger, and it was just, you know, he was just acting out. But anyway, it was obvious he needed placement, no matter where it was.

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(Harris Stmt. at 20-21). When counsel then asked, "[i]n other words, he

needed help," Harris explained:

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Or there, or either prison, and that what Judge Plegge said, for his

safety. I mean, the guy would disappear, and he wound up in Hot

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Springs for a week and didn't know where he was, didn't have his medication, and he was on psychotropic drugs. And, you know,

the guy needed somewhere, or he would be dead now, probably.

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So no matter where he went, he needed out of his mother's home, not because she is a bad person, but she couldn't control him. And

we are talking about a person with mild mental retardation and

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schizophrenia and just running the streets and running his life, or ruling his life and ruining it. So he needed placement. That's all

that it is.

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Jd. at 21-22.

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Harve Porter

Harve Porter's mother, Sue Ellen Gibson, is his court appointed legal

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guardian. Porter, who is 39 years old, has lived at home with his mother (and at

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times other family members) during approximately 85 percent of his life. (2nd

Am. Compo at ~ 21-23, 26-27). Porter is moderately mentally retarded, has

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mental illness (including intermittent explosive disorder), and suffers from a

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seizure disorder, among other health conditions. (affidavit of Judy Adams, Exhibit

6).

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Gibson first applied for HDC admission for her son on April 3, 1987, on a

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"respite," or temporary basis. (2nd Am. Compo at ~ 22). Porter returned to his

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family home two months later on June 4, 1987. Id. at ~ 23. Acting on the advice of her attorney, Gibson became Porter's court-appointed legal guardian in

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February of 1995, following her divorce from Porter's father. (Gibson Dep. at 7-8

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(Exhibit 24)).

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Porter remained in his mother's home for the next ten years. (2nd Am.

Compo at ~ 26). In early 1998, Gibson again applied for HDC admission for her

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son. Id. As Gibson explained, she felt this placement was appropriate because

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"[h]e had hurt hi[m]self. He had scratched his face up, and he had got to where

he would run off. He wouldn't mind me, and he would run off and hide, and we

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lived on the road, and I was afraid he would get run over." (Gibson Dep. at I I).

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Following Porter's placement at the SEAHDC, his visits to his mother's house

would usually be cut short because Porter would tear up the house or destroy

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something. (Moore Stmt. at 20). Social worker Carol Moore, who provided care

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for Porter as well as Norman, explained, "[w]hen Harve [Porter] is in a good

mood, he is one of the most jovial people you'll ever meet, but when he is angry,

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he is very angry." ld. at 20. Describing Porter's explosive behavior that she

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experienced during her tenure at the Center, Moore noted that "Harve was not

only a threat to others, he was a threat to himself. I have watched him lay on the

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floor and bust his head open, intentionally." Id. at 21.

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Porter remained at the SEAHDC until October 22, 2003, at which time he

was transferred to the AHDC at his request and that of his mother. (Gibson Dep.

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at 9, 10; 2nd Am. Compo at 30)7 Porter currently resides at the AHDC, having

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recently spent several weeks at his mother's home while convalescing from

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surgery intended to ameliorate his seizure disorder. At Porter's request, he

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7 This transfer followed an allegation by Porter that he had been abused at the Center. A subsequent investigation found the allegation unsubstantiated, but suspicious. (2nd Am. Compo at ~ 29).

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returned to the AHOC from his mother's home early, that is, before the scheduled

end of his visit. (affidavit of Kay Shaw (Exhibit 10».

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As of March 29, 2004, Porter had never told his mother that he wanted to

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leave the Alexander HOC and expressed no reservation about residing at the

Center. (Gibson Oep. at 9)8 During his deposition on that same day, Porter

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testified that he was happy at the Alexander HOC. (Porter Oep. at 15 (Exhibit

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». II In response to questioning by a ORC attorney, he also testified that he did

not want to leave the Center. 1L at 20. It was not until the attorney "reminded"

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Porter about their recent conversation that Porter testified he wanted to move to

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"Texarkana." Id. Specifically, Porter testified:

Q: [First ORC attorney] Harve, do you want to leave here

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and move somewhere else0

A: [Porter] No.

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Q: Do you remember talking to me a few days ago?

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A: But I'd like to move to Texarkana.

Q: [Second ORC attorney] You would like to move to

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Texarkana, is that what you said?

A: Right.

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Id. at 20. More recently, Porter has told Center staff that he wants to move to the

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Arkadelphia HOC because he believes, and correctly so, that there are more

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woodworking opportunities at Arkadelphia than Alexander. Thus, Porter's

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g Porter had mentioned to SEAHOC superintendent Boyd Hancock on several occasions, however, that he wanted to "go home." (Hancock Oep. at 15 (Exhibit

12). Porter had previously told his mother that he wanted to move to the

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Arkadelphia HOC because of its woodworking program, but he now "loves it here" because the Center provides Porter with woodworking materials. (Gibson

Oep. at 23-24).

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Case 4:03-cv-00812-SWW Document 69 Filed 07/27/04 Page 10 of 42
currently expressed preference is to live at a human development center. (Affidavit of Kay Shaw, Exhibit 10). II. CAPACITY TO SUE
Defendants acknowledge the DRC may sue to vindicate the rights of disabled persons, including Porter and Norman. However, under the present circumstances, Porter and Norman, appearing by DRC employee Susan Pierce as their next friend, are not proper plaintiffs.
Fed. R. Civ. P. 17(c) provides that incompetent persons may sue and be sued through representatives. The term "incompetent person" in Rule 17(c) refers to "a person without the capacity to litigate." Thomas v. Humfie1d, 916 F.2d 1032,1035 (5th Cir. 1990), aff'd 32 F.3d 566 (5th Cir. 1994), cert. denied, 513 U.S. 1167 (1995). Next friends appear in court on behalf of persons who are unable to seek relief themselves, usually because of mental incompetence. Whitmore v. Arkansas, 495 U.S. 149, 162 (1989).
Fed. R. Civ. P. 17(b) provides that the capacity of a person to sue is determined by the law of the person's domicile. It is undisputed that under Arkansas law, Porter and Norman lack the capacity to sue and be sued, and therefore must appear through a representative.
Fed. R. Civ. P. 17(c) states: ""Whenever an ... incompetent person has a general guardian or like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. An ... incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem." (Emphasis added). Porter and Norman each have a court
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appointed guardian of the person, thus, the guardians are the real parties In

interest, not Susan Pierce as next friend. Consequently, Ms. Pierce should be

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dismissed. And, because neither guardian joins in the complaint (Porter's

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guardian affirmatively resists the complaint), Porter and Norman should be

dismissed as well.

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The principles embodied in the Federal Rules are the same principles upon

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which this defense is based. Specifically, defendants maintain that state law

regarding capacity is controlling, and that personal representatives appointed

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under state law are the only proper persons to act on behalf of incompetent

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persons in circumstances where such individuals cannot act for themselves. Of

course, in federal civil proceedings, the fundamental interest at stake is more

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likely property than liberty; however, one's entitlement to due process is the same

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in either case. Federal rules entrust all the decisions in connection with federal

litigation -- to sue, be sued, compromise and settle -- to guardians. The State of

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Arkansas does the same with respect to decisions about where the ward will live.

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Defendants submit that for purposes of the instant due process analysis, there is

no difference between the two.

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III. RELEVANT STATE STATUTES AND RULES

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State law imposes three conditions for admission to a human development

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center: each individual must: I) be developmentally disabled; 2) be incapable of managing his or her affairs; and 3) need the care and treatment provided at a

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center. All three conditions must be independently established by psychological

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tests. Ark. Code Ann. § 20-48-404.

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Admission may be voluntary or by judicial commitment. Voluntary

admission is made upon application of a parent or, as in this case, a guardian.

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See, Ark. Code Ann. § 20-48-405. If the conditions of voluntary admission are

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met, and if the necessary resources are available to provide the requested services,

then no commitment order is required. Ark. Code Ann. § 20-48-406(b).

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Ark. Code Ann. § 20-48-405 provides that guardians may apply for

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admission of a ward to a human development center. The guardians' authority is

derived from the probate code, which empowers them to make decisions for their

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wards, including where the wards will live. Thus, we must turn to the probate

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code in order to discuss the guardians' authority as well as the procedural

protections governing the appointment of guardians and their empowerment to act

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in place of their wards.

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Guardians may only be appointed for incapacitated persons, who are

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defined to include individuals under age eighteen whose disabilities have not been
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removed and individuals impaired by "mental deficiency" "to the extent of

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lacking sufficient understanding or capacity to make or communicate decisions to

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meet the essential requirements for his or her health or safety ....,,10 "Essential

requirements" for health and safety include "health care, food, shelter, clothing,

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and protection without which serious illness or serious physical injury will occur."

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Ark. Code Ann. § 28-65-101. Consequently, minors and incapacitated adults are

unable as a matter of law to make or communicate decisions about their shelter

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arrangements.

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9 Ark. Code Ann. § 28-65-104(1).

IOArk. Code Ann. § 28-65-101 (5)(A).

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Guardianship petitions are subject to numerous procedural protections.

For example, notice of the hearing must be given to the alleged incapacitated

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person,ll The court must determine that the alleged incapacitated person is

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"either a minor or otherwise incapacitated.,,12 Unless the person is a minor, there

must be a professional evaluation J3 , and incapacity must be shown by "the oral

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testimony or sworn v,Titten statement of one (1) or more qualified professionals,

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whose qualifications shall be set forth in their testimony or written statements.,,14

At the hearing, the respondent has the right to "(1) Be represented by counsel; (2)

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Present evidence on his or her own behalf; (3) Cross-examine adverse witnesses;

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Remain silent; Be present; and (6) Require the attendance by subpoena of one (1)

or more of the professionals who prepared the evaluation.,,15 Petitioner has the

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burden of proof by clear and convincing evidence. 16

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Guardians must care for and maintain the ward and see that the ward is

protected and "properly" educated. 17 Guardians of the person have custody of

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their wards l8 and are therefore empowered to decide where the ward shall live,

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subject to the continuing jurisdiction of the circuit courts. Guardians must make

decisions (i.e., decisions that are not prohibited by Ark. Code Ann. § 28-65-302)

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in a manner that is consistent with the prudent exercise of their fiduciary duties.

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To that end, circuit courts have jurisdiction to review "all matters" of

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11 Ark. Code Ann. § 28-65-207. 12 Ark. Code Ann. § 26-65-210.

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13 Ark. Code Ann. § 28-65-212. 14 Ark. Code Ann. § 28-65-21 1(b)(1). 15 Ark. Code Ann. § 28-65-213(a)(1)-(6).

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16 Ark. Code Ann. § 28-65-213(b). 17 Ark. Code Ann. § 28-65-301 (a)(1). 18 Ark. Code Ann. § 28-65-301(3).

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guardianshi p19, and therefore may at any time review each guardian's acts and

omissions and enter orders assuring that each guardian acts in his or her ward's

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best interests. See, In re Guardianship of Markham v. Buck, 32 Ark. App. 46, 50

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(1990). Furthermore, the circuit courts are expressly empowered to review

guardians' placement decisions. Ark. Code Ann. § 28-65-303.

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Admission to the human development centers is a multi-step process.

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First, DDS must determine that the applicant is developmentally disabled in order

for the applicant to be eligible for any DDS services 20 Second, the applicant's

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developmental disability must be established by testing21 . Third, the applicant

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must satisfy DDS Policy 1086 regarding human development center admission.

DDS policy 1086 requires a "comprehensive review" of the individual's

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physical, emotional, social, and cognitive status by the interdisciplinary team22

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Eligibility for admission is contingent on independent (i.e., independent of the

applicant's guardian) professional determinations that: 1) the individual is eligible

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for DDS services; 2) the individual's need for human development center services

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is "clearly established and documented,,23; 3) "admission is in the best interest of

the individual,,24; and 4) the individual's "needs cannot at the current time be met

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in the community.,,25

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19 Ark. Code Ann. § 28-65-107.

20 See, DDS Policy 1075, entitled "TESTING REQUIREMENTS TO DETERMINE

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ELIGIBILITY FOR DDS SERVICES," attachment 14. 21 See, DDS Policy 1075 (Exhibit 14), for testing requirements.

22 See, DDS Policy 1086(3) (Exhibit 15).

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23 Id. 24 Id.

25 Id. (Emphasis in original)

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Within thirty days of admission, the preadmission evaluation is reviewed

and updated to reconsider social, cognitive, communicative, and sensory-motor

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factors, adaptive behavior, and independent living skills. As part of the process,

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the residents diagnosis and prognosis are recorded, long range goals are adopted, and an individual program plan is written26

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At each stage of the process, DDS' determinations are subject to

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administrative appeal27• All final agency determinations are subject to judicial

review under Ark. Code Ann. § 25-15-212 (the Arkansas Administrative

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Procedure Act).

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IV. SUMMARY JUDGMENT STANDARD

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Summary judgment is appropriate when there IS no genume Issue of

material fact and the dispute may be decided solely on legal grounds. Holloway

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v. Lockhart, 813 F.2d 874 (8th Cir. 1987); FED. R. Crv. P. 56. The moving party

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must show that the record does not disclose a genuine dispute on a material fact.

It is then the respondent's burden to adduce evidence and specific facts showing

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that there is a genuine dispute. If the respondent fails to carry that burden,

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summary judgment is granted. Counts v. M.K.- Ferguson Co., 862 F.2d 1338,

1339 (8th Cir. 1988). As the Supreme Court stated in Celotex Corp. v. Catrett,

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477 U.S. 317 (1986): "One of the principal purposes of the summary judgment

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rule is to isolate and dispose of factually unsupported claims or defenses, and we

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think it should be interpreted in a way that allows it to accomplish this purpose."

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26 See, DDS Policy 3007-1 (Exhibit 28). "See, DDS Policy 1076 (exhibit 16). are subject to judicial review under Ark. Code Ann. § 25-15-212 (the Arkansas Administrative Procedure Act).

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The party movmg for summary judgment has the initial burden of

informing the court of the basis for its motion and identifying the pleadings,

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admissions, discovery documents and affidavits it contends show the absence of a

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genuine issue of material fact. Id. at 323. However, this burden does not require

the moving party to negate the other party's claims. The movant meets its burden

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merely by pointing out that there is an absence of evidence to support the

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nonmoving party's case. Id. at 325. The nonmoving party must then go beyond

its own pleadings to designate specific facts raising a genuinely triable issue. Id.

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at 324; sec also Counts. supra

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In order to establish that a genume Issue of material fact exists, the

nonmoving party must meet a three-pronged test. Under this test, the nonmoving

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party must demonstrate that:

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1. There is a factual dispute; 2. The disputed fact is material to the outcome of

the case; and,

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3. The dispute is genuine.

RSBI Aerospace, Inc. v. Affiliated FM Ins. Co, 49 F.3d 399 (8th Cir. 1995). A

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dispute is genuine only if a reasonable jury could return a verdict for either party.

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Id.; see also. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1966);

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McLaughlin v. Esselte Pendatlex Corp.. 50 FJd 507, 510 (8th Cir. 1995).

I

v. SUMMARY OF THE ISSUE

I

The plaintiffs allege that the Developmental Disabilities Services Board

("Board") and the Department of Human Services ("DHS") must provide them

I

with a judicial hearing before furnishing human development center services, and

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that the failure to provide a judicial hearing violates plaintiffs' rights to due process and equal protection. See e.g., Second Amended Complaint at ~ 49. As a

I

threshold matter, this contention ignores the fact that the official-capacity

I

defendants are not empowered to provide the plaintiffs with a judicial hearing.

Similarly, because none of the present defendants are an attorney in law or fact

I

for plaintiffs Norman and Porter, they have no avenue of arranging for such

I

judicial hearings. 28

By contrast, plaintiff Disability Rights Center as advocate and counsel for

I

Norman and Porter may at any time (either pre- or post-admission) seek review of

I

any HOC resident's placement if they feel that the resident's guardian is not

acting in his or her best interest. Simply stated, the DRC can advocate on behalf

I

of HOC residents by filing an action in the Arkansas circuit courts (including a

I

pre-admission petition for injunction) that would afford the resident all the

procedural protections that the plaintiffs seek in this lawsuit. Because these

I

procedural protections are readily available at the state level (and are certainly

I

available to both Norman and Porter), the plaintiffs' procedural due process claim

must fail.

I

Considering the above, the principal contention in the plaintiffs' complaint

I

may be stated as follows: it is unconstitutional for the Board, DHS, or both to

admit any individual who is developmentally disabled and incapacitated to a

I

human development center upon application for such services submitted by the

I

I

28 This representation assumes, of course, that neither plaintiff is an "endangered adult" as defined by Ark. Code Ann. § 5-28-101 (5) (Supp. 2003»

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individual29 or the individual's guardian unless the individual or the individual's

guardian first produces a judicial order approving or directing the admission.

I

This brings the pivotal question oflaw into sharp focus: does state law vest court-

I

appointed guardians with the authority to act on behalf of their wards for the

purpose of determining care and custody? If the answer is yes, then the human

I

development centers are providing care upon request and there is no constitutional

I

deprivation. Conversely, if the guardian lacks the authority to determine the

custody of the ward, then the state may not rely on the guardian's applications and

I

authorizations. The guardian's authority is a question of state statutory probate

I

law. Critically, the plaintiffs are not challenging the constitutionality of

Arkansas' probate laws.

I

VI. ARGUMENT

I

A. Continued Standing

In their motion to dismiss, separate defendants argued that the plaintiffs

I

lack standing to bring this action. This Court disagreed, holding the plaintiffs

have "a concrete, substantial liberty interest in not being confined unnecessarily"

and that "plaintiffs' right to due process is absolute and does not change

according to whether their admission to state institutions was correct, justified, or

I

necessary." Accordingly, this Court found that plaintiffs' allegations of

I

I

29 The individual plaintiffs are legally incapacitated and thus cannot contract for human development center services, so the guardian must apply. However,

plaintiffs assert that the guardian cannot make valid application, either, so under

I

plaintiffs' theory of the case, only ajudge may properly seek human development center placement for an incapacitated person with a guardian.

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confinement without process sufficiently alleged an injury in fact. Feb. 12,2004,

Order, p. 6.

I

Defendants have no quarrel with the notion that the right to procedural due

I

process does not hinge on whether the outcome of the process would favor

plaintiff. However, Carey v. Piphus, 435 U.S. 247, 266 (1978), should not be

I

read to require procedure for procedure's sake. Rector v. City and County of

I

Denver, 348 F.3d 935, 943 (10th Cir. 2003). "The Fourteenth Amendment, by its

terms, does not guarantee due process; it protects against deprivations of life,

,I
,

liberty, or property without due process. Unless a person asserts some basis for

il

contending a governmental deprivation of life, liberty, or property, he is not

injured by defective procedures he has no occasion to invoke." 348 F.3d at 943-

I

944, relying on the following passage from Michael H. v. Gerald D., 491 U.S.

I

110, 127 n. 5 (1989) (plurality opinion) ("We cannot grasp the concept of a 'right

to a hearing' on the part of a person who claims no substantive entitlement that

I

the hearing will assertedly vindicate.").

I

Robert Norman no longer resides at a human development center. Rather,

I

due to the persistent efforts of the Center and Mr. Harris, Norman is residing in a

community group home. Because Norman is no longer subject to the alleged

I

unconstitutional confinement that gave rise to his claims, his request for

I

injunctive relief is moot. See, Jane Doe v. Kurt Knickrehm, et aI., Case No.

4:03CY00205 SWW, Order filed 10/3/03 at 8 (citing Martin v. Sargent, 780 F.2d

I

1334 (8th Cir. 1985) (holding that inmates claims for injunctive and declaratory

I

relief were moot where prisoner was no longer imprisoned under the conditions

I

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giving rise to his claim». For purposes of the motion to dismiss, the Court had to

accept as true plaintiffs' allegations that they were confined in a state institution

I

against their wishes with no chance of having a hearing regarding their

I

confinement. Feb. 12, 2004, Order, p. 10. At this stage, however, the supported

evidence shows that plaintiffs' allegations are flawed because:

I

I) Under Arkansas law, guardians have the legal duty and responsibility to

I

act on behalf of and in the best interest of their wards, who in this case are

Norman and Porter. These guardians requested and consented to human

I

development center placements and continued stays for their wards (although the

I

admission of Norman was unusual in that it was effectively forced by the court

and Harris merely aided Norman in the admission process). Those requests were

I

the legal equivalent of plaintiffs seeking their own placements. 3o

I

2) State circuit courts retain jurisdiction not only to administer

guardianships in the best interest of the ward, but also to hear the ward's

I

objections, if any, to the guardian's conduct, specifically including institutional

I

placement. ~IT., Ark. Code Ann. § 28-65-303. In other words, while a ward may

file a petition to remove his or her guardian, a ward also may file a petition to

I

challenge the specific actions of his or her guardian without asking that the

I

guardian be removed. Consequently, Porter and Norman have an opportunity for

a judicial hearing at any time if they disagree with any decisions that their

I

guardians are making on their behalf.

I

30 Defendants recognize that the Court has determined that state action occurred

I

when the state agreed to provide services to plaintiffs. However, state action acquiescing to a request for services is not confinement, because confinement is by definition is involuntary.

I

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3) Federal law directs the DRC to "pursue legal administrative, and other

appropriate remedies or approaches to ensure the protection of, and advocacy for,

I

the rights of such individuals within the State who are or who may be eligible for

I

treatment, services or habilitation, or who are being considered for a change in ...

living arrangements ...." 42 U.S.C. § 15043(a)(2)(A)(i). Accordingly, the DRC is

I

empowered to seek relief in the state circuit courts for any developmentally

I

disabled individuals that have guardians. In fact, the DRC is presently engaged in

litigation to remove a guardian in Pope County Circuit Court, thereby establishing

I

lhal lhere is nothing to preclude the DRC from likewise representing Norman,

I

Porter, or both, as to any claims that they may have against the manner in which

their guardians are exercising their statutory authority.

I

B. Norman and Porter Have Not Been Confined

I

Black's Law Dictionary defines confinement as the "State of being

confined; shut in; imprisoned. Confinement may be by either a moral or a

I

physical restraint, by threats of violence with a present force, or by physical

I

restraint of the person." BLACK'S LAW DICTIONARY 157 (5th abridged ed. 1983);

U.S. v. Pray, _ F.3d _ , _ (3rd Cir., July 2,2004) (citing BLACK'S and using

I

imprisonment and confinement synonymously); Woodward v. Correctional

I

Medical Services of Illinois, 368 F.3d 917, 925 (7th Cir. 2004) (defining

I

"lockdown" as confinement). Human development centers do not fall into this category. At the places where Mr. Norman lived and Mr. Porter now lives, there

I

are no barrier fences, no barbed wire, no bars, no locked doors, no security

I

screens on windows, and no security force to impose a threat of violence with a

I

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present force. Thus, plaintiffs were not and are not confined within the legal

meaning of the term.

I

Plaintiffs' allegation of confinement hinges on the fact that human

I

development centers would attempt to locate and return a resident if he or she left

the center on his own without his guardian or the staffs knowledge. However,

I

the same can be said of hospitals, nursing homes, residential care facilities,

I

assisted living facilities, small (lO-bed or less) intermediate care facilities for the

mentally retarded, sheltered workshops, apartments and group homes maintained

I

for thc developmentally disabled, as well as Porter's mother's home. Indeed,

I

DRC and Pierce contend that Porter is confined during visits at his mother's home

because she monitors and limits his movements and activities in order to assure

I

his safety31. Thus, according to the DRC, the minimum amount of monitoring

I

and supervision necessary for Harve's safety is confining. If so, then Mr. Porter

is either confined or unsafe. Under this reasoning, there are only two types of

I

developmentally disabled incapacitated adults: I) confined; 2) neglected.

I

Taking the plaintiffs' argument to its logical conclusion, a hearing and

judicial determination is necessary every time center staff transports Porter for a

I

visit in his mother's home or returns him because both trips involve state action

I

that results in "confinement." Indeed, the expansive analysis advanced by

I

plaintiffs would necessitate judicial determinations as a condition of any invasive healthcare procedures that are not welcomed by the ward. As discussed below,

I

I

31 See, depositions of Nan Ellen East, DRC Chief Executive Officer, at 54 and

Susan Pierce, next friend, at 12-13 (Exhibits 17 and 18, respectively).

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the United States Supreme Court flatly rejects such inflexible notions of due

process.

I

C. Procedural Due Process

I

1. Procedural Due Process is not an end unto itself

The plaintiffs allege that they are suffering an ongoing procedural due

I

process deprivation stemming from their placement at human development

I

centers. That is, they challenge the constitutionality of state laws or policies

permitting their admission to human development centers without judicial process

I

in addition to circuit court guardianship proceedings and attendant ongoing

I

hearing opportunities.

The due process clause provides, "nor shall any State deprive any person

I

of life, liberty, or property, without due process of law." U.S. CONST., amend.

I

XIV, § 1. Procedural due process is "[A] guarantee of fair procedure." Zinermon

v. Burch. 494 U.S. 113, 125 (1990).

I

In procedural due process claims, the deprivation by state action of a

constitutionally protected interest in "life, liberty, or property" is not in

I

itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process oflaw. Parratt, 451 U.S., at 537; Carey v.

Pipus, 435 U.S. 247,259 (1978) ("Procedural due process rules are meant

I

to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property").

I

[d. (Emphasis in original).

I

It is a well-settled principle, however, that the requirements of procedural due process apply only when there has been a deprivation of life, liberty,
or property within the meaning of the Fifth or Fourteenth Amendment.

I

See, Matthews v. Eldridge, 424 U.S. 319, 332, 96 S. Ct. 893,901,47 L. Ed. 2d 18 (1976); Board of Regents v. Roth, 408 U.S. 564, 569-72, 92 S.ct. 2701, 2705-06, 33 L. Ed. 2d 548 (1972); Williams v. Nix, 1 F.3d

I

712,717 (8th Cir. 1993). Not every "grievous loss visited upon a person by the [government] is sufficient to invoke the procedural protections of

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the Due Process Clause." Meachum v. Fano, 427 U.S. 215, 224, 96 S. Ct. 2532,2538,49 L. Ed. 2d 451 (1976).

I

Schneider v. U.S., 27 F.3d 1327, 1332-33 (8th Cir. 1994).

The plaintiffs assert that Porter and Norman were or are deprived of

I

procedural due process because the Board and DHS did not provide them with a

I

judicial hearing regarding their placement at a human development center.

However, judicial process is not an end unto itself. There must be an underlying

I

deprivation under color of state law of, in this case, a liberty interest, and the

I

deprivation must have occurred without an opportunity to be heard. Against this

backdrop, three problems with the plaintiffs' assertion become apparent.

I

First, a deprivation is by definition a taking or confiscation imposed

I

contrary to the plaintiffs' interests. Porter and Norman, acting either directly or

through their court-appointed guardians, sought out and applied for the particular

I

human development center services that they received and, in Porter's case,

I

continue to receive. Providing requested governmental services is not a

governmental taking. Second, the plaintiffs had and continue to have an

I

opportunity to be heard in state circuit court, but have declined to avail

I

themselves of that opportunity. Third, there are no liberty interests at stake

because the plaintiffs have not been "confined."

I

2. Plaintiffs were afforded all procedural process that isdue

I

Harve Porter and Robert Norman were adjudicated incapacitated 111

I

proceedings governed by statutes that required notice to them32, a professional

I 32 Ark. Code Ann. § 28-56-207 (b).

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evaluation)), a hearing where they had the right to be present, be represented by

counsel, present evidence, cross-examine witnesses, remain silent, and require

I

attendance of professionals)4. Petitioners had the burden of proof by clear and

I

convincing evidence. Id. Thus, the judicial determination (hat Porter and

Norman were unable to make their won shelter decision, and that a guardian

I

should be appointed to make those decision for them, was subject to a full

I

panoply of due process protections.

Probate, now circuit, courts appointed guardians to Norman and Porter in

I

order to enable the protection of the plaintiffs' best interests by, inter alia,

I

administering Porter and Norman's custody and placement. Those courts have

jurisdiction to review "all matters" of guardianshipJ5, and therefore may review

I

each guardian's activities and enter orders assuring that each guardian acts in

I

plaintiffs' best interests. See, In re Guardianship of Markham v. Buck, 32 Ark.

App. 46, 50 (1990). Furthermore, the circuit court is expressly empowered to

I

review a guardian'S placement decision. Ark. Code Ann. § 28-65-303. Thus,

I

plaintiffs continue (0 enjoy a full panoply of due process protections in connection

I

with their guardians' decisions, including shelter decisions. Putting aside the state court hearings and attendant relief available in

I

connection with the guardians' acts, omissions, or removal, there are two

I

additional avenues affording procedural due process in state court. First, the

probate courts, and now the circuit courts, maintain the power to entertain

I

I

3) Ark Code Ann. § 28-65-212. 34 Ark. Code Ann. § 28-65-213.

;s Ark. Code Ann. § 28-65-107.

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challenges to the procedures the form the subject matter of this case. Second,

plaintiffs may file declaratory judgment actions. Ark. Code Ann. § 16-111-101 et

I

seq.; Ark. Code Ann. § 25-15-207; Ark. R. Civ. P. 57; Bennett v. Nat'l Ass'n for

I

Advancement of Colored People, 236 Ark. 750, 270 S.W. 79 (1963). Considering

that this is a declaratory judgment action, the availability of identical relief in a

I

state declaratory judgment action presumably is adequate.

I

Additionally, applicants have an opportunity for administrative hearings

and judicial review of DDS eligibility and human development center admission

I

decisions. In summary, state court judicial review, will full and adequate

I

remedies, are presently available to plaintiffs.

The initial and ongoing availability of state court judicial forums is all the

I

process that is due. Holley v. Deal, 948 F. Supp. 711, 718 (M.D. Tenn. 1996).

I

"[I]f Plaintiff disagrees with the appointment of the limited guardian, has claims

for breach of fiduciary duty of the limited guardian, or has reasons to remove the

I

limited guardianship, those claims are not properly brought in [Federal District

I

Court] and do not, without more, raise a constitutional claim." Id.

I

3. Parham v. J.R. In Parham v. l.R., 442 U.S. 584 (1979), the Supreme Court rejected the

I

inflexible due process concepts advanced by plaintiffs, holding that "[w]hat

I

process is constitutionally due cannot be divorced from the nature of the ultimate

decision that is being made. Not every determination by state officers can be

I

made most effectively by use of 'the procedural tools of judicial or administrative

I

decision making. '" 422 U.S. at 608 (citations omitted). Noting that the question

!, I

26

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of admission to a mental hospital is essentially medical, the Court stated that

medical doctors should make an independent judgment about what the patient

I

requires. ld. Applying this reasoning to the familiar balancing test in Matthews v.

I

Eldridge, 424 U.S. 319, 335 (1976), the Court held that due process "has never

been thought to require that the neutral and detached trier of fact be law trained or

I

a judicial or administrative officer." 422 U.S. at 607. After noting the importance

I

of professional judgment to hospital admission, the Court held that due process is

satisfied by an independent (i.e., independent of the parents) review of the

I

necessity of hospitalization by a doctor. 442 U.S. at 606-617.

I

For each human development center admission by a guardian, there are

two independent professional reviews. The first independent review is carried out

I

as part of the guardianship proceedings, and clinically establishes the ward's

I

incapacity. The second independent review takes place when an admission team

composed of cognitive professionals, including a psychologist, determines if the

I

applicant is eligible for DDS services and satisfies the clinical standards for

I

admission and needs the placement. After that, the continuing need for human

development center placement is reviewed periodically by a similarly independent

I

procedure. These independent safeguards surpass the protections discussed and

I

approved in parham. See, 422 U.S. at 607. Reading Heller v. Doe36 (permitting

I

relaxed procedures for admission to developmental disabilities services compared

to admission to mental hospitals) in conjunction with Parham (holding that

I

cognitively disabled and incapacitated persons may be admitted to mental

I

hospitals on the application of their parents subject to an independent professional

36 509 U.S. 312 (1993).

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determination of need), it necessarily follows that wards may be admitted to

human development centers on the application of their court-appointed guardians

I

and favorable determination of the admission review committee. (Admittedly,

I

Parham concerns minors and the present case concerns adults. Still, the reasoning

in Parham applies with like force to a situation in which an individual cognitively

I

functions at the level of a minor due to a developmental disability, and thus

I

suffers the same type of incapacitation).

Ignoring Parham, the plaintiffs appear to maintain that whenever the

I

guardian's residential decision is not acceptable to the incapacitated ward, the

I

decision-making power must be automatically transferred to a judge. Parham

expressly rejects that notion as to parents and their children. 422 U.S. at 603.

I

Applying the Parham reasoning to this case, the fact that a ward may balk at the

I

developmental disability care that the guardian arranges does not diminish the

guardian's judicially-ordered authority, particularly considering that a full

I

panoply of due process rights are available to the ward should he or she opt to

I

exercise them.

4. Exhaustion of state remedies

I

In ruling on the defendants' motions to dismiss, this Court characterized

I

the defendants' exhaustion argument as follows: "Plaintiffs' procedural due

I

process claims are not ripe for review because plaintiffs have failed to exhaust their state remedies by petitioning for termination of their guardianships." Feb.

I

12, 2004, Order, p. 10. This Court then reasoned that "Plaintiffs do not wish to

I

have their guardians removed, [sol termination proceedings would not provide an

I

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adequate remedy," thus concluding that the plaintiffs' procedural due process

claims were ripe for review. Id.

I

As noted above, circuit courts are not limited to entertaining petitions to

I

remove guardians; they can entertain any challenges plaintiffs may lodge in

connection with the placements obtained on plaintiffs' behalf by their guardians.

I

Furthermore, the circuit courts are empowered to entertain challenges to the

I

complained of procedures. Finally, plaintiffs can appeal and obtain circuit court

review of the DDS decisions on their applications. Therefore, Court's conclusion

I

that there is no adequate remedy in circuit court bears revisiting.

I

Exhaustion of state remedies is a condition precedent to any federal

procedural due process action under 42 U.S.c. § 1983. Booker v. City of St.

I

Louis, 309 F.3d 464,468 (8th Cir. 2002) (citing Wax'n Works v. City of St. Paul,

I

213 F.3d 1016, 1019 (8th Cir. 2000) ("[u)nder federal law, a litigant asserting a

deprivation of procedural due process must exhaust state remedies before such an

I

allegation states a claim under § 1983.)). That is, procedural due process

I

challenges in federal court must await the exhaustion of the challenged

I

procedures. Cornish v. Blakely, 336 F.3d 749, 753 (8th Cir. 2003). In Gaunce v. deVincentis, 708 F.2d 1290, 1293 (7th Cir.), cert. denied, 464 U.S. 978 (1983), a

I

case relied upon by the Cornish court, the Seventh Circuit held that: "[s)o long as

I

effective means for judicial review are ultimately available where the

constitutional claims can be raised, appellant may not dispense with the

I

requirement of prior administrative review, otherwise judicial review would be an

I
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abstract process." Accord, Robinson v. Dow, 522 F.2d 855, 857-858 (6th Cir.

1975).

I

Assuming arguendo that the plaintiffs have stated viable constitutional due

I

process claims, they are barred from pursing them in federal court because they

did not exhaust available state law remedies. Although Norman and Porter have

I

remedies available to them under state law, they failed to pursue those remedies in

I

state court. Consequently, the plaintiffs are barred from pursuing them before this

Court.

I

As discussed earlier, Arkansas law mandates that a guardian of a person

I

must "care for and maintain the ward." Ark. Code Ann. § 28-65-301(a)(I). This

includes deciding where the ward should reside and making most decisions

I

regarding the ward's medical care and treatment. If Norman and Porter believe

I

that their guardians are not acting in their best interests, they may avail

themselves of remedies against those guardians in the state probate courts and

I

must avail themselves of those remedies as a mandatory prerequisite to stating a

I

viable constitutional due process claim. Whether Norman and Porter's guardians

are acting in their wards' best interests in making placement decisions is precisely

I

the type of matter that is appropriate to advance before a state probate, now

I

circuit, court. There is nothing to prevent the plaintiffs from seeking pre- or post-

I

admission process from the state circuit courts, and the plaintiffs have not pled

otherwise. Their constitutional due process claim must fail because the plaintiffs

I

have not availed themselves of these state law remedies.

il

D. Equal Protection

II

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The Second Amended Complaint contends that state law and DHSIDDS

policies violate Norman and Porter's equal protection rights because they "do not

I

provide the same or similar protections to [Norman and Porter1as are provided to

I

individuals with mental illness who are involuntarily admitted to a treatment

program or facility pursuant to Ark. Code Ann. § 20-47·201 et seq. (2nd Am.

I

Compo at ~ 52). The plaintiffs allege that they are "similarly situated" to people

I

with mental illness as "both face the threat of institutionalization through

involuntary commitment procedures." (2nd Am. Compo at ~ 51).

I

The Equal Protection Clause of the Fourteenth Amendment, § 1, forbids

I

states from denying any person within its jurisdiction the equal protection of the

laws. "The Equal Protection Clause does not forbid classifications. It simply

I

keeps governmental decisionmakers from treating differently persons who are in

I

all relevant respects alike." Nordlinger V. Hahn, 505 U.S. 1, 10 (1992) (citation

omitted) (emphasis added).

I

Thus, every equal protection analysis must begin by ascertaining whether

I

plaintiffs have identified persons who are alike in all relevant respects but have

I

been treated favorably by the government. "Absent a threshold showing that [the plaintiff] is similarly situated to those who allegedly receive favorable treatment,

I

the plaintiff does not have a viable equal protection claim." Keevan V. Smith, 100

I

F.3d 644, 648 (8th Cir. 1996) (citations omitted). "Treatment of dissimilarly

situated persons in a dissimilar manner by the government does not violate the

I

Equal Protection Clause." Id.

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Plaintiffs' argument that they are "similarly situated" for constitutional

equal protection purposes with people who suffer from mental illness was rejected

I

by the United States Supreme Court in Heller v. Doe, 509 U.S. 312, 323 (1993).

I

Additionally, mental illness and mental retardation are by definition different and,

in fact, mutually exclusive37. Mental illness is defined as

I

"[A1 substantial impairment of emotional processes, or of the

ability to exercise conscious control of one's actions, or of the

I

ability to perceive reality or to reason, when the impairment is manifested by instances of extremely abnormal behavior or

extremely faulty perceptions.

I

(2) It does not include impairment solely caused by: (A) Epilepsy;

(8) Mental retardation;

I

(C) Continuous or noncontinuous periods of intoxication caused by substances such as alcohol or drugs; or

(D) Dependence upon or addiction to any substance such as

I

alcohol or drugs.

Ark. Code Ann. § 20-47-202 (j) I, 2 (Supp. 200 I) (Emphasis added). Mental

I

retardation is defined as:

I

"(A) A person with a mental deficit requiring him to have special evaluation, treatment, care, education, training, supervision, or

control in his home or community, or in a state institution for the

I

mentally retarded; or (8) A functionally retarded person who may not exhibit an

I

intellectual deficit on standard psychological tests, but who, because of other handicaps, functions as a retarded person. Not

included is a person whose primary problem is mental illness,

I

emotional disturbance, physical handicap, or sensory deficit. Ark. Code AIm. § 20-48-202 (6) (Rep!. 1991) (Emphasis added).

I

Moreover, there are significant differences between a human development

I

center and the Arkansas State Hospital:

I

37 Though the definitions are mutually exclusive, persons may be both mentally ill

and developmentally disabled.

I

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I) The Arkansas State Hospital is an acute care hospital licensed by the

Arkansas Health Department and accredited by the Joint Commission on

I

Accreditation of Healthcare Organizations ("JCAHO"). Because the Arkansas

I

State Hospital is an institution for mental diseases, patients between the ages of21

and 65 are not Medicaid eligible at all. 42 U.S.C. § 1396d (a) (xiii) (J 5); 45

I

C.F.R. § 233.60 (a) (3) (ii); Connecticut Dep't of Income Maint. v. Heckler, 471

I

u.S. 524, 530 (1985) (citing 42 U.S.C. § 1396d (a) (14) and (18) (B».

By contrast, human development centers are intermediate care facilities

I

for the mentally retarded.

I

The term "intermediate care facility for the mentally retarded" means an institution (or distinct part thereof) for the mentally

retarded or persons with related conditions if -

I

(1) the primary purpose of such institution (or distinct part thereot) is to provide health or rehabilitative services for mentally

retarded individuals and the institution meets such standards as

I

may be prescribed by the Secretary; (2) the mentally retarded individual with respect to whom a

I

request for payment is made under a plan approved under this title is receiving active treatment under such a program.

I

42 U.S.C. l396d (a) (xiii) (15). "An institution for the mentally retarded is not an

institution for mental diseases ("lMD")." 45 C.F.R. § 233.60 (a) (3) (iii). Nor are

I

human development centers hospitals; they are Medicaid-certified long-term care

I

facilities licensed by the Arkansas Department of Human Services, Division of

Medical Services, Office of Long-Term Care. Centers are not accredited by

I

JCAHO.

I

2) The Arkansas State Hospital confines patients by means of physical

restraints (bars, screens and locks) and threat of present force (security guards).

I

Human development centers have none of that.

I

33

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Case 4:03-cv-00812-SWW Document 69 Filed 07/27/04 Page 34 of 42
I

I

3) Patients at the Arkansas State Hospital are mentally ill. They typically

receive rehabilitative care, primarily with medication, for brief periods of time

I

until stabilized and then are generally discharged. Residents at the human

I

development centers are developmentally disabled. As the designation "long-

term care facility" implies, human development centers are not places for brief

I

treatments. Residents receive habilitative care, often without medication.

I

focusing on learning and improving basic daily living and socialization skills.

4) Prosecutors have the authority to bring actions for the protection of the

I

mentally ill who are gravely disabled38, but no equivalent authority exists to

I

protect the interests of developmentally disabled individuals who may be a danger

to themselves or others.

I

Accordingly, plaintiffs are not similarly situated with respect to mentally

I

ill persons committed to the Arkansas State Hospital, and the Arkansas State

I

Hospital is not similar to a human development center. Because plaintiffs have failed to make this threshold showing, the equal protection claim fails without

I

further analysis.

I

Even if plaintiffs had identified a similarly situated classification that is

treated favorably, the equal protection claim would still fail. "[U]nless a

I

classification warrants some form of heightened review because it jeopardizes

I

exercise of a fundamental right or categorizes on the basis of an inherently

suspect characteristic, the Equal Protection Clause requires only that the

I

I 18 See, Ark. Code Ann. § 20-47-208.

I

34

I

Case 4:03-cv-00812-SWW Document 69 Filed 07/27/04 Page 35 of 42
I

I

classification rationally further a legitimate state interest." Bills v. Oahm, 32 F.3d

333,335 (Sth Cir. 1994).

I

Plaintiffs assert that strict scrutiny applies in the present case "[b]ecause

I

the interest implicated here is a fundamental liberty interest and Plaintiffs Harve

Porter and Robert Norman are similarly situated to the individuals with mental

I

illness who are subject to involuntary commitment procedures." (2nd Am. Compo

I

at ~ 53). But Porter and Norman are not similarly situated to individuals with

mental illness, nor are they similarly situated to persons who are involuntary

I

committed to the Arkansas State Hospital. Neither Porter nor Norman was placed

I

at an HOC pursuant to the "legal commitment" provisions set forth in Ark. Code

Ann. § 20-4S-406(c). Rather, they were both admitted through the voluntary

I

admission process. Had they been placed through a legal commitment, Ark. Code

I

Ann. § 20-4S-406(c) provides due process, including a hearing, that culminates in

I

an "order of commitment" pursuant to Ark. Code Ann. § 20-4S-407 This Court recognized the critical distinction between voluntary

I

admissions and legal commitments to human development centers in Jane Doe v.

I

Kurt Knickrehm, et aL. (Case No. 4:03CV00205 SWW, Order filed 10/3/03 at p,

8). Finding that the plaintiffs had not satisfied the numerosity, commonality, and

I

typicality requirement of Federal Rule of Civil Procedure 23(a) based upon this

I

distinction, among others, this Court explained that "Arkansas law provides a pre-

deprivation hearing for individuals who are involuntarily committed to the State's

I

I

I

35

I

Case 4:03-cv-00812-SWW Document 69 Filed 07/27/04 Page 36 of 42

I

human development centers." Id. at 839 Because both Nonnan and Porter were

voluntarily admitted to a human development center, they are not "similarly

I

situated" with people who are "legally committed" to a human development

I

center.

In Heller, the Court rejected an equal protection claim challenging

I

Kentucky statutes that required a lower standard of proof in "commitments for

I

mental retardation" than for persons who suffered solely from a mental illness.

Id. at 328. As an initial matter, the Court recognized that because the

I

classification at issue "neither involve[d] fundamental rights nor proceed[ed]

I

along suspect lines," that it should be "accorded a strong presumption of validity."

ld. at 319. The Court found that "rational-basis review" applied; i.e., the

I

classification "must be upheld against equal protection challenge if there is any

I

reasonably conceivable state of facts that could provide a rational basis for the

classification." Id. at 32 I (citation omitted). 40

I

Regarding the relevant burden of production under rational-basis review,

I

the Court explained:

I

I

39 Although one might argue that Norman's initial admission was in effect involuntary (which it was not), he undoubtedly received a full panoply of procedural protections throughout his criminal case and it is beyond argument that

I

he was not legally committed pursuant to Ark. Code Ann. §20-48-406(c). 40 Although the Court did not conclusively hold that rational basis review

was the appropriate standard, it suggested as much, explaining, "[w]e have

I

applied rational-basis review in previous cases involving the mentally retarded and the mentally ill." Heller, 509 U.S. at 321 (citing Cleburne v. Cleburne Living

Center, Inc., 473 U.S. 432 (1985». The Court reaffinned the principle that

I

mental retardation did not qualify as a "quasi-suspect" classification for equal protection purposes in Board of Trustees of the University of Alabama v. Garrett.

531 U.S. 356,357 (citing Cleburne, 473 U.S. at 435).

I

36

I

Case 4:03-cv-00812-SWW Document 69 Filed 07/27/04 Page 37 of 42
I

I

[a) State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification. [A) legislative

choice is not subject to courtroom factfinding and may be based on

I

rational speculation unsupported by evidence or empirical data. A statute is presumed constitutional ... and [t)he burden is on the

one attacking the legislative arrangement to negative every

I

conceivable basis which might support it, whether or not the basis has a foundation in the record. Finally, courts are compelled under

rational-basis review to accept a legislature's generalizations even

I

when there is an imperfect fit between means and ends. A classification does not fail rational-basis review because it is not

made with mathematical nicety or because in practice it results in

I

some inequality.

Id. at 320-21. The Court then reasoned that a rational basis for the distinction

I

existed, including the fact that "mental retardation is a permanent, relatively static

I

condition" as opposed to mental illness, that treatment of people with a

developmental disability is generally much less invasive than treatment of people

I

with a mental illness, and that it is easier to diagnose a developmental disability

I

than a mental illness. Id. at 322-323, 324, 328. Although Arkansas' "involuntary

commitment laws" are not at issue in the present case, the Heller Court's

I

recognition that there is a rational basis for distinguishing between people with

I

developmental disabilities and people with mental illness is directly relevant to

I

and dispositive of the plaintiffs' equal protection claim.

E. Federal Law Obligates the Human Development Centers to

Accept the Applications Filed on Plaintiffs' Behalf by Their

Guardians.

Because they are Medicaid-certified ICF-MR's, the Alexander and

Southeast Arkansas Human Development Centers must comply with Medicaid

requirements by deferring to the plaintiffs' legal representatives' decisions that

the plaintiffs would be best served at a human development center. 42 C.F.R. §

I

37

I

Case 4:03-cv-00812-SWW Document 69 Filed 07/27/04 Page 38 of 42
I

I

435.302 (d). To put it another way, Medicaid law reqUIres that human

development centers accept and act upon an application for services filed by a

I

guardian on behalf of his or her ward. Human development centers cannot

I

comply with this Medicaid mandate and at the same time reject applications

submitted by lawfully-appointed guardians that are not accompanied by a judicial

I

admission order.

I

VII. CONCLUSION

When individuals lack the capacity to make safe decisions about where to

I

live, Arkansas law provides for court appointed guardians to stand in the

I

individual's shoes and make those decisions as a legal surrogate. Ark. Code Ann.

§ 28-65-301 (a)(3) (Rep!. 2004). Guardians are the custodians of their wards and

I

thus may choose the wards' place of residence. However, this statutory plan has

I

several important limitations. First, there is a list of prohibited decisions (for

example, consent to abortion or experimental medical procedures41 ) that are

I

beyond the power of guardians and are reserved to the courts.

Second,

I

guardianship must be ordered "only to the extent necessitated by the person's

I

actual mental, physical, and adaptive limitations" and used "only as is necessary to promote and protect the well-being of the person ...... Ark. Code Ann. § 28-65-

I

105. Third, upon application by the ward, the ward's counsel, or DRC, circuit

I

courts may review any decision made by a guardian.

Plaintiffs want to prohibit guardians from exercising their custodial and

I

general guardianship authority to choose their wards' residences. To accomplish

I 41 See, Ark. Code Ann. § 28-65-302.

I

38

I

Case 4:03-cv-00812-SWW Document 69 Filed 07/27/04 Page 39 of 42
I

I

that, they have asked this Court to judicially expand the list of prohibited

decisions. Such a judicial amendment of unchallenged state law would nullify

I

state circuit court orders authorizing guardians to act in the best interest of their

I

wards with respect to custody42 In other words, for every choice of residence

deemed to be confining (which, according to plaintiffs, includes every

I

conceivable safe residence) judicial decisions would supplant the decisions of

I

guardians regardless of whether the ward objects to or would challenge the

guardian's decision. Because the plaintiffs have not challenged the

I

constitutionality of the Arkansas General Assembly's allocation of responsibility

I

as enacted in the Arkansas probate code, there is no basis for the Court to recast

the present statutory arrangement.

I

Plaintiff Robert Norman lacks standing to pursue the present action.

I

Assuming arguendo that he has standing, both he and Harve Porter have available

a full panoply of due process protections under existing state law that allow them

I

to challenge any action (or inaction) of their guardians, either directly or through

I

an advocate such as the ORe. Plaintiffs' due process rights therefore

substantially exceed the requirements of the Constitution. Because Norman and

I

Porter have not exercised their right to obtain process (pre or post admission) in

I

the state courts, they are barred from advancing a constitutional procedural due

I

process claim before this Court. The plaintiffs' equal protection claim must also fail, as they have failed to

I

identify anyone with whom they are similarly situated in all relevant respects who

I

42 For this reason, defendants respectfully suggest that abstention, as argued in earlier motions, is appropriate.

I

39

I

Case 4:03-cv-00812-SWW Document 69 Filed 07/27/04 Page 40 of 42
I

I

the state treated more favorably than they. At bottom, people who are voluntarily

admitted to a human development center by their guardians are not similarly

I

situated with people who are involuntarily committed to either the Arkansas State

I

Hospital or a human development center. Consequently, neither Arkansas law

nor DHSIDDS Policies allowing voluntary human development center admission

I

run afoul of the Constitution.

I

For the foregoing reasons, the official-capacity defendants respectfully

request that this Court grant summary judgment in their favor pursuant to Federal

I

Rule of Civil Procedure 56, and that it dismiss the plaintiffs' Second Amended

I

Complaint in its entirety.

I

I

Respectfully submitted,
ARKANSAS DEPARTMENT OF HUMAN SERVICES
// /-ZZ,,t~'0-././~:/...---

By: 'Breck G. Hopkins

I

Ark. Bar No. 77065 P. O. Box 1437, Slot S260

Little Rock, AR 72203

I

(501) 682-8934

Attorney for defendants Knickrehm

I

and Green

I

I

I

I

I

40

I

Case 4:03-cv-00812-SWW Document 69 Filed 07/27/04 Page 41 of 42
I

I

MIKE BEEBE Attorney General

I

BY:

:~ qtf" ~61 fb-

'LORI FRENO, No. 97042

I

Assistant Attorney General 323 Center Street, Suite 200

Little Rock, AR 72201-2610

I

(501) 682-1314

Attorneys for official-capacity

I

defendants Kay Barnes, Randy Lann, Wesley Kluck, Thomas Dolislager,

Grover Evans, Suzann McCommon,

I

and Luke Heffley

II

I

I

I

I

CERTIFICATE OF SERVICE

I

I, Breck Hopkins, certify that I have served a copy of the foregoing

I

Statement of Material Facts on lanet C. Baker, Dana K. McClain, and Adam H. Butler, Attorneys at Law, Disability Rights Center, 1100 North University, Suite 201, Little Rock, AR 72207, and on William F. Sherman, Attorney at Law, 504

I

Pyramid Place, 221 West Second Street, Little Rock, Arkansas, 7220 I by depositing same in the .:Lni.ted States Mail in a properly addressed envelope with

adequate postage this __-_} day of luly, 2004.

I

A~-'-

I

Breck Hopkins

I

41

I

Case 4:03-cv-00812-SWW Document 69 Filed 07/27/04 Page 42 of 42
UNITED STATE DISTRICT COURT EASTERN DISTRICT OF ARKANSAS
Exhibits Attached
to Original
Document in Courts's Case File

 
 Case 4:03-cv-00812-SWW Document 117 Filed 06/09/05 Page 1 of 3
•

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

FILED

e~.._EUR.sN.

DISTRICT COURT DISTRICT ARKANSAS

H.P. AND R.N., by their next friend,

*

SUSAN PIERCE and DISABILITY

*

RIGHTS CENTER, INC.

*

*

Plaintiffs

*

*

VS.

*

*

KURT KNICKREHM, in his official

*

capacity as the Director 0 f the Arkansas

*

Department ofHurnan Services; ET AL.

*

*

Defendants

*

~!dES'/f..)~:tJRMACK. CLERK
CLERK
NO: 4:03CY812 SWW

JUDGMENT

Consistent with the Court's order entered on this date, it is CONSIDERED, ORDERED,

and ADJUDGED that Defendants shall immediately implement the proposed Division of

Developmental Disabilities Services Human Development Center Admission and Discharge

Rules submitted February 23,2005 (docket entry #113). This case is DISMISSED.

7#1 IT IS SO ORDERED THIS

DAY OF JUNE, 2005.

JODGE UNITED STATES DISTRICT COURT
THIS OOCUME~NECNOTEMRPELDIANOCNE
OWDNOITDCHK,.r.E.LTLqs~HtE.E eNyDI_O_1S.7 :-::~~ ~

117

Case 4:03-cv-00812-SWW Document 117 Filed 06/09/05 Page 2 of 3
bt UNITED STATES DISTRICT COURT Eastern District of Arkansas
U.S. Court House 600 West Capitol, Suite 402 Little Rock, Arkansas 72201-3325
June 10, 2005
* * MAILING CERTIFICATE OF CLERK * *
Re: 4:03-cv-00812.
True and correct copies of the attached were mailed by the clerk to the following:
Janet Cecil Baker, Esq. Disability Rights Center, Inc. Evergreen Place 1100 North University Avenue Suite 201 Little Rock, AR 72207
Dana K. McClain, Esq. Disability Rights Center, Inc. Evergreen Place 1100 North University Avenue Suite 201 Little Rock, AR 72207
Adam H. Butler, Esq. Disability Rights Center, Inc. Evergreen Place 1100 North University Avenue Suite 201 Little Rock, AR 72207
Breck G. Hopkins, Esq. Arkansas Department of Human Services Office of Chief Counsel 700 Main Street Post Office Box 1437 Little Rock, AR 72203-1437
Lori Freno, Esq. Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610

Case 4:03-cv-00812-SWW Document 117
William F. Sherman, Esq. Attorney at Law Pyramid Place 221 West Second Street Suite 504 Little Rock, AR 72201-2585

Filed 06/09/05 Page 3 of 3

press, post

6/10/05 Date:

James W. McCormack, Clerk
BTyree BY:

 
 .,
Case 4:03-cv-00812-SWW Document 101 Filed 11/23/04 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT

NOV 23 2004

EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

~~:~t~Wf~fARK

DEPCLEA(

H.P. AND R.N., by their next friend,

•

SUSAN PIERCE and DISABILITY

•

RIGHTS CENTER, INC.

•

•

Plaintiffs

•

•

VS.

•

•

KURT KNICKREHM, in his official

•

capacity as the Director of the Arkansas

•

Department of Human Services; ET AL.

•

•

Defendants

•

NO: 4:03CV812 SWW

MEMORANDUM OPINION AND ORDER Plaintiffs H.P. and R.N., mentally retarded adults admitted to state-operated human development centers ("HDCs"), and the Disability Rights Center, Inc. ("DRC"), bring this lawsuit pursuant to 42 U.S.c. § 1983 against the Director of the Arkansas Department of Human Services ("ADHS") and officers of the ADHS Division of Disability Services ("DDS").' Plaintiffs claim they have been committed to HDCs pursuant to statutory and administrative procedures that violate due process and equal protection guarantees. Before the Court is Plaintiffs' motion for summary judgment (docket entry #65), Defendants' responses (docket entries #78, #89), and Intervenors' response (docket entry #89), as

'Defendants are sued in their official capacities only and include Kurt Knickrehm, the Director of the ADHS, James C. Green, the Director of the DDS, and members of the DDS Board: Thomas Dolislager, Luke Heffley, Kay Barnes, Grover Milton Evans, Wesley Kluck, Randy Lann, and Suzann McCommon.

Case 4:03-cv-00812-SWW Document 101 Filed 11/23/04 Page 2 of 21
well as Defendants' motions for summary judgment (docket entries #68, #80, #94), Plaintiffs' response (docket entry #72), and Defendants' reply (docket entry #82). The Court has carefully considered each motion and supporting brief, as well as each response and reply. For the reasons stated below, the Court concludes that both motions for summary judgment should be granted in part and denied in part.
I. Background Plaintiffs claim that Arkansas statutory and administrative "voluntary admission" procedures that allow parents and guardians to admit their wards and children to HDCs without a judicial hearing violate the Fourteenth Amendment's Due Process and Equal Protection Clauses. By way of relief, they seek a declaration that the challenged procedures are unconstitutional and injunctive relief requiring Defendants to provide H.P. procedural protections that conform to due process requirements, including a judicial hearing to determine whether he requires institutional care. Admission Procedures The Arkansas Mental Retardation Act ("Act") provides for the creation and maintenance of six HDCs for the care, custody, treatment, and training of mentally defective individuals. See Ark. Code Ann. § 20-48-403(a). A person may be eligible for admission to an HDC if, due to developmental disability, he or she is incapable of managing the affairs oflife and requires special care. See id. § 20-48-404(1). The six-center system provides residential care and services to individuals whose developmental disabilities are primarily caused by mental retardation, cerebral palsy, epilepsy, or autism. See DDS Director's Office Policy Manual, Policy No. 1035.
2

Case 4:03-cv-00812-SWW Document 101 Filed 11/23/04 Page 3 of 21
A parent or guardian of a mentally defective person may request that person be admitted to an HDC by submitting a petition to the Board of the ADHS Division of Disability Services ("Board") See id. § 20-48-405. The petition must include a statement as to whether the parent or guardian desires voluntary admission or commitment. See id.
Upon receipt of a petition for admission, the circumstances of each applicant are reviewed by an ADHS admissions committee to ascertain whether the applicant is developmentally disabled and would benefit from the treatment provided at an HDC.' The committee consists of psychologists, social workers, residential services, medical services, and other professionals. Compare docket entry #67, Pis.' St. of Mat. Facts, '\129 with docket entry #79, Defs.' St. of Mat. Facts, '\129.
The Act requires that two reputable physicians, appointed by the Board, examine individuals under consideration for admission and determine their condition and mental status. Ark. Code Ann. § 20-48-406(2)(A). The examining physicians must use standard mental and psychological tests and physical examinations to determine whether an individual is developmentally disabled and in need of HDC services. See id. § 20-48-404(2).
If it is determined that statements in the petition for admission are true and the individual is incapable of managing his or her affairs and requires HDC services, the Board, or its delegate, may permit the voluntary admission of the individual for such time as the Board, or its delegate, deems necessary. "The admission shall be by action of the Board without the necessity of any
'The Act charges the Board with investigating petitions for voluntary commitment. See id. § 20-48-406(a)(l). However, the Board has delegated this responsibility, and others, to the Director of the DDS. See docket entry #70, Ex. 20 (hereinafter "Green Dep.") at 12.
3

Case 4:03-cv-00812-SWW Document 101 Filed 11/23/04 Page 4 of 21
court procedure." Id. § 20-48-406(b). Alternatively, the Board may determine that an individual should be admitted by legal
commitment only. See id. § 20-48-406(c). In such case, the Board must file a petition for commitment with the circuit court of the county in which the individual resides. The circuit court must then hold a hearing to determine whether the individual should be committed to a center.
A person who enters a center by voluntary admission may be withdrawn at any time pursuant to the application ofthe parent or guardian who has legal custody ofthe individual. See id. § 20-48-412. An individual committed by order of a probate court may not be discharged until, in the judgement of the board and center superintendent, his or her condition justifies discharge. Id.
Once admitted, each HDC resident is assigned an interdisciplinary team, consisting ofthe resident, his or her parents and guardians if any, and members of the center's medical staff. Compare docket entry #70, Defs' St. of Mat. Facts, ~ 6 with docket entry #74, PIs.' St. of Mat. Facts, ~ 6. According to DDS policy, the purpose of the interdisciplinary team is to enhance the development of HDC residents and "maximize their potential to the fullest possible extent, so as to facilitate their assimilation into the ordinary and normalized life of the community." Docket entry #70, Ex. 28.
Interdisciplinary teams are charged with periodically examining whether a resident's needs can be met in a community setting or whether they continue to require HDC placement. See docket entry #70, Defs' St. of Mat. Facts, ~ 7. However, the record indicates that in the case of a voluntary admission by a parent or guardian, the ultimate decision of whether to discharge a
4

Case 4:03-cv-00812-SWW Document 101 Filed 11/23/04 Page 5 of 21
resident belongs to the parent or guardian. Docket entry #65, Ex. 2 (Green Aff.) at 35-36. Parents, guardians, and "the individual affected" may appeal any placement, transfer, or
discharge decisions to the HDC superintendent and then to the Board. Ark. Admin. Code 016-05002 (DDS Director's Policy Manual, No. 1076). The decision of the DDS Director is a final agency decision, which is subject to judicial review pursuant to the Arkansas Administrative Procedure Act. See Ark. Code Ann. § 25-12-212.3
Plaintiffs H.P. is 39 years old. He is moderately mentally retarded and suffers from a seizure disorder and an intermittent explosive disorder. On April 3, 1987, H.P. was admitted to the Booneville HDC ("BHDC") on an emergency basis pursuant to Intervenor Sue Ellen Gibson's request.' Gibson is H.P. 's mother and guardian. Prior to H.P.'s admission to the BHDC, he had been hospitalized for a drug overdose, which was self administered during a suicide attempt. On April 17, 1987, the BHDC approved H.P.'s voluntary admission. In June 1987, Gibson removed H.P. from the BHDC, against medical advice, after he sustained injuries during an altercation with another BHDC resident. H.P. lived with Gibson for several years after she withdrew him from the BHDC.
3The scope ofjudicial review is limited. A court may reverse or modify an agency decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: in violation of constitutional or statutory provisions, in excess of the agency's statutory authority, made upon unlawful procedure, affected by other error or law, not supported by substantial evidence of record, or arbitrary, capricious, or characterized by abuse of discretion. Ark. Code Ann. § 25-15-212.
'By affidavit, Kay Shaw, a team leader at the Alexander HDC states that each time H.P. has been admitted to an HDC, it was pursuant to Gibson's application. Docket entry #70, Ex. 10.
5

Case 4:03-cv-00812-SWW Document 101 Filed 11/23/04 Page 6 of 21
On March 4, 1998, H.P. entered a psychiatric center for treatment of aggressive behavior. On March 25, 1998, the center discharged him to a residential care facility, where his seizures became uncontrollable. On March 26,1998, H.P. entered Ouachita Industries, but he was discharged ten days later because of aggressive and self-abusive behavior. H.P. then entered the Alexander HDC ("AHDC") for a week-long diagnosis and evaluation, after which he was admitted to the Southeast Arkansas HDC ("SEAHDC") on a respite basis. H.P. was admitted to the SEAHDC on a regular basis, pursuant to Gibson's application, on May 28, 1998. On October 22,2003, at Gibson's request, H.P. was admitted to the AHDC, where he currently resides. H.P. has never received a judicial hearing to determine whether he requires institutional care.
R.N. is 43 years old. He is mildly mentally retarded and suffers from mental illness. R.N. was admitted to the SEAHDC on August 3,1999. On August 14,2000, a state court appointed Charlie Harris as R.N.'s guardian, and specifically granted Harris the authority to "enter consent on behalf of [R.N.] to long term care placement ...." Docket entry #70, Ex. 23. Harris, who is not related to R.N., works for a private company that provides community-based services for developmentally disabled people. After Harris became R.N.'s guardian, he immediately began seeking community placement for R.N. See docket entry #70, Ex. 1 at 10-11. Eventually, the SEAHDC located alternative community placement for R.N. and discharged him on January 14,2004.
II. Summary Judgment Standard Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
6

Case 4:03-cv-00812-SWW Document 101 Filed 11/23/04 Page 7 of 21
oflaw." Fed. R. Civ. P. 56(c). As a prerequisite to summary judgment, a moving party must demonstrate "an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317,325 (1986). Once the moving party has properly supported its motion for summary judgment, the non-moving party must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party may not rest on mere allegations or denials of his pleading but must "come forward with 'specific facts showing that there is a genuine issue for tria!.'" /d. at 587 (quoting Fed. R. Civ. P. 56(e)).
"[A1genuine issue of material fact exists if: (1) there is a dispute offact; (2) the disputed
fact is material to the outcome of the case; and (3) the dispute is genuine, that is, a reasonable jury could return a verdict for either party." RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8'h Cir. 1995). The inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita, 475 U.S. at 587 (citations omitted). Further, summary judgment is particularly appropriate where an unresolved issue is primarily legal, rather than factua!. Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1326 (8'h Cir. 1995).
III. Discussion Plaintiffs claim there are no disputed issues of material fact, and they are entitled to judgment as a matter of law. Defendants also seek summary judgment asserting that (I) Plaintiffs lack capacity to bring this lawsuit, (2) Separate Plaintiff R.N. lacks standing, (3) Plaintiffs are not involuntarily confined, (4) Plaintiffs have received due process, (5) Plaintiffs failed to exhaust their administrative remedies, and (6) Plaintiffs cannot show they are similarly
7

Case 4:03-cv-00812-SWW Document 101 Filed 11/23/04 Page 8 of 21
situated to mentally ill people committed to state facilities. The Court will consider the parties' motions for summary judgment at the same time, using Defendants' arguments to guide the discussion.
Capacity to Sue Plaintiffs R.N. and H.P. bring this lawsuit by and through their next friend Susan Pierce.' Defendants argue that Plaintiffs lack the capacity to sue through anyone other than their guardians. They propose that because Plaintiffs' guardians have not joined in the complaint, Pierce, H.P., and R.N. should be dismissed as parties for lack of capacity to sue. Plaintiffs counter that Defendants have waived their right to challenge their capacity to sue. Under the Federal Rules of Civil Procedure, a party must raise lack of capacity by specific negative averment, which includes "such supporting particulars as are peculiarly within the pleader's knowledge." Fed. R. Civ. P. 9(a). Many courts have held that the failure to plead capacity waives the right to object. Wagner Furniture Interiors, Inc. v. Kemner's Georgetown Manor, Inc. 929 F.2d 343, 345-46 (7th Cir. 1991); MTO Maritime Transp. Overseas v. McLendon Forwarding Co., 837 F.2d 215, 218 (5th Cir.1988); Garbincius v. Boston Edison Co., 621 F.2d 1171, 1174 (1st Cir.1980); Summers v. Interstate Tractor and Equipment Co., 466 F.2d 42, 49 (9th Cir. I 972); Marston v. American Employers Ins. Co., 439 F.2d 1035, 1041 (1st Cir.1971). In this case, Defendants filed a motion to dismiss, an answer, and an amended answer-none of which make any reference to Plaintiffs' capacity to sue or their ability to bring
'Pierce is a DRC advocate/investigator, who monitors facilities providing services to people with developmental and physical disabilities. See docket entry #54, ~14.
8

Case 4:03-cv-00812-SWW Document 101 Filed 11/23/04 Page 9 of 21
suit through Pierce. The Court concludes that Defendants' argument comes too late, and they have waived their right to challenge Plaintiffs' capacity to sue.
Standing Defendants assert that because R.N. is no longer subject to the alleged unconstitutional confinement that gave rise to his claims, he lacks standing, and his requests for injunctive and declaratory relief are moot. To have standing, a party must demonstrate "a personal stake in the outcome" and show that he sustained or is "immediately in danger of sustaining some direct injury." City a/Los Angeles v. Lyons, 461 U.S. 95,101-02 (1983) (citations omitted). The alleged injury must be "distinct and palpable" and likely to be redressed by a favorable decision. Valley Forge Christian College v. Americans United/or Separation a/Church and State, Inc., 454 U.S. 464, 475 (1982). A claim for equitable relief is moot "absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again." Randolph v. Rogers, 170 F3d 850, 856 (8th Cir.
I999)(quoting City 0/Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)).
R.N. no longer resides in an HOC, but he asserts that the Court should entertain his claims pursuant to the "capable-of-repetition-yet-evading-review" exception to the mootness doctrine. This exception allows a federal court to hear an otherwise moot claim when the duration of the challenged action is too brief to be fully litigated before its end and there is a reasonable expectation that the same party will be subject to the same action again. Beck v. Missouri State High School Activities Ass 'n, 18 F3d 604, 606 (8th Cir. 1994) "The exception does not apply merely because the issues might recur in another case with the same complaining party.... To raise a reasonable expectation, the parties must show a demonstrated probability of
9

Case 4:03-cv-00812-SWW Document 101 Filed 11/23/04 Page 10 of 21
recurrence; a theoretical possibility is insufficient." Id.(citation omitted). R.N. states that at any time, he could be involuntarily confined at an HDC without due
process oflaw. But he presents no evidence to support a reasonable expectation or demonstrated probability that he will be admitted to an HDC in the future. In fact, the record indicates that Harris prefers that R.N. live in community-based housing. The Court concludes that R.N.'s claims are moot and must be dismissed.
Involuntary Confinement Versus Voluntary Admission The Supreme Court has recognized that civil commitment for any purpose constitutes a deprivation ofliberty that requires due process protection. Addington v. Texas, 441 U.S. 418, 425 (1979). Defendants do not dispute that H.P. has an important liberty interest in not being confined unnecessarily, but they argue that his current placement is voluntary and does not amount to confinement. Defendants maintain that H.P. is voluntarily admitted, not involuntarily confined, because Gibson is H.P.'s legal surrogate, and she requested that the State admit him to an HDC.6 H.P., adjudged to be incapacitated, is incapable of consenting to enter the State's custody. Although Arkansas law gives Gibson the power to petition for H.P.'s "voluntary" admission, her substituted consent cannot make H.P.'s admission voluntary in the real sense of the word. See Doe v. Austin, 848 F.2d 1386 (6th Cir.1988) (state commitment ofmentaliy retarded adults upon application by a guardian is involuntary), cert denied, 488 U.S. 967 (1988).
6Defendants argue that the pivotal question in this case is whether Arkansas law vests court-appointed guardians authority to act on behalf oftheir wards. The Court disagrees. The question is whether Plaintiffs' deprivation ofliberty was accompanied by constitutionally adequate procedure.
10

Case 4:03-cv-00812-SWW Document 101 Filed 11/23/04 Page 11 of 21
Defendants argue that H.P. is not confined because no bars, fences, or locked doors hold him. But the evidence shows that, despite the lack of physical exit barriers at the AHDC, H.P. is not free to leave. Plaintiffs have come forward with evidence that H.P. has expressed to AHDC staff and others that he wants to leave the AHDC. According to the deposition testimony of a former HOC superintendent and the Director of DDS, ifH.P.left the AHDC of his own volition, staff members would attempt to locate him and return him to the center. Further, the evidence shows that Gibson has the final say over whether H.P. will ever leave the center. Docket entry #65, Ex. 2 at 37.
The Court finds that H.P.'s placement at the AHDC amounts to confinement that implicates significant liberty interests and invokes the procedural guarantees of the Due Process Clause.
The Process Due Plaintiffs contend that the procedures governing voluntary admission to HDCs violate the Due Process Clause because they do not require an adversarial pre-deprivation judicial hearing, and they give guardians and parents control over how long their wards and children remain institutionalized. The parties agree that the balancing test set forth in Mathews v. Eldridge. 424 U.S. 319 (1976), governs the Court's inquiry as to whether the State's voluntary admission procedures comply with due process requirements. The Mathews test requires consideration of three factors: One, the private interest that will be affected by the official action; two, the risk of an erroneous deprivation of such interest through the procedures used, and the probative value, if any, of additional or substitute procedural safeguards; and three, the Government's interest,
11

Case 4:03-cv-00812-SWW Document 101 Filed 11/23/04 Page 12 of 21
including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews, 424 U.S. at 335.
The protected private interest at stake is a ward or child's interest in not being confined unnecessarily. In addition to this significant liberty interest, the Court must also consider parents' and guardians' interest in protecting the health and welfare of their children and wards. See Parham v. JR., 442 U.S. 584, 600 (I 979)(noting that minors' interest in not being committed unnecessarily is inextricably linked with parents' interest in and obligation for the welfare and health of their children). The Court acknowledges that parents and guardians sometimes act against the best interest of their children and wards. Although this unfortunate fact is reason for caution, it is not the rule.'
With these interests in mind, the Court must consider whether the challenged procedures adequately reduce the risk of arbitrary commitment decisions. The Supreme Court's opinion in Parham v. JR., 442 U.S. 584 (1979) is particularly instructive. In Parham, the plaintiffs argued that children admitted to Georgia state mental hospitals by parents and guardians were entitled to an adversarial pre-deprivation hearing. But the Court concluded that an independent medical judgement as to a minor's need for institutional care would serve the private and public interests at stake as well as, if not better than, a judicial hearing. The Court prescribed procedural protections as follows:
We conclude that the risk of error inherent in the parental decision to have a child
'Historically, the law has recognized that "natural bonds of affection lead parents to act in the best interest of their children." See Parham v. JR., 442 U.S. 584,602 (1979)(citations omitted). Additionally, Arkansas law requires that a guardian promote and protect the well-being of his or her ward. See Ark. Code Ann. §§ 28-65-105, 28-65-301.
12

Case 4:03-cv-00812-SWW Document 101 Filed 11/23/04 Page 13 of 21
institutionalized for mental health care is sufficiently great that some kind ofinquiry should be made by a "neutral fact finder" to determine whether the statutory requirements for admission are satisfied. That inquiry must carefully probe the child's background using all available sources, including, but not limited to, parents, schools, and other social agencies. Of course, the review must also include an interview with the child. It is necessary that the decisionmaker have the authority to refuse to admit any child who does not satisfY the medical standards for admission. Finally, it is necessary that the child's continuing need for commitment be reviewed periodically by a similarly independent procedure.
Parham v. JR., 442 U.S. 584,606-607 (1979).
The Parham Court acknowledged the fallibility of medical diagnosis but did not accept
that "the shortcomings of specialists can always be avoided by shifting the decision from a
trained specialist .. to an untrained judge or administrative hearing officer." Id. at 584. The
Court contemplated that judicial hearings and other procedural barriers could discourage parents
from seeking needed medical help for their children. Also, the Court recognized that an
adversarial confrontation could adversely affect the relationship between parent and child.
Although Parham concerned civil commitment of mentally ill children by parents or guardians,8 in a companion case decided the same day, the Court held that the procedural
requirements set forth in Parham apply equally to the civil commitment of mentally retarded
minors. Secretary ofPub. Welfare ofPa. v. Institutionalized Juveniles, 442 U.S. 640 (1979).
Likewise, this Court concludes that the due process requirements set forth in Parham dictate the
minimum procedural requirements for committing mentally retarded adults to state
'Although the Court's discussion in Parham focused on whether parents have absolute discretion to decide whether their minor children should be institutionalized, the Court recognized that the statute under review also permitted the voluntary commitment of minors by guardians. Additionally, the Court held that the same procedural protections required for voluntary commitment of minors by parents and guardians apply when the state, rather than a natural parent, makes the request for commitment.
13

Case 4:03-cv-00812-SWW Document 101 Filed 11/23/04 Page 14 of 21
institutions. The challenged statutory procedures in this case require that two physicians determine
that the statutory requisites for admission are met before an application for voluntary admission to an HDC may be approved. This procedure satisfies Parham's pre-admission requirements: However, the Court concludes that Arkansas law falls short in that it does not require that HDC superintendents discharge residents when they no longer require HDC services. Instead, individuals who enter a center by voluntary admission may be discharged upon the application of a parent of guardian. See Ark. Code Ann. § 20-48-12(a).
As explained in Parham, periodic, independent review of the need for continued institutional care provides a necessary check against possible arbitrariness in the initial admission decision. Parham, 442 U.S. at 607 n.IS. Additionally, post-admission review procedures are futile unless the State is charged with an affirmative duty to discharge residents who no longer need HDC services.
Defendants assert that Plaintiffs received due process in the context of state guardianship proceedings. In Arkansas, respondents in guardianship proceedings have the right to notice and a hearing, the right to counsel, and the right to be present and present evidence. A physician, licensed psychologist, or licensed certified social worker must evaluate the respondent's abilities prior to the hearing, and the petitioner must prove incapacity by clear and convincing evidence.
The Court agrees that Arkansas guardianship law provides respondents a wide range of
'Plaintiffs suggest that HDC employees have a financial incentive against rejecting voluntary admission applications. See docket entry #66. However, the record contains no evidence that the admitting physicians required under Ark. Code Ann. § 20-48-406(2)(A) reap financial reward when they determine an individual meets the criteria for admission.
14

Case 4:03-cv-00812-SWW Document 101 Filed 11/23/04 Page 15 of 21
procedural protections; however, those procedures are inadequate to protect against arbitrary commitment decisions. Gibson's positions of guardian and mother make it likely that she will make decisions in H.P.'s best interests, but neither role gives her absolute discretion to make decisions for him in all cases. Arkansas law requires that guardians receive court approval prior to making certain decisions on behalf of their wards. For example, a guardian must receive approval before providing authorization for abortion, sterilization, and psychosurgery or before tenninating a ward's parental or voting rights. See Ark. Code Ann. § 28-65-302.
Although the commitment decision is absent from the statutory list of guardian decisions requiring prior court approval, like those listed, it affects important individual rights. Just as the Parham Court concluded "that a child's rights and the nature of the commitment decision are such that parents cannot always have absolute and unreviewable discretion to decide whether to have a child institutionalized," this Court detennines that a guardian carmot have absolute discretion in deciding whether his or her adult ward will remain institutionalized.
Next, Defendants argue that Arkansas law provides all the process due because "Arkansas circuit courts are expressly empowered to review guardians' placement decisions." Docket entry #69 at 14. 10 Accepting this assertion as fact, the Court does not agree that it lessens the need for State-initiated, periodic assessment of the need for continued institutional care. First, incapacitated individuals incapable oflooking out for their own interests must
JOSection 28-65-303 provides that the circuit court presiding over guardianship proceedings may authorize a guardian to take appropriate action for the commitment of the ward to the state hospital or to place the ward in some other suitable institution. The provision also provides: "Upon petition of the guardian or other interested person, after a hearing of which the guardian of the person and such other persons as the court may direct shall have notice, the court, for good cause shown, may modify, amend, or revoke such an order."
15

Case 4:03-cv-00812-SWW Document 101 Filed 11/23/04 Page 16 of 21
depend on others to take the initiative and file petitions on their behalf. It is unreasonable to expect that the DRC can provide such services for all HDC residents.
Second, the State's interest in reserving limited public resources for the truly needy is not achieved by giving guardians unchecked control over how long their wards receive institutional care at state facilities. Just as admission to HDCs must be subject to an independent medical judgment, the continuing need for institutional services must be reviewed at regular intervals by an independent professional. Further, the Board, or its surrogate, must have the power, and the duty, to discharge any resident who has progressed to the point where institutional care is no longer needed.
Finally, given the procedures currently in place whereby interdisciplinary teams examine residents' continuing need for HDC services, post-admission review procedures coupled with a duty to discharge residents who no longer require HDC services will not unduly burden the State.
The Court concludes that the State's initial admission procedures for the voluntary admission of adults to HDCs comport with due process requirements, but the current postadmission procedures fail to provide the process due. As for a remedy, the Court declines to grant, at this time, Plaintiffs' request for "interim admission and release procedures that comport with minimal standards of due process." The Court is ill equipped to formulate administrative procedures for state institutions, and the principles of federalism and separation of powers prevent the Court from granting the relief requested without giving adequate consideration to the views ofHDC administrators. See Lewis v. Casey, 518 U.S. 343, 363 (l996)(admonishing district court for mandating detailed changes in state prison system without giving adequate consideration to prison administrators); see also Rizzo v. Goode, 423 U.S. 362, 378
16

Case 4:03-cv-00812-SWW Document 101 Filed 11/23/04 Page 17 of 21
(I 976)("When a plaintiff seeks to enjoin the activity of a government agency, even within a unitary court system, his case must contend with 'the well-established rule that the Government has traditionally been granted the widest latitude in the dispatch of its own internal affairs."'). The Court will order Defendants to submit proposed post-admission review procedures tailored to meet the due process requirements set forth in Parham. Plaintiffs will have an opportunity to object to Defendants' proposal. Only after the Court has fully considered the proposed procedures and objections will the Court order injunctive relief.
Exhaustion of State Remedies Defendants argue that Plaintiffs must exhaust their available state remedies before seeking the relief sought in this case. Defendants are mistaken. Plaintiffs allege that their available, post-deprivation state remedies are inadequate, and, for the reasons previously stated, the Court agrees. Under certain circumstances litigants must pursue state remedies before bringing a procedural due process claim. Those circumstances are not present in this case. Equal Protection, Similarly-Situated Requirement Plaintiffs claim they have been denied equal protection because Arkansas law provides more comprehensive procedural protections for mentally ill people facing civil commitment to state-operated mental health facilities than for mentally retarded people facing admission to HDCs. Defendants assert that Plaintiffs' equal protection claim must be dismissed because Plaintiffs have "failed to identify anyone with whom they are similarly situated in all relevant respects who the state has treated more favorably than they." For the reasons that follow, the Court agrees. The Equal Protection Clause does not forbid classifications but generally requires that
17

Case 4:03-cv-00812-SWW Document 101 Filed 11/23/04 Page 18 of 21
government treat similarly situated people alike. Klinger v. Department 0/ Corrections 31 F.3d
727, 731 (8th Cir. 1994). Absent a threshold showing that mentally retarded individuals are similarly situated to the mentally ill, specifically for the purpose of civil commitment decisions, Plaintiffs do not have a viable equal protection claim. Klinger v. Department o/Corrections, 31 F.3d 727, 731 (8th Cir. 1994).
Defendants point to several fundamental differences between mentally retarded and mentally ill people that indicate they are not similarly situated for the purpose of commitment decisions. Defendants' points are taken from the Supreme Court's opinion in Heller v. Doe, 113 S.Ct. 2637 (1993).
[n Heller, 2637 (1993), the Court held that Kentucky statutes governing involuntary admission to state facilities did not violate the equal protection clause by prescribing a lower burden of proof to commit mentally retarded individuals than that required to cornmit mentally ill individuals. The Court noted several pertinent differences between mentally retarded and mentally ill individuals: (I) mental retardation, a developmental disability that becomes apparent before adulthood, is easier to diagnose than mental illness; (2) mental retardation is a permanent, relatively static, condition, but manifestations of mental illness may be sudden and past behavior may not be an adequate predictor of future action; and (3) treatment for the mentally ill is more invasive then "habilitation" for the mentally retarded. See id. at 2642-43.
Plaintiff5 contend that they are similarly situated to mentally ill individuals because "like individuals with mental illness, they are individuals with a disability at risk of involuntary confinement." But they fail to identifY a single specific characteristic shared by mentally ill and mentally retarded people that indicate the two groups have a comparable risk of unnecessary civil commitment. TIle Court concludes that Plaintiffs have failed to show that genuine issues for trial
18

Case 4:03-cv-00812-SWW Document 101 Filed 11/23/04 Page 19 of 21

exist with respect to their equal protection claim.

IV. Conclusion

IT IS THEREFORE ORDERED that Defendants' motions for summary judgment (docket

entries #68, #80, #94) and Plaintiffs' motion for summary judgment (docket entry #65) are

granted in part and denied in part as follows: (1) Separate PlaintiffR.N.'s claims are dismissed

as moot, and R.N. is dismissed as a party to this action; (2) Plaintiffs' equal protection claim is

dismissed with prejudice; and (3) the Court determines that the challenged procedures violate the

Due Process Clause to the extent that they fail to provide adequate post-admission review of the

continued need for HDC placement.

IT IS FURTHER ORDERED that Defendants submit proposed post-admission review

procedures tailored to comport with the constitutional requirements set forth in Parham v. J.R.,

442 U.S. 584 (1979). Defendants have up to and including 20 days from the entry date of this

order in which file their proposal, and Plaintiffs have up to and including 20 days from the filing

date of Defendants' proposal in which to file a response.

IT IS FURTHER ORDERED that Intervenors' motion to strike exhibits from Plaintiffs'

motion for summary jUdgment (docket entry #86) is DENIED AS MOOT."

~DA OF.~ ~ IT IS SO ORDERED THIS

Y

,2004.

r~ym;ImrE"'-"- ~~
UNITED STATES DISTRICT COURT

llIntervenors move to strike certain exhibits submitted by Plaintiffs in support of their

motion for summary judgment. The Court did not consider those exhibits in deciding Plaintiffs'

motion. Accordingly, Intervenors' motion to strike is moot.

1 hiS DOCUM[~!T L~r:::T(ED ON

19

Case 4:03-cv-00812-SWW Document 101 Filed 11/23/04 Page 20 of 21 F I L E COP Y vjt
UNITED STATES DISTRICT COURT Eastern District of Arkansas
U.S. Court House 600 West Capitol, Suite 402 Little Rock, Arkansas 72201-3325
November 24, 2004
* * MAILING CERTIFICATE OF CLERK * *
Re: 4:03-cv-00812.
True and correct copies of the attached were mailed by the clerk to the following:
Janet Cecil Baker, Esq. Disability Rights Center, Inc. Evergreen Place 1100 North University Avenue Suite 201 Little Rock, AR 72207
Dana K. McClain, Esq. Disability Rights Center, Inc. Evergreen Place 1100 North university Avenue Suite 201 Little Rock, AR 72207
Adam H. Buteler, Esq. Disability Rights Center, Inc. Evergreen Place 1100 North University Avenue Suite 201 Little Rock, AR 72207
Breck G. Hopkins, Esq. Arkansas Department of Human Services Office of Chief Counsel 700 Main St:reet Post Office Box 1437 Little Rock, AR 72203-1437
Lori Freno, Esq. Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610

Case 4:03-cv-00812-SWW Document 101 Filed 11/23/04 Page 21 of 21
William F. Sherman, Esq. Attorney at Law Pyramid place 221 West Second Street Suite 504 Little Rock, AR 72201-2585
cc: press

11/24/04 Date:

James W. McCormack, Clerk
V. Turner BY:

 
 Case 4:03-cv-00812-SWW Document 44

Filed 02/12/04 Page 1 of 19
FILED
u.s. DISTRICT COURT
EASTERN DISTRICT ARKANSAS

FEB 12 2004

IN THE UNITED STATES DISTRICT COURT JAM!S!'!4cCOFMAC~ CLERK

EASTERN DISTRICT OF ARKANSAS

BY:\L ,~l/\ (V\ \L'A

WESTERN DIVISION

'- ~ u"p ctffiK

*

H.P. AND R.N., by their next friend, SUSAN PIERCE and DISABILITY

• *

RIGHTS CENTER, INC.

•

Plaintiffs

• *

VS.

* •

•

KURT KNICKREHM, in his official

•

capacity as the Director of the Arkansas

•

Department of Human Services; DR.

•

JAMES C. GREEN, in his official

*

capacity as Director of Developmental

*

Disabilities Services; and KAY

*

BARNES, RON CARMACK, DON A.

*

DUNN, GROVER MILTON EVANS,

*

WESLEY KLUCK, RANDY LANN,

*

AND SUZANN McCOMMON, in their

*

official capacities as members of the Board of Developmental Disabilities

• *

Services

*

Defendants

*

NO: 4:03CV812 SWW

ORDER Plaintiffs, residents of state human development centers, by their next friend, Susan Pierce, and the Disability Rights Center, Inc.,l commenced this action pursuant to 42 U.S.C.

lUnder the Developmental Disabilities Assistance and Bill of Rights Act of 2000, States receive funding for programs directed to the Act's purpose of assuring that developmentally disabled persons and their families have access to services and support "that promote selfdetermination, independence, productivity, and integration and inclusion in all facets of community life, through culturally competent programs .... " 42 U.S.C. § ISOOI(b). As a condition to funding, a state must have in effect a system to protect and advocate the rights of individuals with developmental disabilities. See 42 U.S.c. § IS043(a). Pursuant to this requirement, the Disabilities Rights Center ("DRC") provides advocacy for individuals with
I

Case 4:03-cv-00812-SWW Document 44 Filed 02/12/04 Page 2 of 19
§ 1983 claiming that Arkansas statutory provisions and administrative policies governmg admission to and release from the state's human development centers violate due process and equal protection guarantees. Before the Court are (I) Separate Defendants Barnes, Carmack, Dunn, Evans, Kluck, Lann, and McCommon's motion to dismiss (docket entry #13), Plaintiffs' response (docket entry #25), and Separate Defendants' reply (docket entry #33); (2) Family and Friends of Care Facility Residents and Ellen Sue Gibson's motion to intervene (docket entry #29), Plaintiffs' response (docket entry #35), and the proposed intervenors' reply (docket entry #40); and (3) Family and Friends of Care Facility Residents and Ellen Sue Gibson's motion to redact names of individual plaintiffs (docket entry #29), Plaintiffs' response (docket entry #35), and Movants' reply (docket entry #35).
The Court has carefully considered each motion and supporting brief, as well as each response and reply. For the reasons stated below, the motion to dismiss will be granted in part and denied in part, the motion to intervene will be granted, and the motion to redact names will be denied.
I. Defendants' Motion to Dismiss In reviewing a motion to dismiss brought pursuant to Federal Rule of Civil Procedure l2(b)(6), all facts alleged in the complaint are assumed to be true. The complaint must be reviewed in the light most favorable to the plaintiffand should not be dismissed unless it is clear beyond doubt that the plaintiff can prove no set of facts which would entitle him or her to relief.
developmental disabilities in Arkansas. Under the Act, the DRC is directed to "pursue legal, administrative, and other appropriate remedies or approaches to ensure the protection of, and advocacy for, the rights of such individuals with in the State who are or who may be eligible for treatment, services or habilitation, or who are being considered for a change in ... living arrangements .... " 42 U.S.C. § 15043(a)(2)(A)(i).
2

Case 4:03-cv-00812-SWW Document 44 Filed 02/12/04 Page 3 of 19
Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996). The Court may grant a motion to dismiss on the basis of a dispositive issue oflaw.
Neitzke v. Williams, 490 U.S. 319, 326 (1989). However, a motion to dismiss is not a device for testing the truth ofwhat is asserted or for determining whether the plaintiffhas any evidence to back up his or her allegations. ACLU Foundation v. Barr, 952 F.2d 457, 467 (D.C. Cir. 1991). A motion to dismiss should be granted "as a practical matter ... only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief." Frey v. City ofHerculaneum, 44 F.3d 667, 671 (8th Cir. 1995) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984».
A. Background Plaintiffs seek to have provisions of the Arkansas Mental Retardation Act governing admission to and discharge from human development centers, as well as admission and discharge policies of the Arkansas Division of Developmental Disabilities Services (DDS), declared unconstitutional. An overview of the pertinent statutory provisions and administrative policies follow. The Arkansas Mental Retardation Act provides for the creation and maintenance of six human development centers for the care, custody, treatment, and training of mentally defective individuals. See Ark. Code Ann. § 20-48-403(a). An individual may be eligible for admission to a center if, due to developmental disability, the person is incapable of managing his or her affairs and requires special care. See id § 20-48-404(1). A parent or guardian of a mentally defective person may request that person be admitted to a center by submitting a petition to the Board of DDS ("Board"). See id. § 20-48-405. The
3

Case 4:03-cv-00812-SWW Document 44 Filed 02/12/04 Page 4 of 19
petition must include, among other information, a statement as to whether the parent or guardian desires voluntary admission or commitment. See id. Upon receipt of a petition, the Board conducts an investigation which includes an examination of the ostensibly mentally defective person by two physicians for the purpose of determining the mental status and condition of the individual. See id. § 20-48-404(2). The examining physicians must use standard mental and psychological tests and physical examinations to determine whether the individual is developmentally disabled and in need of special training. See id. § 20-48-404(2).
If the Board determines that statements in the petition for admission are true and the individual is incapable of managing his or her affairs and requires the special care provided at a center, the Board may permit the voluntary admission of the individual for such time as the Board deems necessary. "The admission shall be by action of the board without the necessity of any court procedure." ld. § 20-48-406(b).
Alternatively, the Board may determine that an individual should be admitted to a center by legal commitment only. See id. § 20-48-406(c). In such case, the Board must file a petition for commitment with the probate court of the county in which the individual resides. The probate court must hold a hearing to determine whether the individual should be committed to a center. An individual who enters a center by voluntary admission may be withdrawn from a center at any time pursuant to the application of the parent or guardian who has legal custody of the individual. See id. § 20-48-412. An individual committed by order of a probate court may not be discharged until, in the judgement of the board and center superintendent, his or her condition justifies discharge. ld.
Plaintiffs are both mildly mentally retarded. At the request of their guardians, they have 4

Case 4:03-cv-00812-SWW Document 44 Filed 02/12/04 Page 5 of 19
been admitted to state hwnan development centers. Plaintiffs claim that Defendants violated their constitutional rights by institutionalizing them without providing constitutionally required procedural safeguards, including a judicial hearing. They also claim that their right to equal protection has been violated because Arkansas commitment procedures for mentally ill individuals differ from those that apply to the mentally retarded.
Plaintiffs sue each member of the Board,' Kurt Knickrehm, the Director of the Arkansas Department of Human Services, and James C. Green, the Director of DDS. Plaintiffs sue each Defendant in his or her official capacity only, seeking (I) a declaration that the complained-of admission procedures and policiesJ violate the Due Process and Equal Protection Clauses, (2) interim admission and release procedures that comport with minimal standards of due process and equal protection, and (3) an injunction requiring Defendants to hold judicial hearings for Plaintiffs within a reasonable period of time, and (4) attorney fees and costs.
B. Discussion In support of their motion to dismiss, Defendants argue that (I) Plaintiffs lack standing, (2) pursuant to the Rooker-Feldman doctrine, the Court lacks jurisdiction to hear Plaintiffs' claims; (3) Plaintiffs fail to state viable equal protection claims; (4) Plaintiffs fail to state viable due process claims; and (5) as a matter of federalism and comity, this Court should abstain from
'The Board member defendants include Kay Barnes, Ron Carmack, Don A. Dunn, Grover Evans, Wesley Kluck, Randy Lann, and Suzann McCommon.
JControl of the human development centers rests with the Board, which is authorized to make policy concerning the admission and discharge of development center residents. Plaintiffs attached to the complaint a copy of the Board's admission and discharge policies, which track the admission and discharge provisions set forth in Ark. Code Ann. § 20-48-404 through § 20-48-406.
5

Case 4:03-cv-00812-SWW Document 44 Filed 02/12/04 Page 6 of 19
accepting jurisdiction over Plaintiffs' claims. The Court will consider each argument separately. Standing A plaintiff invoking federal jurisdiction must establish "standing" to pursue a particular
claim. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (\992). As part of the standing requirement, a plaintiff must show, among other things not at issue here, that he or she has suffered "an injury in fact," which the Supreme Court has defined as an invasion of a concrete, legally cognizable interest. Id. at 560-61,573 n. 8, 112 S.C!. 2130, 2143 n. 8.
Defendants contend that Plaintiffs fail to allege an injury in fact because they do not assert that they "should not have been admitted to the human development center in the first place or that they wish to be discharged at the present time.,,4 Without question, Plaintiffs have a concrete, substantial liberty interest in not being confined unnecessarily. Parham v. JR., 442 U.S. 584, 600, 99 S. Ct. 2493,2503 (\979). Furthermore, Plaintiffs' right to due process is absolute and does not change according to whether their admission to state institutions was correct, justified, or necessary. Carey v. Piphus, 435 U.S. 247,266,98 S.C!. 1042, 1054 (\978) (citations omitted). The Court concludes that Plaintiffs have alleged the invasion of a concrete, legally cognizable interest sufficient to establish they have suffered an injury in fact.
Rooker-Feldman Doctrine The Rooker-Feldman doctrine provides generally that (1) original federal jurisdiction over state court judgments is reserved to the United States Supreme Court and (2) federal district courts have no jurisdiction when the constitutional claims raised in a case are "inextricably
4Docket entry # 14, at 6. Plaintiffs do, in fact, allege that they have repeatedly requested to be released from state human development centers. See docket entry #23, ~~ 32, 41.
6

Case 4:03-cv-00812-SWW Document 44 Filed 02/12/04 Page 7 of 19
intertwined" with a state-court decision. See Charchenko v. City o/Stillwater, 47 F.3d 981, 983 (81h Cir. 1995). A claim is inextricably intertwined with a state court decision if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it. Lemonds v. St. Louis County, 222 F.3d 488, 493 (81h Cir. 2000) (citing Pennzoil Co. v. Texaco, Inc., 481 U.S. 1,25,107 S. Ct. 1519, 1533 (1987) (Marshall, J., concurring). In other words, RookerFeldman precludes a federal action if the relief requested would effectively reverse a state court decision or void its ruling.
Defendants characterize this litigation as an attempt to deny Plaintiffs' guardians the right to make placement decisions for their wards. They argue that Rooker-Feldman bars Plaintiffs' claims because Plaintiffs are essentially challenging a state court's guardianship decision. If Plaintiffs prevail with their claims--that the admission and release procedures for the human development centers do not comport with the guarantees of due process and equal protection-their success would neither reverse nor void the state court decisions appointing guardians for Plaintiffs. The Court concludes that Rooker-Feldman does not preclude Plaintiffs' claims.
Equal Protection In support of their equal protection claims, Plaintiffs allege as follows: Plaintiffs ... are being denied equal protection of the law as guaranteed by the Fourteenth Amendment insofar as admission and discharge procedures for the state's human development centers set forth in Ark. Code Ann. § 20-48-40 I et seq. ... and DDS ... policy ... do not provide the same or similar procedures to them as are provided to individuals with mental illness who are admitted to a treatment program or facility pursuant to Ark. Code Ann. § 20-27-201 .... Docket entry #23, '1[49. Defendants assert that under the Supreme Court's decision in Heller v. Doe, 509 U.S. 312
7

Case 4:03-cv-00812-SWW Document 44 Filed 02/12/04 Page 8 of 19
(1993), the rational-basis standard of review applies to Plaintiffs' equal protection claims, and, pursuant to that standard, Plaintiffs' claims must fail. Under the rational-basis standard of review, if a state law classification is rationally related to a legitimate government interest, it will be upheld against an equal protection challenge. City o/Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254 (1985). However, legislation that uses a suspect classification' or impinges a fundamental constitutional right merits stricter scrutiny and will survive only if it is narrowly tailored to serve a compelling governmental interest. Id.
In Heller v. Doe, involuntarily committed mentally retarded individuals challenged the constitutionality of Kentucky's commitment procedures. Those procedures provided that in proceedings to commit individuals on the basis ofmental retardation, the standard ofproofwas clear and convincing evidence, but to commit on the basis of mental illness, the standard was beyond a reasonable doubt. The plaintiffs charged that the disparity in standards had no rational basis and, therefore, violated the Equal Protection Clause.
At the district and appellate Court levels, the parties in Heller proceeded on the theory that rational-basis review governed the plaintiffs' equal protection claims. But before the United States Supreme Court, the plaintiffs argued, for the first time, that heightened scrutiny applied. Without deciding the correct legal standard, the Supreme Court refused to inject a new legal standard so late in the litigation and applied rational-basis review. Under that standard, the Court found a rational basis for the challenged commitment procedures.
'In City o/Cleburne v. Cleburne Living Center, 473 U.S. 432,105 S.Ct. 3249 (1985), the Court held that persons suffering from mental retardation do not constitute a suspect class.
8

Case 4:03-cv-00812-SWW Document 44 Filed 02/12/04 Page 9 of 19
Here, Defendants contend that pursuant to Heller, rational-basis review governs and requires dismissal ofPlaintiffs' equal protection claims.6 As previously explained, the Heller Court made no decision regarding the proper standard of review for equal protection claims involving the commitment of mentally retarded individuals. Further, for the reasons that follow, this Court finds it unnecessary to determine the standard of review governing such claims.
Dissimilar treatment of dissimilarly situated persons does not violate the Equal Protection Clause. Klinger v. Department ofCorrections, 31 F.3d 727, 731 (8th Cir. 1994). For this reason, the initial inquiry in analyzing an equal protection claim is to determine whether the plaintiff is similarly situated to those who allegedly receive favorable treatment. Id. In this case, Plaintiffs do not allege that they are similarly situated to mentally ill individuals who are committed to state institutions7 Accordingly, Plaintiffs fail to allege a violation of the Equal Protection Clause.
Due Process Defendants argue that Plaintiffs fail to state viable due process claims because (1) they fail to allege state action and (2) they failed to exhaust their administrative remedies. For the reasons that follow, these arguments must fail. State Action Section 1983 provides a remedy when a person acting under color of state
6Plaintiffs argue that the challenged admission and discharge procedures impact fundamental liberty interests and, therefore, are subject to heightened judicial scrutiny.
'In Heller v. Doe, 113 S. Ct. 2637 (1993), the Supreme Court noted several pertinent differences between mentally retarded and mentally ill individuals: (1) mental retardation, a developmental disability that becomes apparent before adulthood, is easier to diagnose than mental illness; (2) mental retardation is a permanent, relatively static, condition, but manifestations of mental illness may be sudden and past behavior may not be an adequate predictor of future action; and (3) treat~ent for the mentally ill is more invasive then "habilitation" for the mentally retarded. See id. at 2642-43.
9

Case 4:03-cv-00812-SWW Document 44 Filed 02/12/04 Page 10 of 19
law deprives an individual of a right secured by the Constitution or laws of the United States. See 42 U.S.C. § 1983. Here, Plaintiffs allege they were confined in a state institution, without a hearing, against their wishes, pursuant to a state law they claim is unconstitutional. Plaintiffs have alleged state action. Parham v. J.R., 442 U.S. 548, 600, 99 S. Ct. 2493, 2503 (J979)("It is not disputed that ... the state's involvement in the commitment decision constitutes state action under the Fourteenth Amendment.").
Exhaustion of State Remedies A procedural due process claim is not complete, and thus not ripe for adjudication in federal court, "unless and until the State fails to provide due process." Zinermon v. Burch, 494 U.S. 113, 125, 110 S. Ct. 975, 983 (1990). Defendants propose that Plaintiffs' procedural due process claims are not ripe for review because Plaintiffs have failed to exhaust their state remedies by petitioning for termination of their guardianships. Because Plaintiffs do not wish to have their guardians removed, termination proceedings would not provide an adequate remedy.
Plaintiffs claim they have been deprived of their liberty pursuant to established state commitment procedures, which they contend violate the Due Process Clause. They allege that they are confined in state institutions with no chance of receiving a hearing regarding their confinement. Clearly, the complained-of state action is complete and Plaintiffs' procedural due process claims are ripe for review. Additionally, pursuant to Zinermon v. Burch, 494 U.S. 113, 132, 110 S.Ct. 975, 986-87 (1990), the constitutional adequacy of the challenged commitment procedures may be challenged under § 1983 regardless of whether a state postdeprivation remedy is also available.
10

Case 4:03-cv-00812-SWW Document 44 Filed 02/12/04 Page 11 of 19
Abstention Defendants maintain that the Court should abstain from entertaining Plaintiffs' claims on the basis of the Pullman and Younger abstention doctrines. In Younger v. Harris, 401 U.S. 37, 43-45 (1971), the Supreme Court held that federal courts should abstain from interfering in ongoing state criminal proceedings. Since then, the Younger doctrine has been extended to pending state civil cases, see Huffman v. Pursue, Ltd. 420 U.S. 592, 603-07, 95 S.C!. 1200, (1975), as well as pending state administrative proceedings which are judicial in nature. See Ohio Civil Rights Comm'n v. Dayton Christian Sch., Inc., 477 U.S. 619, 627,106 S.C!. 2718 (1986). "There are essentially three issues that must be addressed in determining whether to invoke the Younger abstention doctrine: (1) whether the action complained of constitutes an ongoing state judicial proceeding; (2) whether the proceedings implicate important state interests; and (3) whether there is an adequate opportunity in the state proceedings to raise constitutional challenges." Night Clubs, Inc. v. City ofFort Smith, 163 F.3d 475, 479 (8th Cir. 1998). If each question is answered affirmatively, a federal court should abstain unless it detects "bad faith, harassment, or some extraordinary circumstance that would make abstention inappropriate." Middlesex County Ethics Comm 'n v. Garden State Bar Ass 'n, 457 Us. 423. 435 (1982). Younger abstention is inapplicable in this case because the action complained of does not constitute "an ongoing state judicial proceeding." Defendants assert that because a state court appointed guardians for Plaintiffs, there are on-going judicial proceedings. However, nothing in the record indicates that Plaintiffs' guardianship proceedings are ongoing. More importantly, even if the matter of Plaintiffs' guardianships were properly characterized as ongoing state
II

Case 4:03-cv-00812-SWW Document 44 Filed 02/12/04 Page 12 of 19
judicial proceedings, Plaintiffs would have no opportunity to pursue their present claims in a guardianship proceeding.
The Pullman abstention doctrine, named for the Supreme Court's decision in Railroad Commission ofTex. v. Pullman Co .. 312 U.S. 496, 61 S. Ct. 643 (1941), permits federal court abstention on unsettled questions of state law that impact the resolution of federal constitutional claims. Under Pullman abstention, federal courts may defer to state court interpretation of state law only where an issue of state law is uncertain and fairly subject to an interpretation that would render unnecessary or substantially modifY the federal constitutional question"
In this case, abstention under Pullman is unwarranted because the challenged state laws are not unclear. The challenged provisions clearly provide that the Board may permit the voluntary admission of an individual to a human development center, at the request of a guardian, "without the necessity of any court procedure." Ark. Code Ann. § 20-48-406(b). Plaintiffs contend that the ability to commit mentally retarded wards without court procedure violates the Due Process Clause, and the Court can conceive of no interpretation ofthe challenged statutory provisions that would render unnecessary the resolution of Plaintiffs' due process claim.
Federal courts have an unflagging obligation to exercise jurisdiction in proper cases.
8The Eighth Circuit has recognized five factors to consider when determining whether to abstain under the Pullman doctrine: (I) the effect abstention would have on the rights to be protected by considering the nature of both the right and necessary remedy; (2) available state remedies; (3) whether the challenged state law is unclear; (4) whether the challenged state law is fairly susceptible to an interpretation that would avoid any federal constitutional question; and (5) whether abstention will avoid unnecessary federal interference in state operations. See George v. Parratt, 602 F.2d 818, 820-22 (8th Cir.1979).
12

Case 4:03-cv-00812-SWW Document 44 Filed 02/12/04 Page 13 of 19

Only under narrow circumstances, in order to preserve traditional principles of equity, comity,

and federalism, is abstention appropriate. The Court concludes that abstention is unwarranted in

this case.

II. Motion to Intervene

The Families and Friends of Care Facility Residents, a non-profit corporation whose

members include guardians and parents of individuals who reside or have resided in the state's

human development centers, and Ellen Sue Gibson, the mother and guardian of Separate Plaintiff

H.P. (hereinafter collectively referred to as "Movants"), filed a motion to intervene in this case

(see docket entry #29). Plaintiffs filed a response objecting to intervention (docket entry #35),

and Defendants filed responses stating they have no objection to intervention (docket entries #32,

#34). For the reasons that follow, the motion to intervene will be granted.

Federal Rule of Civil Procedure 24(a)(2) provides that a party seeking mandatory

intervention must make a timely9 application establishing that (l) the proposed intervenor has a

recognized interest in the subject matter of the litigation; (2) the interest might be impaired by the

disposition of the case; and (3) the interest will not be adequately protected by the existing

parties. A proposed intervenor must satisfy all three conditions.

In support of their motion, Movants state they have a vital interest in the care and

placement of their children and wards. They reason that this interest might be impaired because

9 Movants filed their motion to intervene early in the proceedings, less than one month after Plaintiffs filed their initial complaint. Plaintiffs do not dispute that Movants' motion for intervention is timely, and the Court finds that such is the case.
13

Case 4:03-cv-00812-SWW Document 44 Filed 02/12/04 Page 14 of 19
the additional commitment procedures sought by PlaintiffslO would make it more difficult and costly for Movants to obtain necessary services for their children and wards.
Without question, guardians have a legal obligation to further the interests of their wards, and parents have a substantial interest in their children's welfare. Heller v. Doe, 509 U.S. 312, 331, 113 S.Ct. 2637, 2648 (1993). However, Plaintiffs argue that the subject matter of this lawsuit-Plaintiffs' right to due process-is independent and separate from any interest Movants' may possess. The Court disagrees. As explained by the Supreme Court in Parham v. JR., 99 S. Ct. 2493 (1979), the interest in not being committed and a parent's or guardian'S interest in and obligation for the welfare of their child or ward are inextricably linked, and the private interest at stake is a combination of these concerns. ld. at 2502. The Court agrees that Movants have a vital interest in the subject matter ofthis litigation, which might be impaired by disposition of the case.
Next, the Court must consider whether Movants' interests would be adequately protected by the existing parties. "The 'inadequate representation' condition is satisfied if the proposed intervenor shows that the representation of its interests by the current party or parties ... 'may be' inadequate. The burden for making this showing 'should be treated as minimal.' Doubts regarding the propriety of permitting intervention should be resolved in favor of allowing it,
laThe additional procedures include a pre-deprivation judicial hearing, the right to be present at the hearing, the right to effective assistance of appointed counsel, the right to present evidence, the right to cross-examine witnesses, the right to view all petitions and reports, the right to subpoena witnesses, the right to periodic judicial review, the right to be placed in the least restrictive environment, the right to adequate and timely notice of rights, and a requirement that the state prove by clear and convincing evidence that persons sought to be committed pose a substantial risk of harm to themselves or others.
14

Case 4:03-cv-00812-SWW Document 44 Filed 02/12/04 Page 15 of 19
because this serves the judicial system's interest in resolving all related controversies in a single action." Sierra Club v. Robertson, 960 F.2d 83, 85-86 (8th Cir. 1992).
Plaintiffs argue that the State will adequately represent the Movants' interests. It is true that when a party to a lawsuit is an arm or agency of the government, the governmental entity is presumed to represent the interests of its citizens as parens patriae, or "parent of the country." Mausolfv. Babbitt, 85 F.3d 1295, 1303 (8th Cir.1996). However, a proposed intervenor may rebut the presumption of adequate representation by showing that he or she stands to gain or lose from the litigation in a way different from the public at large. Chiglo v. City ofPreSion, 104 F.3d 185, 187-88 (8th Cir. I 997)("[T]he government only represents the citizen to the extent his interests coincide with the public interest."). It is clear that in this case, as parents and guardians of human development center residents, Movants have a much greater stake in the outcome of this case than the public at large. In sum, the Court finds that Movants' satisfY the conditions for intervention under Fed. R. Civ. P. 24(a)(2).
III. Motion to Redact Names Pleadings and other filings submitted by Disability Rights Center attorneys, on behalf of Plaintiffs, reveal Plaintiffs' full names. Intervenors, the FFCFR and Ellen Sue Gibson, state that they do not consent to the use of Plaintiffs' names in this litigation. They contend that by using Plaintiffs' full names in documents filed with the Court, the Disability Rights Center has violated Plaintiffs' privacy rights. Federal Rule of Civil Procedure lO(a) requires that every pleading contain a separate caption containing, among other things, the title of the action including the "names of all the parties." Additionally, Rule 17(a) states: "Every action shall be prosecuted in the name of the
IS

Case 4:03-cv-00812-SWW Document 44 Filed 02/12/04 Page 16 of 19
real party in interest." There is precedent for departing from these rules and permitting a plaintiff to proceed under a pseudonym. See Doe v. Stegall, 653 F.2d 180 (5th Cir. 1981). However, given the strong First Amendment interest in public proceedings, before a party may proceed anonymously, it must be established that his or her interest in privacy is outweighted by the public's right to know. Luckett v. Beaudet, 21 F. Supp. 2d 1029 (D. Minn. 1998).
In support of their motion, Intervenors state generally that publication of Plaintiffs' names violates their right to privacy. However, Intervenors provide no information indicating that Plaintiffs have a legitimate expectation of privacy concerning information that would be revealed in this proceeding. Accordingly, the motion to redact will be denied.
IV. Conclusion IT IS THEREFORE ORDERED that Separate Defendants' motion to dismiss (docket entry #13) is GRANTED IN PART AND DENIED IN PART. Plaintiffs' equal protection claims are dismissed without prejudice for failure to state a claim. Plaintiffs may proceed with their procedural due process claims. IT IS FURTHER ORDERED that Family and Friends of Care Facility Residents and Ellen Sue Gibson's motion to intervene (docket entry #29-1) is hereby GRANTED. IT IS FURTHER ORDERED that Family and Friends of Care Facility Residents and Ellen Sue Gibson's motion to redact names (docket entry #29-2) is DENIED. IT IS FURTHER ORDERED that Attorney Griffin 1. Stockley's motion to withdraw as
counsel of record for Plaintiffs (docket entry #43Y1 is GRANTED. The Clerk of the Court is
llAttorney Stockley, one of Plaintiffs' attorneys of record, states he has accepted other employment and will be leaving the Disability Rights Center.
16

Case 4:03-cv-00812-SWW Document 44 Filed 02/12/04 Page 17 of 19
directed to remove Mr. Stockley as an attorney of record in this case. ~
IT IS SO ORDERED THIS ~ DAY OF FEBRUARY, 2004.

CHIEF JUDGE UNITED STATES DISTRICT COURT

1-:

or • 0'..°..;,-° , ,.,0.,.h.i--". _,<"fT"L'-RED ON

P,yoKEl SHrET IN C0MPUP,CE

wm: RULE:: ANDIOR 79(a) FRCP
'JNa -!3-()1f:... BY-v't=ll....\----

17

Case 4:03-cv-00812-SWW Document 44 Filed 02/12/04 Page 18 of 19
F I L E COP Y vjt
UNITED STATES DISTRICT COURT Eastern District of Arkansas
U.S. Court House 600 West Capitol, Suite 402 Little Rock, Arkansas 72201-3325
February 13, 2004
* * MAILING CERTIFICATE OF CLERK * *
Re: 4:03-cv-00812.
True and correct copies of the attached were mailed by the clerk to the following:
Griffin J. Stockley, Esq. Disability Rights Center, Inc. Evergreen Place 1100 North University Avenue Suite 201 Little Rock, AR 72207
Janet Cecil Baker, Esq. Disability Rights Center, Inc. Evergreen Place 1100 North University Avenue Suite 201 Little Rock, AR 72207
Dana K. McClain, Esq. Disability Rights Center, Inc. Evergreen Place 1100 North University Avenue Suite 201 Little Rock, AR 72207
Adam H. Butler, Esq. Disability Rights Center, Inc. Evergreen Place 1100 North University Avenue Suite 201 Little Rock, AR 72207
Breck G. Hopkins, Esq. Arkansas Department of Human Services Office of Chief Counsel 700 Main Street Post Office Box 1437 Little Rock, AR 72203-1437

Case 4:03-cv-00812-SWW Document 44 Filed 02/12/04 Page 19 of 19
Lori Freno, Esq. Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610
William F. Sherman, Esq. Attorney at Law Pyramid Place 221 West Second Street Suite 504 Little Rock, AR 72201-2585
cc: press

2/13/04 Date:

James W. McCormack, Clerk
V. Turner BY:

 
 , > Case 4:03-cv-00812-SWW Document 116 Filed 06/09/05 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

~'6'31l.:l['1WLlI!I=ClT'TD~~SAS -~

H.P. AND R.N., by their next friend,

*

SUSAN PIERCE and DISABILITY

*

RIGHTS CENTER, INC.

.**

JUNO 9j~D05

Plaintiffs

*

*

VS.

*

*

KURT KNICKREHM, in his official

*

. capacity as the Director of the Arkansas

*

Department of Human Services; ET AL.

*

*

Defendants

*

NO: 4:03CV812 SWW

ORDER Plaintiffs H.P. and R.N., mentally retarded adults admitted to state-operated human development centers ("HOC's"), and the Disability Rights Center, Inc. ("DRC"), commenced this lawsuit pursuant to 42 U.S.C. § 1983 against the Director of~e Arkansas Department of Human Services ("ADHS") and officers of the ADHS Division of Disability Services ("DDS"), claiming that they have been committed to HDC's pursuant to statutory and administrative procedures that violate due process and equal protection guarantees. On November 23, 2004, the Court denied in part and granted in part the parties' motions for summary judgment. The Court concluded that no genuine issues exist regarding Plaintiffs' equal protection claims and that the State's pre-admission procedures for "voluntary admission" to HDC's comport with due process requirements. However, the Court ruled that, pursuant to Parham v. J.R., 442 U.S. 584 (1979), the State's post-admission procedures fail to provide adequate procedural safeguards because they contain no requirement that the State discharge HDC residents who no longer require HDC services. See docket entry #101, at 14.

1

\

116

\

· ' Case 4:03-cv-00812-SWW Document 116 Filed 06/09/05 Page 2 of 6
The Court ordered Defendants to submit proposed post-admission review procedures tailored to meet the due process requirements set forth in Parham. Defendants submitted proposed procedures (docket entry #104), and Plaintiffs and Intervenors responded with objections (docket entries 106, #110). Defendants filed amended proposed procedures in reply to the objections (docket entry #113), and Plaintiffs filed a response (docket entry #115). After careful consideration, and for the reasons that follow, the Court adopts Defendants' amended post-admission review procedures as provided in the final judgment entered together with this order.
I. Defendants submit their proposed post-admission review procedures in the form of admission and discharge rules. See docket entry #113, attachment. The proposed rules begin with the following policy statement: "This. . . replaces existing policies in order to clarify that admission and continued residence at Human Development Centers is limited to eligible individuals who need and can benefit from care and active treatment at an intermediate care facility for the mentally retarded." !d., at I. The proposed rules require that at least every twelve months after an individual is admitted to an HDC, he or she receives an "annual status review" by an interdisciplinary team of medical professionals, including a licensed physician.! Id., at II(a)(3), II(a)(12), III(b). As part of an annual status review, interdisciplinary teams will, among other things, "determine the client's continued HDC eligibility." Id. at II(a)(3). Under the proposed rules,. an individual is
!The Court understands that the proposed annual status reviews are in addition to the ongoing evaluation ofHDC residents, which is required under current ADHS policy. See docket entry #70, Arkansas Department of Human Services Division of Developmental Disabilities Services DDS Director's Office Policy Manual, Policy No. 1086 (stating that each HDC provides "on-going evaluation, planning, 24-hour supervision, coordination, and integration ofhealth and habiJitative services to help each individual function at his or her greatest ability").
2

Case 4:03-cv-00812-SWW Document 116 Filed 06/09/05 Page 3 of 6
eligible for admission to an HDC ifhe or she is eligible for developmental disabilities services,2 in need of and able to benefit from active treatment, and unable to access appropriate and adequate developmental disabilities services in a less restrictive alternative. !d. at II(b)-(c). The proposed rules state that if an individual is admitted to an HDC by means other than a court order, "[e]ven without a request for discharge, an HDC Superintendent must discharge an individual upon a determination by HDC professionals that the individual is no longer eligible for admission or retention." Id. at II(c)(B)(ii).
Plaintiffs assert that the proposed rules fail to provide adequate procedural due process because they lack traditional procedures associated with judicial decisionmaking. However, for the reasons stated in the memorandum opinion and order entered November 23, 2004, the Court has determined that an independent, medical decisionmaking process is sufficient, under the Due Process Clause, to determine whether an individual qualifies for admission and retention at an HDC.
Intervenors express concern that the Court has failed "to address the possible circumstances of the individual who is deemed by the Interdisciplinary Team as suitable for [discharge and] community placement but there are no community facilities capable of providing adequate care." Docket entry #110. In response to Intervenors' concern, Defendants' amended rules clarify that a resident ceases to be eligible for admission or retention when "he or she is no longer in need of and able to benefit from active treatment provided at the HDC and is able to access appropriate and adequate services in another setting." Docket entry #113, attached proposed rules at II(c)(5)(B)(ii).
2A person may be eligible for admission to an HDC if, due to developmental disability, he or she is incapable of managing the affairs of life and requires special care. See id. § 20-48404(1).
3

•

Case 4:03-cv-00812-SWW Document 116 Filed 06/09/05 Page 4 of 6

Intervenors object to several provisions in the proposed rules related to criteria for

admission to HDC's. Additionally, they object to a statement included in the rules that

"discharge planning begins upon admission." Intervenors fear that the proposed rules have the

potential to deny services to individuals who need them. Whether the State has an obligation to

provide HDC services is not at issue in this case. Accordingly, the Court will not address

Intervenors' objections related to the State's criteria for admission to HDC's.

Finally, Intervenors object that the proposed rules contain no assurance that guardians

and parents will continue to serve on HDC interdisciplinary teams. Defendants state that, in

accordance with several regulations governing the operation ofHDC's, guardians and parents

will most certainly continue to serve on interdisciplinary teams.

The Court concludes that Defendants' amended proposed rules (docket entry #113) are

consistent with constitutional guarantees and provide an adequate remedy in this case.

IT IS THEREFORE ORDERED that Defendants shall implement, with all possible

speed, the proposed Division of Developmental Disabilities Services Human Development

Center Admission and Discharge Rules submitted February 23, 2005 (docket entry #113).

Pursuant to the judgment entered together with this order, this case is hereby DISMISSED.

~ IT IS SO ORDERED THIS

DAY OF JUNE, 2005.

~?U~

THIS D2CUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE
')~It;l/~)jO?a~/~h
4

Case 4:03-cv-00812-SWW Document 116 Filed 06/09/05 Page 5 of 6 F I L E COP Y bt
UNITED STATES DISTRICT COURT Eastern District of Arkansas
U.S. Court House 600 West Capitol, Suite 402 Little Rock, Arkansas 72201-3325
June 10, 2005
* * MAILING CERTIFICATE OF CLERK * *
Re: 4:03-cv-00B12.
True and correct copies of the attached were mailed by the clerk to the following:
Janet Cecil Baker, Esq. Disability Rights Center, Inc. Evergreen Place 1100 North University Avenue Suite 201 Little Rock, AR 72207
Dana K. McClain, Esq. Disability Rights Center, Inc. Evergreen Place 1100 North University Avenue Suite 201 Little Rock, AR 72207
Adam H. Butler, Esq. Disability Rights Center, Inc. Evergreen Place 1100 North University Avenue Suite 201 Little Rock, AR 72207
Breck G. Hopkins, Esq. Arkansas Department of Human Services Office of Chief Counsel 700 Main Street Post Office Box 1437 Little Rock, AR 72203-1437
Lori Freno, Esq. Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610

, . Case 4:03-cv-00812-SWW Document 116
William F. Sherman, Esq. Attorney at Law Pyramid Place 221 West Second Street Suite 504 Little Rock, AR 72201-2585

Filed 06/09/05 Page 6 of 6

press, post

Date:

6/10/05

James W. McCormack, Clerk
BTyree BY:

 
 Case 4:03-cv-00812-SWW Document 130 Filed 09/16/05 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

H.P. AND R.N., by their next friend,

*

SUSAN PIERCE and DISABILITY

*

RIGHTS CENTER, INC.

*

*

Plaintiffs

*

*

VS.

*

*

KURT KNICKREHM, in his official

*

capacity as the Director of the Arkansas *

Department of Human Services; ET AL. *

*

Defendants

*

NO: 4:03CV812 SWW

ORDER Before the Court is Plaintiffs’ motion seeking $24,038 in attorney fees and $2,728 in costs (docket entry #118) and Defendants’ response in objection (docket entry #120). After careful consideration, and for the reasons that follow, the Court determines that Plaintiffs’ motion should be granted in part and denied in part.
I. Plaintiffs, two mentally retarded adult males, commenced this lawsuit pursuant to 42 U.S.C. § 1983 against the Director of the Arkansas Department of Human Services (“ADHS”) and officers of the ADHS Division of Disability Services (“DDS”), claiming that Plaintiffs had been committed to a state human development center (“HDC”) pursuant to statutory and administrative procedures that violate due process and equal protection guarantees. By way of relief, Plaintiffs sought the following: (1) a declaration that the complained-of

1

Case 4:03-cv-00812-SWW Document 130 Filed 09/16/05 Page 2 of 7
admission and discharge procedures violate their rights to due process and equal protection of the law and (2) a judicial hearing, comporting with procedural due process, regarding Plaintiff Porter’s HDC placement. See docket entry #54.
On November 23, 2004, the Court entered summary judgment in Defendants’ favor as to Plaintiffs’ equal protection claims. The Court ruled, however, that the State’s post-admission procedures failed to provide adequate procedural safeguards because they contained no requirement that the State discharge HDC residents who no longer require HDC services. See docket entry #101, at 14. The Court ordered Defendants to submit proposed post-admission review procedures that would remedy this constitutional infirmity.
Defendants submitted proposed procedures, requiring that HDC superintendents discharge an HDC resident upon a determination by HDC professionals that the resident is no longer eligible for admission or retention. Additionally, the proposed rules required that every HDC resident receive an annual status review by an interdisciplinary team of medical professionals, including a licensed physician. After considering Plaintiffs’ and Intervenors’ objections to the proposed rules, the Court adopted Defendants’ proposed procedures, finding that they provide an adequate remedy in this case.
II. The case is before the Court on Plaintiffs’ motion for attorneys’ fees and costs.1 Title 42 U.S.C. § 1988 provides that in federal civil rights actions, “the court, in its discretion, may allow
1Although the parties have filed notices of appeal from the final judgment, this court has jurisdiction to decide Plaintiffs’ motion for attorney’s fees. See Harmon v. United States, 101 F.3d 574, 587 (8th Cir. 1996)(“But where the issue of attorney fees is not before the court of appeals . . . the district court may consider it.”).
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the prevailing party . . . a reasonable attorney’s fee as part of the costs.” 28 U.S.C. § 1988. The standard for determining whether a party has prevailed for purposes of §1988 is whether “actual relief on the merits of [his or her] claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Jenkins v. Missouri, 127 F.3d 709, 713 (8th Cir. 1997) (quoting Farrar v. Hobby, 506 U.S. 103, 111-12 (1992)).
Under the Supreme Court’s generous formulation of the term “prevailing party”, “plaintiffs may be considered ‘prevailing parties . . . if they succeed on any significant issue in litigation which achieves some of the benefit . . . sought in bringing suit.’” Hensley v. Eckerhart, 103 S. Ct. 1933, 1939 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (1st Cir. 1978)).
Defendants acknowledge that the promulgation of new rules governing HDC postadmission review and discharge procedures effects a legal change. However, they argue that the procedures set forth in the new rules are merely a “formalization” of the “interdisciplinary team review process” already in place before Plaintiffs initiated this lawsuit. According to Defendants, Plaintiffs gained a small victory, unworthy of prevailing party status.
It is undisputed that before the Court’s judgment in this case, the rules governing HDC post-admission review and discharge failed to charge HDC superintendents with the duty to discharge HDC residents who no longer qualified for admission. According to the deposition testimony of Defendant Green, the Director of DDS, before the new rules, the ultimate decision of whether to discharge an ADC resident belonged to the resident’s parent or guardian. See docket entry #65, Ex. 2, at 35-36. The new rules governing HDC changed the legal relationship
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between Defendants and Plaintiffs by charging Defendants with a legal duty. The Court concludes that although Plaintiffs prevailed on a discrete issue–that is, whether the State’s postadmission review and discharge procedures comport with due process guarantees–they are nonetheless prevailing parties.
It is now the Court’s task to determine a reasonable award related to Plaintiffs’ due process claims.2 In calculating a fee award, the Court will use the “lodestar” method, which entails calculating the number of hours reasonably expended by the relevant market rate for legal services.
Reasonable Hours “The most important factor in determining what is a reasonable fee is the magnitude of the plaintiff’s success in the case as a whole.” Jenkins, 127 F.3d 709, 716 (8th Cir. 1997)(citing Hensley v. Eckerhart, 103 S. Ct. 1933, 1941 (1983)). If “a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount.” Hensley, 103 S. Ct. at 1941. “This will be true even where the plaintiff’s claims were interrelated, nonfrivolous, and raised in good faith.” Id. Compared to the relief sought in this case, Plaintiffs achieved only limited success. Plaintiffs sought a declaration that the States’ pre-admission procedures were unconstitutional, but the Court found no constitutional defect regarding the State’s pre-admission procedures. Additionally, Plaintiffs sought, but did not receive, the right to a hearing with procedural
2Recognizing that the facts and legal standards applicable to Plaintiffs’ equal protection claims are unrelated to their due process claims, Plaintiffs seek no fees related to work regarding their equal protection claims.
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protections including: (a) the right to be present; (b) the right to appointed counsel; (c) the right to cross examine witnesses; (d) the right to view petitions and reports; (e) the right to subpoena witnesses; (f) the right to periodic judicial review; (g) the right to be placed in the least restrictive environment; (h) the right to timely notice of rights. See docket entry #66, at 3-4. Plaintiffs also sought a ruling that before an individual can be admitted to an HDC, the State must prove, by clear and convincing evidence, that the candidate for admission poses a substantial risk of harm to himself or herself or others and requires a level of supervision and care that can only be provided at a HDC. Id.
Because it is impossible to identify specific hours related to the limited relief granted in this case, the Court concludes that the most equitable method to account for Plaintiffs’ limited success is to award fees for 25% of the compensable hours of work for which Plaintiffs seek attorney fees.3
Reasonable Rate “As a general rule, a reasonable hourly rate is the prevailing market rate, that is, ‘the ordinary rate for similar work in the community where the case has been litigated.’” Moysis v. DTG Datanet, 278 F.3d 819, 828 -829 (8th Cir. 2002)(quoting Emery v. Hunt,272 F.3d 1042, 1047 (8th Cir.2001)). The fee applicant bears the burden of establishing entitlement to an award, including the requested hourly rate. Plaintiffs seek fees for 18.10 hours of work performed by Brian Wolfman, an attorney
3In Hensley, the Supreme Court explained, “There is no precise rule for making these determinations. The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success. The court necessarily has discretion in making this equitable judgment.” Hensley v. Eckerhart, 103 S. Ct. 1933, 1941 (1983).
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from the District of Columbia. Plaintiffs request $380 per hour for Wolfman’s work based on the Laffey matrix, a uniform index used by courts in the D.C. Circuit to calculate fees in § 1983 cases. See Laffey v. Northwest Airlines, Inc., 572 F.Supp. 354 (D.D.C.1983), rev'd on other grounds , 746 F.2d 4 (D.C. Cir. 1984). Defendants object that the requested rate for Wolfman’s work is excessive. The Court agrees that the $225 hourly rate requested for work performed by Attorney Grif Stokely, who has 30 years experience in civil rights matters, is more reflective of the ordinary rate for similar work in the Little Rock community. Accordingly, the Court will award Plaintiffs $225 per hour for work performed by Attorney Wolfman.
Costs Plaintiffs seek reimbursement of litigation costs totaling $2,728. See docket entry #118, Ex. 1. Among the costs itemized are copying and postage expenses, and Defendants argue that such costs are nontaxable under 28 U.S.C. § 1920. Section 1920 permits the Court to tax fees for exemplification and copies of papers necessarily obtained for use in the case. Additionally, under § 1988, a reasonable attorney’s fee award may include reasonable out-of–pocket expenses incurred by an attorney and normally charged to a fee-paying client. See Pinkham v. Camex, Inc., 84 F.3d 292, 294-95 (8th Cir. 1996). The Court finds that Plaintiffs’ postage and copying expenses are recoverable under these provision and that they are reasonable and not excessive. Additionally, the Court finds that the remaining costs itemized by Plaintiffs are taxable under § 1920 and are reasonable in amount. IT IS THEREFORE ORDERED that Plaintiffs’ motion for attorney’s fees and costs (docket entry #118) is GRANTED IN PART AND DENIED IN PART as follows:
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Case 4:03-cv-00812-SWW Document 130 Filed 09/16/05 Page 7 of 7 Plaintiffs are granted $5,329.93 in attorney’s fees ($21,319.71 x 25%),4 pursuant to § 1988, and $2,640.79 in costs pursuant to 28 U.S.C. § 1920 and Federal Rule of Civil Procedure 54(d)(1).
IT IS SO ORDERED THIS 16th DAY OF SEPTEMBER, 2005. /s/Susan Webber Wright UNITED STATES DISTRICT JUDGE
4Plaintiffs requested a total $24,038 in attorney’s fees. See docket entry #118, Ex. 1. Because the Court finds that Plaintiffs are entitled to only $225 per hour for work by Attorney Wolfman, rather than the requested $380 per hour, the Court reduced Plaintiffs’ award by $2,805.50. Additionally, the Court categorized Plaintiffs’ postage expense, $87.21, as out-ofpocket expenses, recoverable under § 1988 as attorney’s fees.
7

 
 , •

Case 4:03-cv-00812-SWW Document 66 Filed 07/27/04 Page 1 of 34

&.8rufo!4ED

ERN OlsTRICcTT COURT

'ARIW/

IN THE UNITED STATES DISTRICT couRJUL 272

EASTERN DISTRICT OF ARI(MI(~§ W

00+

SAs

WESTERN DIVISION

BY:~~ACI( CL£:RI(

~

HARVE PORTER, et aI., Plaintiffs,
vs. KURT KNICKREHM, et al.,
Defendants, and FAMILIES AND FRIENDS OF CARE FACILITY RESIDENTS AND ELLEN SUE GIBSON
Defendant Intervenors.

) ) ) ) ) No.4:03 CV008l2SWW
) ) ) ) ) ) ) ) ) ) )

PLAINTIFFS' BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ON FOURTEENTH AMENDMENT DUE PROCESS AND EOUAL PROTECTION CLAIMS
Plaintiffs seek summary jUdgment on their Due Process and Equal Protection claims pursuant to Federal Rule of Civil Procedure 56 and Arkansas Local Rule 56.1. As demonstrated below, the motion should be granted on both claims because there are no disputed issues of material fact and Plaintiffs are entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, lnc., 477 U.S. 242, 248 (1986); Arnold v. City oj" Columbia, Mo., 197 FJd 1217, 1220 (8th Cir. 1999).

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I. INTRODUCTION Plaintiffs brought this action to challenge the constitutionality of Ark. Code Ann. § 2048-401 et seq. (Michie 2003 Supp!.) and Development Disability Services Director's Office
Policy Manual ("Manual") numbers 1020, 1037, 1053, and 1086 because Arkansas law and policies fail to provide adequate judicial hearings at which adults whose liberty is at stake can contest the state's effort to institutionalize them.
Plaintiff Harve Porter is an adult diagnosed with moderate mental retardation who is currently involuntarily confined at the state's Alexander Human Development Center ("ALHDC). Plaintiff Robert Norman is an adult diagnosed with mild mental retardation and mental illness who was involuntarily confined at the state's Southeast Arkansas Human Development Center ("SEAHDC") at the time this action was filed. Mr. Norman is currently in a community placement but remains at risk of being involuntarily confined in a state Human Development Center ("HDC"). See Olmsteadv. L.C ex rei. Zimring, 527 U.S. 581, 594 n.6 (1999). Plaintiff Disability Rights Center, Inc., ("DRC") is a federally funded, non-profit organization dedicated to advancing the rights of individuals with disabilities in Arkansas, including individuals with mental retardation. See 42 U.S.c. § 15043 et seq.
Plaintiffs seek a declaration that certain provisions of the Arkansas Mental Retardation Act and policies of the Arkansas Division of Developmental Disabilities Services governing admission and discharge from HDCs are unconstitutional. They also seek an order granting Harve Porter a judicial hearing in accordance with procedures and standards comporting with due process of law as mandated by the Court until such time as the Arkansas General Assembly enacts constitutional procedures pertaining to admission and discharge.

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II. STATEMENT OF THE CASE
A. Introduction. On October 14,2003, Plaintiffs Harve porter and Robert Norman, two adults with mental retardation, and DRC filed their complaint against two employees of the Department of Human Services and the members of the Board of Developmental Disabilities Services ("Board") in their official capacities. I The complaint alleged that defendants had involuntarily confined them in an HDC in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Specifically, Plaintiffs Porter and Norman alleged that the state's admission and discharge procedures for its HDCs set forth in Ark. Code Ann. § 20-48-401 et seq. (Michie 2003 Supp!.) and Manual numbers 1020, 1037, 1053 and 1086 are unconstitutional because they do not provide adequate judicial hearings at which persons whose liberty is at stake can contest the state's effort to institutionalize them.
Plaintiffs maintain that such hearings must include the following due process protections: (a) the right to be present; (b) the right to appointed counsel, if indigent; (c) the right to present evidence in his or her own behalf; (d) the right to cross-examine witnesses; (e) the right to view any and all petitions and reports in the court file of his or her case; (f) the right to subpoena witnesses; (g) the right to periodic judicial review; (h) the right to be placed in the least restrictive environment; and (i) the right to adequate and timely notice of the above rights.
In addition, Plaintiffs maintain that before the state may involuntarily confine them it must prove by clear and convincing evidence that the individual sought to be confined poses a

, In May 2004, Thomas Dolislager was appointed by the Governor to the Developmental Disabilities Services Board to serve until January \5,2010. He replaces Don Dunn. Also in May 2004. Luke Heffley was appointed by the Governor to the Developmental Disabilities Services Board to serve until January 15,2010. He replaces Ron Carmack. Messrs. Dolislager and Heney are substituted as defendants. See Fed. R. Civ. P. 25(d).
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\
substantial risk of harm to him or herself or others and requires a level of supervision and care that can only be provided by one of the state's HDCs.
B. This Court's Resolution of Defendants' Motion to Dismiss. On February 12,2004, the Court granted in part and denied in part Defendants' motion to dismiss Plaintiffs' original complaint. In doing so, the Court rejected most of Defendants' arguments. First, the Court concluded that Plaintiffs had alleged an injury-in-fact and thus Plaintiffs have standing. The Court also found the Rooker-Feldman doctrine did not apply because a favorable ruling on Plaintiffs' constitutional claims would neither reverse nor void prior state court decisions appointing guardians for Plaintiffs Porter and Norman. Next, the Court found that Plaintiffs had alleged "state action" because they claim that they were confined without a hearing in a state institution against their wishes. The Court also found that PlaintitIs' claims for procedural due process are ripe for review and that Plaintiffs have not failed to exhaust any relevant state remedies. Lastly, the Court concluded that Younger abstention was unwarranted because nothing in the record indicated that Plaintiffs' guardianship cases are ongoing judicial proceedings under Younger. Plaintiffs were thus allowed to proceed with their procedural due process claims. Defendants Families and Friends of Care Facility Residents ("FF/CFR") and Ellen Sue Gibson's motion to intervene was granted. Defendants FF/CFR and Ellen Sue Gibson's motion to redact names was denied2
2 Plaintiffs' original complaint also alleged a violation of the Equal Protection Clause on the ground that the procedures to which they claim they are entitled but have been denied are made available to individuals with mental illness in Arkansas. The Court granted, without prejudice, the motion to dismiss this claim on the ground that Plaintiffs failed to allege that they are similarly situated to mentally ill individuals who are committed to state institutions. Thereafter, Plaintiffs moved to amend the complaint, among other things, to revise their Equal Protection claim in accordance with the Court's opinion. That motion was granted on March 12, 2004, and Plaintiffs' second amended complaint was filed on March 16, 2004.
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\
III. STATEMENT OF FACTS
The Arkansas Mental Retardation Act provides for the creation and maintenance of HDCs. Ark. Code Ann. § 20-48-403(a). There are six HDCs in Arkansas that provide medical, residential, habilitation, and educational services. The HDCs provide confined institutional living for individuals with mental retardation that ranges in severity from individuals who manage their own daily needs to individuals who are unable to speak and require restraints to prevent them from injuring themselves. Ark. Code Ann. § 20-48-404(1).
The Arkansas Department of Human Services CADHS") is the state agency responsible for providing treatment, programming and other services to individuals with disabilities throughout Arkansas. Defendant Kurt Knickrehm is the Director of the ADHS and is appointed by and serves at the pleasure of the Governor. Ark. Code Atm. § 25-10-101 (b). As Director of ADHS, Defendant Knickrehm is required to direct and supervise the DDS, the Division of Medical Services, the Division of Mental Health Services and all other ADHS divisions. Ark. Code Ann. § 25-10-1 02(b)(1 )(A).
Defendant James C. Green is the Director of DDS, the state agency responsible for providing services to qualified Arkansas citizens with developmental disabilities. Defendant Green is ultimately responsible for the provision of all services to Plaintiffs by authority delegated to him by the Board.
Defendant Board is authorized to issue regulations concerning the admission, discharge, care, custody, placement, training and discipline of individuals receiving developmental disability services in the HDCs. Ark. Code Ann. § 20-48-205(b). The HDCs are under control of the Board. See Ark. Code Ann. § 25-10-102(b)(2)(A).
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A. Statutory Procedures. Ark. Code Ann. §20-48-401 et seq. creates the statutory framework for admission and discharge to and from the HDCs. To be admitted to an HDC, a parent or guardian of a mentally defective person submits a petition to the Board requesting admission for mentally defective person. Ark. Code Ann. § 20-48-405. The petition states whether the parent or guardian seeks a voluntary admission or a commitment. Ark. Code Ann. § 20-48-405. After receiving the petition, the Board conducts an investigation to determine the mental status and condition of the individual using standard psychological and physical examination tests. See Id § 20-48-404(2). After the investigation, the Board may decide that the individual is incapable of managing his or her affairs and requires the special care provided by an HDC and may permit voluntary admission of the individual without any court procedure. Id. § 20-48-406(b). The individual voluntarily admitted in this manner can only be withdrawn from the HDC by an application made by the parent or guardian of the individual who has legal custody. !d. § 20-48-412. On the other hand, the Board may determine that the individual should be admitted to the HDC by legal commitment. Id. § 20-48-406(c). In that case, the Board files a petition for commitment with the probate court of the county in which the individual resides. A hearing is held to determine whether the individual should be committed. Once admitted through these proceedings, an individual may not be discharged until the Board and HDC superintendent find his or her condition warrants the discharge. !d. § 20-48-412. B. Administrative Procedures. Defendants have supplemented statutory procedures regarding admission and discharge to the HDCs through the adoption of certain policies and procedures. Manual numbers 1020.

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1037, 1057 and 1086 create the administrative framework for admission and discharge to the HDCs. Number 1020 sets out the procedure by which an individual requests services from DDS. Number 1037 addresses "HDC therapeuticltrialleaves"; number 1053 "establishes the discharge process and establishes guidelines for discharge of individuals from the HDCs operated by DDS"; and number 1086 "establishes the referral and placement procedures for services from the HDCs."
C. Plaintiff Harve Porter. Harve Porter is a 39 year-old individual with moderate mental retardation and developmental disabilities who is currently involuntarily confined at the ALHDC. He has been involuntarily confined in various HDCs and has never been granted a judicial hearing to determine whether he should be forced to live his life in an institutional setting in the custody of the State of Arkansas. On numerous occasions, Harve Porter has stated to HDC and DRC staff that he wishes to leave the HDC, but he has not been permitted to do so. (Plaintiffs' Exhibit 6, Hancock depo. p.15.4, Plaintiffs' Exhibit 7, At1idavit of Griffin J. Stockley, Plaintiffs' Exhibit 9, Sworn Statement of Carol Ann Moore. p.19.12 and Plaintiffs' Exhibit 3, Affidavit of Susan Pierce).
The history ofMr. Porter's involuntary confinement is rather long. On April 3, 1987, Booneville Human Development Center C'BHDC") first took custody of Mr. Porter on a "respite" admission but changed his status to a "regular" admission later that month.
On June 4. 1987, BHDC released Mr. Porter to his family and he was formally discharged on June 23,1987. On December 2,1994. Defendant-Intervenor Ellen Sue Gibson, Mr. Porter's mother, tiled a Petition for Appointment of Guardian of the Person and Estate of Harve Porter. (In the Malter ofHarve Edward Porter. an Incapacitated Person, Polk County
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Probate #G 94-27). An order appointing Ms. Gibson guardian ofthe person and estate ofMr. Porter was issued on February 22, 1995. (In the Matter ofHarve Edward Porter, an Incapacitated Person, Polk County Probate #G 94-27).
The SEAHDC took custody ofMr. Porter on March 30, 1998, on a "respite" admission. ALHDC then took custody of Mr. Porter for diagnosis and evaluation on May 6, 1998. SEAHDC regained custody ofMr. Porter on May 13, 1998, for yet another "'respite" admission. His status then changed on May 28, 1998, to a "regular" admission. Mr. Porter was allegedly the victim of abuse at SEAHDC on or about September 8, 2003, (Plaintiffs' Exhibit 5, Porter depo. p.18.12) and was discharged on October 22,2003, from SEAHDC and transferred to ALHDC where he remains confined. (Plaintiffs' Exhibit 4, Gibson depo. p.13.6).
D. Plaintiff Robert Norman. Robert Norman is a 44 year-old individual with mild mental retardation who also has a mental illness. On August 2, 1999, Mr. Norman, who had been charged with arson, was committed to the "Arkansas State Hospital or other suitable facility" by the Honorable John B. Plegge to undergo a mental health evaluation. (State ofArkansas v. Robert Norman, Pul. Cir. #98-4532). SEAHDC took custody ofMr. Norman on a "respite" admission on or about August 3, 1999. His status at SEAHDC was changed in September 1999, to a "regular" admission. Judge Plegge entered an order on January 7. 2000, acquitting Mr. Norman of arson by reason of mental disease or defect and committed him to SEAHDC. On February 23, 2000, the Honorable Mary Ann McGowan dismissed an Act 911 action against Mr. Norman pending in probate court, finding that because he had been found unable to participate in his defense against the arson charge a "final order could not have been entered in his criminal case until such time as
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Respondent was found fit to proceed." (In the Matter ofRobert Norman. Pui. Probate # PCV 2000-281).
In Spring 2000, Carol Ann Moore, a former Social Worker at SEAHDC, asked Charlie Harris, a friend of the Norman family, ifhe would be willing to become Robert Norman's guardian. (Plaintiffs' Exhibit 9, Sworn Statement of Carol Ann Moore, p.14.13). "We were encouraged... for all of the individuals to have some type of guardian, whether it be limited or full guardianship." (Plaintiffs' Exhibit 9, Sworn Statement of Carol Ann Moore, p.2?10). "We were encouraged to find guardians for everyone, to assist them in making decisions that they might be incapable of making, to keep them from leaving, in some instances." (Plaintiffs' Exhibit 9, Sworn Statement of Carol Ann Moore, p.16.18). "I understand that [the encouragement] came from beyond our facility, that that came from Little Rock." (Plaintiffs Exhibit 9, Sworn Statement of Carol Ann Moore, p.16.6). "I couldn't say that it was the Director of DDS, in particular. It may have been the attorneys for DDS. 1 could not give you somebody specific." (Plaintiffs Exhibit 9, Sworn Statement of Carol Ann Moore, p.16.11).
An attorney for the ADHS filed a guardianship petition in Bradley County Probate Court on April 25, 2000, seeking a permanent limited guardianship for Charlie Harris over Robert Norman "for the purpose of consenting to non-emergency medical treatment, placement and programming that are in Respondent's best interest." (In the Maller olRohert Norman, an alleged Incapacitated Person, Bradley Probate # GD-2000-1 0-1). "The guardianship hearing was held at our facility [SEAHDC)." (Plaintiffs' Exhibit 9, Sworn Statement of Carol Ann Moore. p.IS.I?). Ms. Moore attended the guardianship hearing as did Robert Norman, but Charlie Harris did not attend. (Plaintiffs' Exhibit 8. Sworn Statement of Charlie Harris. p.1 0.18).
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On August 14,2000, letters of permanent limited guardianship over Robert Norman were issued

to Charlie Harris.

Plaintiff Norman was involuntarily confined at SEAHDC from August 14, 2000, until

January 15,2004, when he was moved into a community placement at Friendship Community

Care, Inc., in Russellville Arkansas, where he presently resides. While he was confined at

SEAHDC, Robert Norman stated to employees of the SEAHDC and DRC staff he wished to

leave the facility. (Plaintiffs' Exhibit 9, Sworn Statement of Carol Ann Moore, p.24.9, Plaintiffs'

Exhibit 7, Affidavit of Griffin 1. Stockley and Plaintiffs' Exhibit 3, Affidavit of Susan Pierce).

However, he was not permitted to leave until approximately three months after this action was

filed.

IV. ARGUMENT

A. The State's Failure To Provide Adults With Mental Retardation Adequate Procedures for Admission To Or Release From Civil Commitment In State Human Development Centers Violates Plaintiffs' Rights To Due Process of Law.

1. Plaintiffs are Entitled to Due Process Protections Because Their Involuntary Confinement by the State of Arkansas Constitutes an Infringement of Their "Liberty Interests" Protected From Arbitrary Deprivation by the Due Process Clause of the Fourteenth Amendment.

The United States Supreme Court has identified confinement in an institution as a

deprivation ofliberty protected by the Due Process Clause of the Fourteenth Amendment. "It is

undisputed that civil commitment for any purpose constitutes a significant deprivation of liberty

that requires due process protection." Addington v. Texas. 441 U.S. 418, 425 (1979)(emphasis

added)("c1ear and convincing" standard of proof is constitutionally required in civil commitment

proceeding.); see also Vitekv. Jones. 445 U.S. 480. 491-92 (1980); Collins v. Bellinghausen, 253 F.3d 591, 596 (8th Cir. 1998)(where individual was summarily removed from nursing home and

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subjected to involuntary commitment procedures, "it was clearly established that liberty from bodily restraint is protected by the Due Process Clause of the Fourteenth Amendment. This liberty interest is implicated in involuntary commitment proceedings.").
This same liberty interest was implicated when Plaintiffs Harve Porter and Robert Norman were involuntarily confined without being afforded procedural due process. Mr. Porter was involuntarily admitted to SEAHDC on March 30, 1998. In Spring 2000, after Judge McGowan dismissed the action pending in probate court, Mr. Norman was involuntarily confined to the SEAHDC by mutual agreement ofSEAHDC staff and Mr. Norman's guardian, Charlie Harris. (Plaintiffs' Exhibit 8, Sworn Statement of Charlie Harris, p.7.21).
"[I]n the majority of cases, the admissions application is made by the guardian." (Plaintiffs' Exhibit I, Craft depo. p.19.1 0). The admission team determines if admission to an HDC is appropriate for that individual. (Plaintiffs' Exhibit I, Craft depo. p.16.9). The team consists of psychologists, social workers, residential services, medical services, and other professionals in those areas. (Plaintiffs' Exhibit 6, Hancock depo. p.14.l2). All members of the team are employees of the HDCs. (Plaintiffs' Exhibit 1, Craft depo. p.IS.IS). Although the HDC superintendent considers the team's recommendation (Plaintiffs' Exhibit 6, Hancock depo. p. 14.9), [t]he superintendent makes the final decision whether to admit or not." (Plaintiffs' Exhibit 6. Hancock depo. p. 14.9 and Plaintiffs' Exhibit 2, Green depo. p.24.18).
Once admitted to an HDC, residents are not discharged unless a guardian or family member requests discharge. In essence, then, the residents' liberty may be (and often is) permanently deprived. Even when, as here, residents are adamant about leaving the HDC the decision as to whether they get to leave depends on "what the treatment team thought was best and ... ultimately, what the guardian, how the guardian participated in the team process."
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(Plaintiffs' Exhibit 2, Green depo. p.3S.6). "Certainly anyone can request to be discharged from an HDC." (Plaintiffs' Exhibit 2, Green depo. p.3S.12). However, "[t]hey are not always discharged." (Plaintiffs' Exhibit 2, Green depo. p.3S.l4). If the individual says that he or she no longer wants to be in an HDC, it is up to their guardian to decide whether to accede to the resident's wishes. (Plaintiffs' Exhibit 6, Hancock depo. p.14.l7). In this case, as Boyd Hancock, former superintendent of SEAHDC put it, "It was normal for Harve Porter to tell me he wanted to leave the HDC." (Plaintiffs' Exhibit 6, Hancock depo. p.IS.S). However, "[t]he guardian is the only one who can provide consent or withhold consent." (Plaintiffs' Exhibit 2, Green depo. p. 37.23).
Finally, underscoring the often permanent and involuntary nature of confinement at the HDCs, if an individual leaves the HDC without permission, law enforcement "shall, upon the written request of the superintendent, return to the human development center or hold in custody an individual who has escaped or who has been temporarily released from the center under a permit to visit." Ark. Code Ann. § 20-48-4 IO. "If they are gone for a significant length of time, you contact the Sheriff's Office so that they can help you look." (PlaintitIs' Exhibit 2, Green depo. p.32.IS). Harve Porter, "would run off quite a bit." (PlaintiiIs' Exhibit 6, Hancock depo. p.30.16-20). When he disappeared, the policy was that, "[w]hen they're gone, we always look, you know, get an alert for them. Ifthey're gone a certain time, there are procedures that we follow. We notify the authorities." (Plaintiffs' Exhibit 6, Hancock depo. p.3I.3-S and 31.7).
"That happened with Harve Porter. If he was gone over a certain amount of time, we would have to notify the local authorities and they would look, aid in the search. The authorities had to pick him up before. I don't know how many times. It was often." (Plaintiffs' Exhibit 6, Hancock depo. p.31.12, 31.1S, and 31.20). After the disappearances, "[w]e put him on closer
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watch, and told people to watch him closer. That's all you can do." (Plaintiffs' Exhibit 6, Hancock depo. p.31.23). Each time that Mr. Porter ran away from the confinement, "[h]e was always going home." (Plaintiffs' Exhibit 6, Hancock depo. p.32.2). During the individual's confinement, the "HOC assumes responsibility for. .. making sure that they are in a safe environment and that they are provided care." (Plaintiffs' Exhibit 2, Green depo. p.43.9). "The HOC provides food, shelter, individualized training, job training, all that based on their abilities or their level of functioning, speech therapy, physical therapy, social work, case management, behavioral management, psychiatric care, if needed, psychological testing and evaluation, recreation, special education, if they were in the appropriate age group, nursing, 24-hour nursing care, 24-hour waking staff, transportation, dental, eye, ali medical type care that was necessary." (Plaintiffs' Exhibit 9, Sworn Statement of Carol Ann Moore, p.29.6). "They go off the grounds for haircuts and recreation." (Plaintiffs' Exhibit 9, Sworn Statement of Carol Ann Moore, p.29.22). "Basically, I guess everything else was on campus." (Plaintiffs' Exhibit 9, Sworn Statement of Carol Ann Moore, p.30.J).
In enacting the Americans with Disabilities Act, Congress found that, "historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem." 42 U.S.c. § 12101(a)(5). Furthermore, "[cJonfinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural emichment." Olmstead. 527 U.S. at 601. Instead of promoting a healthy ,md educational atmosphere, in many instances, the continement promotes degeneration in the individual and lack of growth that is supposed to be fostered in these institutions. Indeed, defendants
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themselves acknowledge that "[m]any supposed 'short term' stays in... an Intermediate Care Facility for Mental Retardation become extended stays that last a lifetime." (Plaintiffs' Exhibit 11, The Olmstead Plan in Arkansas, p.21). Defendants' concession that many short-term stays become extended stays that last a lifetime demonstrates the importance of having pre-deprivation procedures that comport with due process.
In sum, Plaintiffs' involuntary commitment constitutes the deprivation of a "liberty" interest and thus triggers the procedural protections of the Due Process Clause of the Fourteenth Amendment. We now turn to the question of what process is due.
2. Plaintiffs Are Entitled to the Full Panoply of Procedural Due Process Protections Under the Mathews v. Eldridge Balancing Test. Once it is determined that an individual possesses a "liberty" interest that has been subjected to deprivation (as shown immediately above), one further question remains: How much process is due? In answering that question, courts are required to apply the balancing test lirst enunciated in Mathews v. Eldridge, 424 U.S. 319 (1976). That test has perhaps been best described in Parham v. J. R., 442 U.S. 584 (1979): Assuming the existence of a protectible property or liberty interest, the Court has required a balancing of a number of factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. fd. at 660 (quoting Mathews, 424 U.S. at 335 and Smith v. Organization a/Foster Families, 431 U.S. 816, 848-849 (1977». Thus, the interests of Plaintiffs Porter and Norman must be weighed against the interests of the state.
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a. Plaintiffs' freedom -- the private interest affected by Defendants' action -- is of vital importance. There is no greater private interest than freedom. See Hamdi v. Rumsfield, 124 S.Ct. 2633 (2004). Plaintiffs Porter and Norman's fundamental liberty interest is curtailed by Arkansas' statutes and policies. While the mass of Americans live freely with the right to come and go as they choose, "individuals with disabilities continually encounter various forms of discrimination, including ... segregation." 42 U.S.c. § 12101(a)(5). Plaintiffs Porter and Norman are segregated from the rest of society by their involuntarily confinement in HOCs and the limited possibility of regaining their freedom. As the Supreme Court has noted, "[fjreedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary government action. Hamdi, 124 S.Ct. at 2646. "We have always been careful not to 'minimize' the importance and fundamental nature' of the individual's right to liberty." Id. at 2646 (quoting Foucha v. Louisiana, 504 U.S. 71, 80 (1992». Rights recognized as "fundamental" by the Court, such as liberty, impose upon the judiciary a special responsibility to scrutinize strictly any legislation or state policy that circumscribes such rights and to determine whether any limitations placed on them are justified by a compelling state interest. Washington v. Glucksberg, 521 U.S. 702. 767 (1997). The necessary justification for disallowing due process procedures for admitting individuals in HOCs is lacking. Put another way. the state's interest in placing certain individuals in HOCs, however compelling that interest may be. does not outweigh the individual's interest in liberty. Indeed, in Youngberg v. Romeo, the Supreme Court considered the liberty interests of adults with mental retardation contined by the state in an institution. 457 U.S. at 316. To be sure, the plaintiff there did not challenge the procedure;' that led to his continement. Nevertheless, Youngberg is highly instructive here. because the Court characterized the
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plaintiff s interest as "a right to freedom from bodily restraint" Id. at 316, and noted that "[i]n other contexts, the existence of such an interest is clear in the prior decisions of this Court. Indeed, '[l]iberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental action. '" Id. (quoting Greenholtz v. Nebraska Penal Inmates, 442 U.S. I, 18 (1979)). "This interest survives criminal conviction and incarceration. Similarly, it must also survive involuntary commitment." Id. at 316.
In a case directly on point, Clark v Cohen, 794 F.2d 79 (3fd Cir. 1986), the court had occasion to consider the procedural due process rights of people with mental retardation who were involuntarily committed to institutions. The Third Circuit upheld a district court ruling that a woman with mental retardation who had been confined for over 28 years without a hearing "had been deprived of her liberty to be free from commitment without due process." Id at 86. The court found that "due process required periodic reviews of her continuing need for institutionalization." Id at 86. Similarly, the process that relegates individuals such as Messrs. Porter and Norman to HDCs violates their procedural due process rights. Once confined within the HDCs, individuals can only be discharged with the permission of their guardian.
In sum, there can be no doubt that the Plaintiffs' freedom, which is the liberty interest at stake in this case, is of paramount importance. It is indeed the most elemental of all freedoms protected by the Constitution. Hamdi. 124 S.C!. at 2646.
b. Arkansas' civil commitment system poses an enormously high risk of an erroneous deprivation of the Plaintiffs' interest in freedom from bodily restraint. Arkansas law and policies regarding HDC admission and discharge present an enormously high risk of erroneous deprivation of the fundamental nght to freedom from bodily
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restraint. That is so because, instead of relying on the traditional judicial due process protections that are the hallmark of the Due Process Clause, Arkansas' current system perpetuates the fallacy of "voluntary" confinement and relies upon the discretion of individuals - guardians and family members whose interests often conflict with the interests and the stated desires of the institutionalized individuals whose freedom hinges upon their decisions.
(i) The so-called "voluntary" confinement of individuals with mental retardation. Defendants' defense of its standardless system of civil commitment for individuals with mental retardation is built around a fiction: that Plaintiffs and others like them are placed and remain in HDCs "voluntarily" and thus the State owes them no procedural protections. Thus, before addressing whether Arkansas' statutes or policies either individually or together provide sufficient procedural protections for individuals being admitted to or discharged from the HDCs, we must first examine case law on the "voluntariness" question. Those decisions shed light on whether what occurred here to Harve Porter and Robert Norman can sensibly be considered "voluntary" commitment. Those rulings have considered identical circumstances and concluded that "voluntary confinement" is a legal fiction when applied to adults. This Court should do so as well. In Doe hy Doe v. Austin, 848 F.2d 1386 (6th Cir. 1988), the defendants maintained that the adult plaintiffs had not been involuntarily committed to an institution because their parents had "voluntarily" committed them. The Sixth Circuit rejected that argument. The court acknowledged that Parham v. JR.. 442 U.S. 584 (1979) had held that parents could commit their minor children and thereby waive any due process protections, but nonetheless ruled that Parham's reasoning simply did not apply to adults. "The Court in Parham was concerned with the commitment of minor children, and its conclusions flow more or less naturally from the
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unique and traditional relationship shared between parent and child." Id. at 1393 (quoting Parham, 442 U.S. at 602-03). "Moreover," the Court elaborated, "the interest of the parents in avoiding 'significant intrusion into the parent-child relationship' as noted in Parham is simply not as great in the case of an adult." Id. (quoting Parham, 442 U.S. at 610).
With this distinction in mind, the Sixth Circuit refused to tolerate a system in which defendants could hide behind the pretense that adults with mental retardation are admitted to and remain in institutions on their own volition:
[TJhe notion that the continuing confinement of the class members is voluntary notwithstanding the possible involuntariness of their initial confinement is, at best, an illusion. Indeed, the practice of relying upon some affirmative act on the part of profoundly and severely retarded persons to signal their will to escape confinement, coupled with the presence of a parent or guardian who may have played a pivotal role in institutionalizing the admittee in the first instance, creates a quite palpable danger that the adult child will be 'lost in the shuffle' (citation omitted). We decline to adopt a measure of voluntariness for the commitment of adults that favors form over substance. Austin, 848 F.2d at 1392.
Austin then went on to set minimum due process procedures for adults with mental retardation which included notice, opportunity to present witnesses and to cross-examine the state's witnesses, and the right to an independent decision maker with the authority to implement his or her decision. Austin, 848 F.2d at 1393 n.6 (relying on Vitek v. Jones, 445 U.S. 480 (1980».
After Austin, state defendants have continued to argue that Parham should apply to adults, but this contention continues to be rejected. Relying extensively on Austin, the court in Heichelhech v. Evans, 798 F. Supp. 708. 712-14 (M.D. Ga. 1992) ruled that an adult could challenge his commitment even where his guardian ad litem disagreed. thus rejecting defendants'
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argument, identical to that of defendants here, that only the guardian had the power to challenge his ward's commitment to a state hospital for persons with mental illness. Id. at 712-14.
Similarly, in Thomas S. v. Flaherty. 699 F.Supp.ll78 (W.D.N.C. 1988), the court considered the due process rights of more than 200 plaintiffs whose confinement in psychiatric institutions the state deemed "voluntary." The commitments of these individuals, the court held, "were not truly voluntary. In holding that the term 'voluntary" as applied to these individuals was meaningless, the court was simply refusing to honor form over substance. See also Bonnie S. v. Altman, 683 F.Supp.100, 101 (D.N.J. 1988)("no more vital right exists in our society than the ability to challenge commitments through adequate due process. To require the individuals so confined to obtain the consent of their keepers in order to launch those challenges would render the right meaningless.").
Two state appellate courts have also mled that wards that have been admitted to mental hospitals by their guardians have a right to due process hearings after making a request for their release. See Von Luce v. Rankin, 267 Ark. 34, 588 S. W.2d 445 (Ark. 1979), Lippman v. Johnson, 68 Ohio App.2d 233, 429 N.E. 2d 167 (1980). Although neither court explicitly addressed the issue of "voluntariness," by according due process rights to wards, the necessary predicate for both courts' rulings was the view that a guardian's determination that her ward should stay confined does not make the ward's commitment "voluntary". Indeed, quite the opposite: These courts' mlings poignantly illustrate that the ward is held by the State against his or her will.
The confinement of the Plaintiffs in this case has undoubtedly been involtmtary. Both Harve Porter and Robert Norman have expressed on numerous occasions that they wanted to leave the HDCs, either to return home or find other placement. (Plaintiffs' Exhibit 6, Hancock
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depo. p.I5.4, Plaintiffs' Exhibit 13, Affidavit of Griffin J. Stockley, Plaintiffs' Exhibit 9, Sworn Statement of Carol Ann Moore, p.21.1 and Plaintiffs' Exhibit 3, Affidavit of Susan Pierce). Both Plaintiffs have been appointed guardians, but were not afforded ajudicial hearing to determine whether they should be forced to live in an HDC. (Plaintiffs' Exhibit 6, Hancock depo. p.14.6 & 14.7, and Plaintiffs' Exhibit 8, Sworn Statement of Charlie Harris, depo. p.10.18).
To claim that Harve Porter and Robert Norman, as adults with mental retardation, are voluntary patients is nothing more than a device to avoid the strictures of due process. Maintaining the fiction that individuals with mental retardation are, or could again be, "voluntary" admittees to an institution makes transparent the heightened risk, in a system lacking due process protections, that an erroneous deprivation of liberty will occur.
Put another way, the notion of voluntariness in this context would, if accepted, ensure that no meaningful steps will be taken to sharpen the factual and legal issues that are part of every admission to Arkansas' HDCs. Instead, its acceptance would make certain that only one viewpoint, that of the guardian or administrator of the institution, is considered when an adult with mental retardation is admitted to an HDC, often for the rest of his or her life.
(ii) The current system is beset by conflicting interests. Though it may be comforting to assume that family members and legal guardians have only the best interests of their wards at heart, we know that is not always the case. The financial burden of caring for individuals with mental retardation in the home of their family member or guardian can often be overwhelming. Placing an individual in a state HDC relieves the family member or guardian of that financial burden since Medicaid pays for the majority of services provided at the HDCs. (Plaintiffs' Exhibit 2. Green depo. p.31.22).
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Moreover, the interests of people who are required to spend their lives in an institution often conflict with the interests ofthose responsible for admitting or discharging them. In many instances, family members or legal guardians are persuaded by the state that care in an HDC is the only appropriate placement for their ward thus ensuring the continued existence of the institution. When Ellen Sue Gibson moved Harve Porter into the HDC, neither she nor the interdisciplinary team considered a less restrictive environment for Mr. Porter. It was never discussed. (Plaintiffs' Exhibit 4, Gibson depo. pgs 8-10). Allowing HDC employees, no matter how well-intended or well-qualified, to make the administrative decision, along with the guardian, to confine individuals in institutions for the rest of their lives exponentially increases the risk of erroneous decisions.
It can be assumed that a significant percentage of the people working in the six communities in Arkansas where the HDCs are located make their living at the institutions. Failing to acknowledge that employees benefit from thriving institutions in these communities would be to ignore reality. Given the relative lack of standards for confining individuals with mental retardation in HDCs, it is certainly inappropriate for HDC employees to be called upon to apply the standards, as is the case under Arkansas law and DDS policies.
For all these reasons, the risk of the erroneous deprivation of the interest in freedom from bodily restraint is very high. The risk results because, by trumpeting the inherently flawed notion of "voluntary" confinement of mentally incompetent adults, the state is able to circumvent all procedures that would determine whether such adults should be deprived of their freedom. Moreover, the injudicious reliance upon decision makers - guardians and HDC employees whose circumstances invite conflict with the best interests of the ward, places adults with mental
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retardation at severe risk oflosing their liberty even when they are capable of functioning outside an institutional setting.
c. Possible deprivation of Plaintiffs' freedom demands a preconfinement judicial hearing. The value of Plaintiffs' proposed substitute procedures, pre-confinement judicial hearings, far outweighs the administrative burden judicial hearings might impose in light of the importance of the liberty interest at stake for Mr. Porter and Mr. Norman. "[D]ue process is flexible and calls for such procedural protections as the particular situation demands," Morrissey v. Brewer, 408 U.S. 471,481 (1972). Within this flexible regime, at bottom, however, "the fundamental requirement of due process is the opportunity to be heard, "at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552 (1965). Unfortunately for Plaintiffs, Arkansas' HDC admission and discharge statutes and policies are at odds with fundamental notions of due process. None of Arkansas' statutes or policies contains a mandatory hearing process that applies to admission or discharge. No Arkansas statute or policy even provides an individual the right to disagree with the initial placement or discharge in an HDC. In theory, the Arkansas statutes contemplate alternative procedures for admission to an HDC: "voluntary" admissions or legal commitment. "A parent or guardian" files a verified petition with the Board, which states, among other things, "whether the petitioner desires that the individual be admitted voluntarily or by commitment." Ark. Code Ann. § 20-48-405(a)(7). Thereafter, it is within the unfettered and unreviewable discretion of the Board as to how an individual enters an HDC: "The board may permit the voluntary admission of the individual to a center for such period of time as the board may deem necessary for the proper care, training, and
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education of the individual. The admission shall be by action of the board without the necessity of any court procedure." Ark. Code Ann. § 20-48-406(b).
The Board "may determine that the individual should be admitted to a center by legal commitment only. In that event, the board shall file the petition for admission with the probate court of the county in which the individual resides." Ark. Code Ann. § 20-48-406(c)(l). Statutory procedures to be followed in "court commitments" contain only the following requirements: The Court in its discretion "may appoint one (1) or two (2) reputable physicians to examine the individual and report to the court the mental status of the individual. .. or it may adopt the report ofthe physician appointed by the board... " Ark. Code Ann. § 20-48-406(c )(3). At "the hearing on the petition, the court shall determine whether or not the individual should be committed to a center for care, treatment, and training and shall enter an appropriate order in accordance with its determination." Ark. Code Ann. § 20-48-406(c)(4).
Because the statutory procedure set forth in Ark. Code Ann. § 20-48-406 is not mandatory, it in no way serves to reduce the risk of an erroneous discharge or admission to an HDC. Even if it were mandatory, the statute simply says that the probate judge shall hold a hearing. Ark. Code Ann. § 20-48-406. Absolutely none of the other standard due process hearing requirements, adequate and timely notice and an opportunity to be heard, the right to present evidence, the right to challenge and cross-examine adverse evidence and witnesses, the appointment of counsel for those who are indigent, appropriate standards of commitment and burden of proot~ is even mentioned in the statute.
Statutory requirements relating to discharge irom an HDC are even more at odds with fundamental notions of due process - indeed, they are nearly non-existent. An individual admitted to an HDC as a "voluntary" admission, "may be withdrawn from the HDC at any time

Case 4:03-cv-00812-SWW Document 66 Filed 07/27/04 Page 24 of 34
upon the application of the parent or guardian who has legal custody of the individual" upon "thirty (30) days notice in writing ...." Ark. Code. Ann. § 20-48-412(a). Individuals committed by a probate court may only be discharged if in the "judgment of the board and the superintendent, his or her condition justifies the discharge." Ark. Code. Ann. § 20-48-406(b).
Plainly, once admitted, adults with mental retardation, such as Messrs. Porter and Norman, are essentially incarcerated for life, unless released at the discretion of the very persons who are holding them, without any access to judicial process and the fundamental due process guarantees that judicial process ordinarily entails.
The question whether due process requires that the finder of fact in a proceeding to commit an individual with mental retardation to an institution be a judicial officer is a matter of some debate. In Doe by Doe v. Austin. 668 F.Supp. 597 (W.D.Ky. 1986) the district court found that such commitment results in an extreme curtailment of personal liberty.
Any decision by the state which results in such a profound deprivation of personal liberty must be accompanied by substantial due process safeguards, particularly where the person who is to be committed may be lacking in the ability to fully protect his or her procedural rights. We therefore hold that mentally retarded persons over eighteen years of age are entitled to a judicial hearing and determination of the propriety of commitment. .. ld. at 600.
The Sixth Circuit did not agree with the lower court's decision in this regard. Although acknowledging that "as a matter of policy, precommitment review by a judicial officer would ensure the most vigorous protection of the mentally retarded, and thus, might be preferable, it has been noted in a variety of situations that due process does not require that the neutral trier of fact be legally trained or a judicial or administrative officer." Austin. 848 F.2d at 1393. However, the cases cited by the Sixth Circuit do not support that court's conclusion. ld. The only case that
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involved personal liberty interests of adults cited in Austin, Morrisey v. Brewer, 408 U.S. 471 (1972) involved the question of what process, if any, an individual was due at a parole revocation hearing. Morrisey, however, carefully, and properly, distinguished the liberty interest of an individual already convicted of a crime with the situation of an individual facing prosecution.
We begin with the proposition that the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations. Parole arises after the end of the criminal prosecution, including imposition of sentence. Supervision is not directly by the court but by an administrative agency, which is sometimes an arm of the court and sometimes of the executive. Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions. Id. at 480. Thus Morrisey provides no authority for depriving an adult with mental retardation of a judicial hearing. Plaintiffs' interest in liberty in this case, unlike the parole revocation context in Morrissey, cannot be said to be in any way "conditional" because the Plaintiffs here have never been convicted of a crime and instead possess in Morrisey's words, "the absolute liberty to which every citizen is entitled." Other cases cited in Austin, such as Goldberg v Kelly, 397 U.S. 254 (I 970)(requiring trial-like administrative hearing prior to welfare benefits termination), and Parham, 442 U.S. at 607, either do not involve liberty interests or, as discussed earlier, involve liberty interests of children. On the other hand, the Supreme Court has repeatedly recognized that when a fundamental, unconditional liberty interest is at stake, a judicial hearing is required before that interest may be circumscribed. The fundamental nature of the interest at stake in this case-freedom from bodily restraint and the opportunity to live on one's own in the community -necessitates that pre-
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deprivation judicial hearings be held to avoid an erroneous institutionalization. Indeed, Defendants have admitted that short-term stays in intermediate care facilities for the mentally retarded often become what amounts to a life sentence. (Plaintiffs' Exhibit II, The Olmstead Plan in Arkansas, p.21).
In sum, the current state's admission and discharge procedures for HDCs are fundamentally unfair for they are infected with a myriad of problems. Adults with mental retardation subject to involuntary confinement have little, if any, prospect of preventing erroneous deprivations ofliberty. For these reasons, the value of pre-confinement judicial hearings for admission and discharge to the HDCs is central, particularly in light of the massive curtailment of liberty that institutionalization entails.
d. Protection of Plaintiffs' "Liberty Interest" far outweigbs the fiscal and administrative burden imposed by pre-confinement judicial bearings. The most visible burden on the state would be the cost of judicial hearings. Concededly, courts have found that "the constitutionalizing of government procedures suggests that the ultimate additional cost in terms of money and administrative burden would not be insubstantial." Mathews, 424 U.S. at 347. However, "[fJinancial cost alone is not a controlling weight in determining whether due process requires a particular procedural safeguard prior to some administrative decision." [d. at 348. Certainly, the welfare of the state is immeasurably enhanced when the needs of its citizens with disabilities are correctly identified. The cost to the government of implementing due process procedures is not de minimus, but it pales beside the human cost of lives spent in institutions that could beneficially be spent in the community. Presently, over 12,000 individuals with developmental disabilities are well served throughout
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Arkansas - outside the institutional setting - by responsible community providers who are licensed by the state. (Plaintiffs' Exhibit 3, Affidavit of Susan Pierce).
In weighing the societal costs, most states have decided to provide procedural protections for individuals with mental retardation who are subject to involuntary civil commitment. For the Court's convenience, Plaintiffs attach a chart that tracks the involuntary commitment laws pertaining to people with mental retardation (Plaintiffs' Exhibit 10, Chart tracking involuntary commitment laws for individuals with mental retardation). Of the 50 jurisdictions reviewed, 33 provide judicial hearing for individuals with developmental disabilities prior to admission to a facility/program. The fact that Arkansas is an extreme outlier is important not only because it demonstrates the state's failure to live up to the basic norms, but because it illustrates that providing judicial hearings for adults with mental retardation whose liberty is at stake is eminently practicable. Such hearings are costly, but not overwhelmingly so, as the practice in most other states shows.
B. The State's Failure To Provide Procedures For Adults With Mental Retardation Similar To Procedures Provided For Adults With Mental Illness Violates Plaintiffs' Rights to Equal Protection Of The Laws.
Legislation frequently involves making c1assitications that either advantage or disadvantage one group of persons. but not another. The Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution prohibits states from denying any person within its jurisdiction the equal protection of the laws. Plaintiffs are being denied these protections because admission and discharge procedures from the state' s six HOCs set forth in Ark. Code Ann. §20-48-40 1 et seq. and Manual numbers 1020. 1037. 1053, and 1086 fail to provide the same or similar procedures to PlaintitTs as are provided to individuals with mental illness who
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are committed to a facility pursuant to Ark. Code Ann. §20-47-201 et seq. (Plaintiffs' Second Amended Complaint, para. 52, March 16, 2004).
Generally, where fundamental rights and liberties are at stake, classifications that might invade or restrain them must be closely scrutinized and carefully confined. Planned Parenthood o[Mid-Missouri & Eastern Kansas, Inc. v. Dempsey, 167 F.3d 458, 464 (8th Cir. 1999). The Supreme Court in Heller v Doe, 509 U.S. 312 (1993), avoided deciding this issue of strict
scrutiny, holding "the issue [was1not properly presented" on appeal. "Both parties have been
litigating this case for years on the theory of rational basis review which... does not require the State to place any evidence in the record, let alone the extensive evidentiary showing that would be required for these statutes to survive heightened judicial scrutiny." Heller at 318.
Plaintiffs, unlike the plaintiffs in Heller, have contended from the filing of their complaint that they "have a fundamental liberty interest in constitutionally adequate admission and discharge procedures in the state's HDCs. Insofar as these procedures, whether statutory or mandated by policy, impact a ti.mdamentalliberty interest of Plaintiffs, they are subject to the judicial standard of strict scrutiny." (Plaintiffs' Second Amended Complaint, para. 25, October 14,2003).
Plaintiffs are challenging Arkansas' statutes and policies, which infringe upon their fundamental right to be free from nndue physical restraints. Foucha v. Louisiana, 504 U.S. 71 (1992). This Court is therefore required to analyze the challenged statutes and policies under a strict scrutiny standard. Planned Parenthood ofMid-Missouri & Eastern Kansas, Inc., 167 FJd at 464.

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a. Plaintiffs Harve Porter and Robert Norman are similarly situated to individuals with mental illness who are involuntarily confined or who are at risk of involuntary confinement.
The first step in an equal protection analysis focuses on whether the Plaintiffs are similarly situated to another group for purposes of the challenged government action. Klinger v. Department o/Corrections 31 F.3d 727,731 (8th Cir. 1994) (citing More v. Farrier, 984 F.2d 269,271 (8th Cir. 1993». It is important to note the challenged government action in this case is the state's ability to deprive Plaintiffs of their fundamental right to be free from bodily restraint without providing them an opportunity to be heard "at a meaningful time and in a meaningful manner." Morrisey, 408 U.S. at 481. By failing to provide due process for individuals with mental retardation, the state has found that one group, individuals with mental illness, should get due process protections to ensure their liberty interest is not erroneously deprived and another group, individuals with mental retardation, is somehow not worthy of any due process protections before their liberty is deprived, often for the rest of their lives.
Defendants have alleged, and Plaintiffs are willing to concede, that there are differences in the way mental retardation and mental illness manifest themselves and are treated. See Heller v. Doe, 501 U.S. 312 (1993). However, Plaintiffs here do not contend, as did plaintiffs in Heller, that the disabilities of mental illness and mental retardation are similar in all ways. Rather, Plaintiffs Harve Porter and Robert Norman allege they are similarly situated for equal protection purposes because, like individuals with mental illness, they are individuals with a disability at risk of involuntary confinement.
The Eighth Circuit in Klinger. 31 F.3d 727 (8th Cir. 1994) found that women inmates
were not similarly situated to male inmates at Nebraska State Penitentiary (NSP) for the purpose of challenging prison programs and services. Klinger at 728. However, the court found "male

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and female inmates are similarly situated for purposes of the process by which the Department makes programming decisions." Jd. at 733 n 4. Thus, Plaintiffs, may not be similarly situated with individuals who are mentally ill so as to allow them to challenge their treatment in the HDCs; however, Plaintiffs are similarly situated to individuals with mental illness to challenge the unequal process by which the State deprives them of their freedom.
b. Defendants fail to offer a compelling reason to justify unequal treatment of people with mental illness and mental retardation prior to institutionalization.
In Part IV.A. above, Plaintiffs showed that the challenged statutes and policies burden their fundamental right to be free from bodily restraint without due process oflaw. In the equal protection context, that showing shifts the burden to the state to prove that the statutes and policies serve a compelling state interest and are narrowly tailored to achieve that interest. If there are less drastic means by which a compelling state interest may be served, then the less burdensome approach must be used. See, e.g, Lawrence v. Texas, 559 U.S. 558 (2003), Zablocki v. Redhail434 U.S. 374 (1978), Dunn v. Blumstein, 405 U.S. 330 (1972), Shapiro v. Thompson, 394 U.S. 618 (1969) (reversed in part on other grounds). "Only rarely are statutes sustained in the face of strict scrutiny. Bernalv. Fainter, 467 U.S. 216, 220 (1984).
Defendants have not provided Plaintiffs or this Court a compelling justification for the differing procedures for civil commitment of individuals with mental retardation and individuals with mental illness. Defendants' failure dictates that this Court find that the admission and discharge procedures for HDCs violate the Equal Protection Clause of the Fourteenth Amendment.
c. The challenged statutes and policies are not narrowlv tailored to achieve a compelling state interest.
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Even if the Court finds that Defendants, in responding to this brief, have positied a compelling state interest, the challenged statutes and policies would still violate the Equal Protection Clause because those statutes and policies are not narrowly tailored to meet any interest, no matter how speculative it may be at this juncture.
To determine whether the challenged statutes and policies are narrowly tailored to justify the differing standards for the institutionalization of individuals with mental illness and individuals with mental retardation, this Court must first analyze the current procedures for the

two similarly situated groups of individuals. Individuals with mental disabilities, those with mental illness and those with mental
retardation, are treated very differently by the State of Arkansas. Arkansas has enacted a comprehensive code for individuals with mental illness subjected to involuntary confinement in a "hospital or to a receiving facility or program." Ark. Code Ann. § 20-47-210. These procedures are set forth in Ark. Code Ann. § 20-47-211 et seq. and call for the full range of procedural due process, including a judicial hearing.
Though the statute authorizes immediate confinement if an individual is a danger to self or others, the individual must be served with a petition and a "statement of the following rights: (1) That he or she has the right to effective assistance of counsel, including the right to a courtappointed attorney; (2) That he or she and his or her attorney have a right to be present at all significant stages of the proceedings and at all hearings except that no attorney shall be entitled to be present upon examination of the person by the physician or any member of the treatment staff pursuant to an evaluation, whether initially or subsequently; (3) That he or she has the right to present evidence in his or her own behalf; (4) That he or she has the right to cross-examine witnesses who testify against him or her; (5) That he or she has a right to remain silent; and (6)

31

•
•

Case 4:03-cv-00812-SWW Document 66 Filed 07/27/04 Page 32 of 34
That he or she has a right to view and copy all petitions, reports, and documents contained in the court file." Ark. Code Ann. § 20-47-213 requires an examination of the person. Ark. Code Ann. § 20-47-213 sets out the hearing procedure for a 45-day maximum involuntary admission and requires that the person be proven by "clear and convincing" evidence to be "of danger to himself or others." Ark. Code Ann. § 20-47-215 permits additional periods of confinement pursuant to the procedures set forth above.
The state has failed to enact similar laws for individuals with mental retardation. See Ark. Code Ann. § 20-48-401 et seq. (Michie 2003 Supp!.) and Manual numbers 1020, 1037, 1053 ami 1086. In conducting an equal protection analysis, a comparison of the two statutory regimes ordinarily would be appropriate. However, the vast disparity between the protections afforded individuals with mental illness and those afforded individuals with mental retardation prior to institutionalization (as discussed earlier in this brief) renders a comparison unnecessary. Plaintiffs cannot fathom a scenario under which this Court could find that statutes and policies that are entirely void of constitutionally adequate Due Process procedures are narrowly tailored to meet any state interest.
Under the challenged statutes and policies, Defendants have the authority to confine the most innocent of our citizens in institutions for their entire lives with the mere stroke of a pen. It is a sad and ultimately futile argument that champions more procedural protections for heinous criminals and alleged terrorists than individuals whose only crime was to be born with fewer mental resources than "ordinary" persons. Such a scheme does not provide adults with mental retardation the equal protection of the laws.

V. CONCLUSION

32

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•

Case 4:03-cv-00812-SWW Document 66 Filed 07/27/04 Page 33 of 34

For the foregoing reasons, the Court should grant Plaintiffs' motion for summary judgment and declare unconstitutional the challenged provisions of the Arkansas Mental Retardation Act and policies of the Arkansas Division of Developmental Disabilities Services. The Court should also grant Harve Porter a judicial hearing in accordance with procedures and standards comporting with due process of law as mandated by the Court until such time as the Arkansas General Assembly enacts constitutional procedures pertaining to admission to and discharge from HOCs.

Respectfully submitted,
~f C. ! ~v~~1-.
Janet C. Baker S. Ct. # 93038
Dana K. McClain S. Ct. # 01028
Adam Butler S. Ct. # 03007
DISABILITY RIGHTS CENTER, INC. 1100 N. University Little Rock. AR 72207 (SOl) 296-1775 (SOl) 296-1779 (FAX)
Brian Wolfman S. Ct. # 85176
PUBLIC CITIZEN LITIGATION GROUP 1600 20th Street N.W. Washington. D.C. 2009-1001 (202) 588-7730
ATTORNEYS FOR PLAINTIFFS

•

Case 4:03-cv-00812-SWW Document 66 Filed 07/27/04 Page 34 of 34

CERTIFICATE OF SERVICE
I, Janet C. Baker, do hereby certify that a copy of the above and foregoing plaintiffs' Brief in Support of Motion for Summary Judgment on Fourteenth Amendment Due Process and Equal Protection Claims was served upon the following by placing a true and correct copy in the
U.S. Mail postage prepaid, on this -:2.1 i1< day of July 2004.
Breck Hopkins Arkansas Department of Human Services Office of Chief Counsel P.O. Box 1437, Slot S260 Little Rock, AR 72203-1437
Lori Freno, Ass!. Attorney General Office of the Attorney General 323 Center Street, Suite 200 Little Rock, AR 7220 I
William F. Sherman 504 Pyramid Place 221 West 2nd Street Little Rock, AR 72201
L-Vt- (- I 3u~
Janet C. Baker

34

 
 Case 4:03-cv-00812-SWW Document 54 Filed 03/16/04 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT

FILED

u.s.
tASTERN

t,?)IISS"ijRTI~(I~CTT

COURT ARKANSAS

MAR 16 2004

..,-'--'
, :

EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

~~:MES W. McCORMACK, CLERK
DEPCLERK

HARVE PORTER and ROBERT NORMAN,

)

By Their Next Friend, Susan Pierce

)

)

)

and

)

)

DISABILITY RIGHTS CENTER, INC.,

)

)

Plaintiffs,

)

)

vs.

)

)

KURT KNICKREHM, in his official capacity as

)

Director of the Arkansas Department of Human Services, )

DR. JAMES C. GREEN, in his official capacity as

)

Director of Developmental Disabilities Services,

)

)

and

)

)

KAY BARNES, RON CARMACK, DON A. DUNN, )

GROVER MILTON EVANS, WESLEY KLUCK,

)

RANDY LANN, AND SUZANN MCCOMMON, in )

their official capacities as members of the Board of

)

Developmental Disabilities Services

)

)

No. 4:03 CV00812 5f.JW

Defendants

)

)

and

)

)

Family and Friends of Care Facility Residents

)

and Ellen Sue Gibson

)

)

Defendant Intervenors.

)

SECOND AMENDED COMPLAINT

Come now Plaintiffs, Harve Porter and Robert Norman, by and through their next

friend, Susan Pierce, and Disability Rights Center, by and through their attorneys Janet C.

I

• Case 4:03-cv-00812-SWW Document 54 Filed 03/16/04 Page 2 of 17

Baker, Dana K. McClain, and Adam H. Butler, and for their Second Amended

Complaint, state:

I. PRELIMINARY STATEMENT

1.

This is an action brought on behalf of Harve Porter and Robert

Norman pursuant to 42 U.S.C. § 1983, and the Due Process and

Equal Protection Clauses of the 14th Amendment to the U.S.

Constitution.

2.

Plaintiff Harve Porter is an adult individual with developmental

disabilities who has been involuntarily confined at two human

development centers since May 28, 1998.

3.

Plaintiff Robert Norman is an adult individual with developmental

disabilities who was involuntarily confined at the Southeast

Arkansas Human Development Center (SEAHDC) from August

14,2000, until he was moved to Friendship Community Care Inc.,

Russellville, Arkansas, on or about January 15, 2004.

4.

Plaintiff Disability Rights Center (DRC) is the Protection and

Advocacy system for the State of Arkansas.

5.

Defendants are individuals (as set out in detail below) who are

authorized by state law to administer the services, programs and

policies of the six human development centers in Arkansas, created

and maintained "for the care, custody, treatment and training of

mentally defective individuals..." ACA § 20-48-403(a).

2

Case 4:03-cv-00812-SWW Document 54 Filed 03/16/04 Page 3 of 17
•

6.

As an adult resident of the human development centers (HDCs),

Plaintiff Porter is involuntarily confined in violation of the Due

Process and Equal Protection Clauses of the 14th Amendment to

the U. S. Constitution. At the time Plaintiffs filed their original

complaint, Plaintiff Robert Norman was an adult resident of an

HDC. From August 14,2000, until on or about January 15,2004,

he was involuntarily confined in violation ofthe Due Process and

Equal Protection Clauses of the 14th Amendment to the U. S.

Constitution. Plaintiff Norman continues to be at risk of

involuntary confinement in an HDC even though he is currently

living at Friendship Community Care Inc., Russellville, Arkansas.

7.

Plaintiffs seek to have declared unconstitutional Ark. Code Ann. §

20-48-401 et seq. (Michie 2003 Supp\.) and DDS Director's Office

Policy Manual policy numbers 1020, 1037, 1053 and 1086, insofar

as these statutes and policies of Defendants deny them a right to a

judicial hearing with due process procedures (as set out below). (A

true and correct copy of Ark. Code Ann. § 20-48-401 et seq.

(Michie 2003 Supp\.) and DDS Director's Office Policy Manual

policy numbers 1020, 1037, 1053 and 1086 are attached hereto and

adopted by reference as if set out word for word and identified as

Exhibits 1 and 2). Further, Plaintiff Porter seeks permanent

injunctive relief mandating that Defendants forthwith grant him a

judicial hearing in accordance with procedures and standards

3

Case 4:03-cv-00812-SWW Document 54 Filed 03/16/04 Page 4 of 17

comporting with due process of law as mandated by the Court until such time as the Arkansas General Assembly enacts constitutional standards and procedures pertaining to admission and discharge.

II. JURISDICTION AND VENUE

8.

This Court has subject matter jurisdiction over this action pursuant

to 28 U.S.C. §§ 1331 and 1343.

9.

Injunctive and declaratory relief are authorized pursuant to 28

U.S.C. §§ 2201 and 2202 and Fed. R. Civ. P. 65 and 57.

10.

Venue in this district is appropriate under 28 U.S.C.§ 1391(b)(1)

and (2) since a substantial number of the events that gave rise to

this complaint occurred in this district.

III. PARTIES Plaintiffs
11.
12.

Harve Porter is a thirty-eight (38) year old individual with developmental disabilities who is currently involuntarily confined at Alexander Human Development Center. Plaintiff Robert Norman is a forty-three year old individual with mild mental retardation who also has a mental illness and was, at the time Plaintiffs' Complaint was originally filed, involuntarily confined at the SEAHDC. He was moved on or about January 15, 2004, to Friendship Community Care Inc., Russellville, Arkansas.

4

Case 4:03-cv-00812-SWW Document 54 Filed 03/16/04 Page 5 of 17 •

13.
Next Friend: 14.

As the Protection and Advocacy system for the State of Arkansas, Disability Rights Center is authorized by federal law to "pursue legal, administrative, and other appropriate remedies or approaches to ensure the protection of, and advocacy for the rights of such
individuals [with developmental disabilities1within the State who
are or who may be eligible for treatment, services or habilitation ... " 42 U.S.C. § l5043(a)(2)(A)(i).
Susan Pierce is an Advocate/Investigator for DRC. In this capacity she monitors facilities providing services to people with developmental and physical disabilities, and mental illness. She has worked for DRC for five years.

Defendants: 15.
16.

Arkansas Department of Human Services (ADHS) is the state agency responsible for the coordination and provision of treatment, programming and services to individuals with disabilities throughout Arkansas. Kurt Knickrehm is the Director of the ADHS. As Director of ADHS, pursuant to Ark. Code Ann. § 25-10-102 (b)(l)(A) (Michie 2002 Rep!.), Defendant Knickrehm is required to exercise his authority to direct, control, and supervise the Division of Developmental Disabilities Services (DDS), the Division of

5

•

Case 4:03-cv-00812-SWW Document 54 Filed 03/16/04 Page 6 of 17

Medical Services (DMS), the Division of Mental Health Services

(DMHS) and all other divisions set forth in said statute. Defendant

Knickrehrn is appointed by and serves at the pleasure of the

Governor. [Ark. Code Ann. § 25-10-101 (b) (Michie 2002 Rep!.)].

17.

Dr. James C. Green is the Director of DDS and is authorized to

operate and manage said division. As director of DDS, Defendant

Green is responsible in an administrative capacity for the provision

and coordination of all services to Plaintiffs by authority delegated

to him by the Board of DDS.

18.

DDS is a division of ADHS and is responsible for the provision of

treatment, programming and services provided to individuals with

developmental disabilities by both community programs and

human development centers throughout the State of Arkansas.

However, the human development centers, as provided by law, are

under the control of the Board of DDS. [Ark. Code Ann. § 25-10-

102(b)(2)(A) (Michie 2002 Rep!.)].

19.

The Board of DDS is a seven-person board created pursuant to

Ark. Code Ann. § 20-48-203 et seq. (Michie 2001 Rep!.). Kay

Barnes, Ron Carmack, Don A. Dunn, Grover Milton Evans,

Wesley Kluck, Randy Lann, and Suzann McCommon are duly

appointed members of the Board.

20.

The Board of DDS is authorized to make regulations concerning

the admission, discharge, care, custody, placement, training and

6

,----------------------Case 4:03-cv-00812-SWW Document 54 Filed 03/16/04 Page 7 of 17

discipline of individuals receiving developmental disability services in the human development centers. [Ark. Code Arm. §2048-205(b) (Michie 2001 Rep!.)]

IV. FACTUAL ALLEGATIONS

21.

Harve Porter is a thirty-eight (38) year old individual with

developmental disabilities who is currently involuntarily confined

at Alexander Human Development Center.

22.

On April3, 1987, Booneville Human Development Center first

took custody ofHarve Porter on a "respite" admission. On or about

April 17, 1987, Booneville Human Development Center changed

the status of Harve Porter to a "regular" admission.

23.

On June 4,1987, Booneville Human Development Center released

Harve Porter to his family, and formally discharged him on June

23,1987.

24.

On December 2, 1994, Ellen Sue Gibson, mother of Harve Porter,

filed a Petition for Appointment of Guardian of the Person and

Estate of Harve Porter. (In the Matter of Harve Edward Porter. an

Incapacitated Person, Polk County Probate #G 94-27).

25.

On February 22, 1995, an order appointing Ellen Sue Gibson

Guardian of the Person and Estate of Plaintiff Harve Porter (In the

Matter ofHarve Edward Porter, an Incapacitated Person, Polk

County Probate #G 94-27) was issued.

7

Case 4:03-cv-00812-SWW Document 54 Filed 03/16/04 Page 8 of 17

26.

On March 30, 1998, SEAHDC took custody of Harve Porter on a

"respite" admission. Alexander Human Development Center then

took custody ofHarve Porter for diagnosis and evaluation on May

6, 1998.

27.

On May 13, 1998, SEAHDC regained custody of Harve Porter for

yet another "respite" admission. On May 28, 1998, SEAHDC then

changed the status of Harve Porter to a "regular" admission.

28.

On or about September 8, 2003, Harve Porter was allegedly the

victim of an incident of abuse at SEAHDC that resulted in

significant bruises and scratches on Harve Porter's back.

29.

An internal investigation conducted by SEAHDC staff found that

Harve Porter's injuries were caused by his bed controls, although a

physician's report dated September 18, 2003 stated, "Suspicious

for abuse, but uncertain of what may have caused this."

30.

On October 22, 2003, Harve Porter was transferred from SEAHDC

to Alexander Human Development Center.

31.

Harve Porter is currently involuntarily confined at Alexander

Human Development Center pursuant to "regular" admission

procedures, which include either statutory process (Ark. Code

Ann. § 20-48-401 et seq. (Michie 2003 Suppl.)) or administrative

process (DDS Director's Office Policy Manual policy numbers

1020, 1037, 1053 and 1086).

8

----------------------------
Case 4:03-cv-00812-SWW Document 54 Filed 03/16/04 Page 9 of 17

32.

Harve Porter has moderate mental retardation. Though he has

been involuntarily confined in various human development centers

for several years, he has never been granted a judicial hearing to

determine whether he should be forced to live his life in an

institutional setting in the custody of the State of Arkansas.

33.

On numerous occasions, Harve Porter has stated to human

development center and DRC staff that he wishes to leave the

Human Development Center, but has not been permitted to do so.

34.

Robert Norman is a forty-three year old individual with mild

mental retardation who also has a mental illness.

35.

On August 2, 1999, Robert Norman, who had been charged with

arson, was committed to the "Arkansas State Hospital or other

suitable facility" by Honorable John B. Plegge to undergo a mental

health evaluation. (State of Arkansas v. Robert Norman, Pui. Cir.

#98-4532).

36.

On or about August 3,1999, SEAHDC took custody of Robert

Norman on a "respite" admission.

37.

On or about September 22, 1999, SEAHDC changed the status of

Robert Norman to a "regular" admission.

38.

On or about January 7, 2000, Honorable John B. Plegge entered an

order of acquittal of Robert Norman by reason of mental disease or

defect and committed him to SEAHDC.

9

Case 4:03-cv-00812-SWW Document 54 Filed 03/16/04 Page 10 of 17

39.

On or about February 23, 2000, Honorable Mary Ann McGowan

dismissed an Act 911 action against Robert Norman pending in

probate court, finding that insofar as Robert Norman had been

found not to be able to participate in his defense of the charge of

arson, that a "final order could not have been entered in his

criminal case until such time as Respondent was found fit to

proceed." (In the Matter of Robert Norman. Pul. Probate # PCV

2000-281).

40.

On Apri12S, 2000, an attorney for the Department of Human

Services for the State of Arkansas filed a guardianship petition in

Bradley County seeking a permanent limited guardianship for an

individual named Charlie Harris over Robert Norman "for the

purpose of consenting to non-emergency medical treatment,

placement and programming that are in Respondent's best

interest." (In the Matter of Robert Norman, an alleged

Incapacitated Person, Bradley Probate # GD-2000-10-1).

41.

On August 14,2000, letters ofpermanent limited guardianship

over Robert Norman setting forth the powers in paragraph seven

were issued to Charlie Harris.

42.

On numerous occasions Robert Norman stated to employees of

SEAHDC and employees ofthe Disability Rights Center that he

wished to leave the facility but was not permitted to do so until he

10
,
l

Case 4:03-cv-00812-SWW Document 54 Filed 03/16/04 Page 11 of 17

was moved to Friendship Community Care, Inc., Russellville

Arkansas, on or about January 15, 2004.

43.

There are six human development centers in the State of Arkansas.

The human development centers provide confined institutional

living for individuals with mental retardation that ranges in

severity from individuals who manage their own daily needs and

activities of daily living, to individuals who are unable to speak

and require restraints to prevent them from injuring themselves.

44.

Plaintiff Porter is involuntarily confined at Alexander HDC and

was previously involuntarily confined at SEAHDC pursuant to

either statutory process (Ark. Code Ann. § 20-48-401 et seq.

(Michie 2003 Supp!.)) or administrative process (DDS Director's

Office Policy Manual policy numbers 1020, 1037, 1053 and 1086).

45.

Plaintiff Norman was confined at SEAHDC from August 14,2000,

until on or about January 15, 2004, pursuant to either statutory

process (Ark. Code Ann. § 20-48-401 et seq. (Michie 2003

Supp!.)) or administrative process (DDS Director's Office Policy

Manual policy numbers 1020, 1037, 1053 and 1086). Plaintiff

Norman continues to be at risk of involuntary confinement in a

HDC pursuant to either statutory process (Ark. Code Ann. § 20-48-

401 et seq. (Michie 2003 Supp!.)) or administrative process (DDS

Director's Office Policy Manual policy numbers 1020, 1037, 1053

and 1086).

11

· ,

Case 4:03-cv-00812-SWW Document 54 Filed 03/16/04 Page 12 of 17

V. LEGAL CLAIMS - CONSTITUTIONAL VIOLATIONS

46.

Plaintiffs incorporate by reference paragraphs I - 45.

47.

All actions complained of herein were taken under color of state

law.

48.

Plaintiffs Porter and Norman have a fundamental liberty interest in

constitutionally adequate admission and discharge procedures to

and from the human development centers in the State of Arkansas.

Insofar as these procedures, whether statutory or mandated by

policy, impact a fundamental liberty interest of Plaintiffs, they are

subject to the judicial standard of strict scrutiny.

49.

Plaintiff Porter is being denied Due Process of Law as guaranteed

by the 14th Amendment insofar as admission and discharge

procedures for the state's human development centers set forth in

Ark. Code Ann. § 20-48-401 et seq. (Michie 2003 Supp!.) and

DDS Director's Office Policy Manual policy numbers 1020, 1037,

1053 and 1086 do not provide for a judicial hearing which grants

plaintiffs before admission: (a) the right to be present; (b) the right

to the effective assistance of appointed counsel, if indigent; (c) the

right to present evidence in his own behalf; (d) the right to cross-

examine witnesses; (e) the right to view any and all petitions and

reports in the court file of his case; (f) the right to subpoena

witnesses; (g) the right to periodic judicial review; (h) the right to

12

Case 4:03-cv-00812-SWW Document 54 Filed 03/16/04 Page 13 of 17

be placed in the least restrictive environment; (i) the right to

adequate and timely notice of the above rights; and, (k) the right to

a standard of judicial involuntary commitment which requires the

state to prove by clear and convincing evidence that the individual

sought to be committed poses a substantial risk of harm to himself

or others and requires a level of supervision and care that can only

be provided by one of the other human development centers in the

State of Arkansas.

50.

Plaintiff Norman was involuntarily confmed at SEAHDC from

August 14, 2000, until on or about January 15, 2004, and was

denied Due Process of Law as guaranteed by the 14th Amendment

insofar as admission and discharge procedures for the state's

human development centers set forth in Ark. Code Ann. § 20-48-

401 et seq. (Michie 2003 Supp\.) and DDS Director's Office Policy

Manual policy numbers 1020, 1037, 1053 and 1086 do not provide

for a judicial hearing which grants plaintiffs before admission: (a)

the right to be present; (b) the right to the effective assistance of

appointed counsel, if indigent; (c) the right to present evidence in

his own behalf; (d) the right to cross-examine witnesses; (e) the

right to view any and all petitions and reports in the court file of

his case; (f) the right to subpoena witnesses; (g) the right to

periodic judicial review; (h) the right to be placed in the least

restrictive environment; (i) the right to adequate and timely notice

13

Case 4:03-cv-00812-SWW Document 54 Filed 03/16/04 Page 14 of 17

of the above rights; and, (k) the right to a standard of judicial

involuntary commitment which requires the state to prove by clear

and convincing evidence that the individual sought to be

committed poses a substantial risk of harm to himself or others and

requires a level of supervision and care that can only be provided

by one of the other human development centers in the State of

Arkansas. He continues to be at risk of involuntary confinement

without due process or equal protection of the laws.

51.

Plaintiffs Harve Porter and Robert Norman are individuals with

mental retardation who are similarly situated to individuals with

mental illness insofar as people with mental retardation and people

with mental illness both face the threat of institutionalization

through involuntary commitment procedures.

52.

Plaintiffs Porter and Norman are being denied Equal Protection of

the law as guaranteed by the 14th Amendment insofar as admission

and discharge procedures for the state's human development

centers set forth in Ark. Code Ann. § 20-48-401 et seq. (Michie

2003 Supp!.), and DDS Director's Office Policy Manual policy

numbers 1020, 1037, 1053 and 1086 do not provide the same or

similar protections to them as are provided to individuals with

mental illness who are involuntarily admitted to a treatment

program or facility pursuant to Ark. Code Ann. § 20-47-201 et seq.

(Michie 2001 Rep!.).

14

Case 4:03-cv-00812-SWW Document 54 Filed 03/16/04 Page 15 of 17

53.

Because the interest implicated here is a fundamental liberty

interest and Plaintiffs Harve Porter and Robert Norman are

similarly situated to individuals with mental illness who are subject

to involuntary commitment procedures, Plaintiffs' equal protection

claim should be reviewed under the strict scrutiny standard.

WHEREFORE, Plaintiffs pray,

A. That the Court assume jurisdiction of this action;

B. That the Court declare unconstitutional Ark. Code Ann. § 20-48-401 et seq.

(Michie 2003 Supp!.) and DDS Director's Office Policy Manual policy

numbers 1020, 1037, 1053 and 1086 pertaining to admission and discharge

procedures of the human development centers;

C. That the Court require Defendants to hold a judicial hearing for Plaintiff

Porter which comports with minimum standards of Due Process and Equal

Protection pursuant to the 14th Amendment; and

D. For attorney's fees, for costs, and for all other proper and just relief to which

th" Plaintiffs maybe entitled. [42 U.S.C. § 1988.]

Respectfully submitted,

Dana K. McClain S. Ct. #01028 Adam H. Butler S. Ct. #03007 Attorneys for Plaintiffs
15

Case 4:03-cv-00812-SWW Document 54 Filed 03/16/04 Page 16 of 17
DISABILITY RIGHTS CENTER 1100 N. University, Suite 201 Little Rock, AR 72207 (SOl) 296-1775 (SOl) 296-1779 FAX
CERTIFICATE OF SERVICE
I, Janet C. Baker, do hereby certify that a copy of the above and foregoing Second Amended Complaint was served upon the following by placing a true and correct copy in
the U.S. Mail postage prepaid, on this ((" n. day of March, 2004.
Breck Hopkins Arkansas Department of Human Services Office of Chief Counsel P.O. Box 1437, Slot S260 Little Rock, AR 72203-1437 Lori Freno, Asst. Attorney General Office of the Attorney General 323 Center Street, Suite 200 Little Rock, AR 72201 William F. Sherman 504 Pyramid Place 221 West Second Street Little Rock, AR 72201
16

Case 4:03-cv-00812-SWW Document 54 Filed 03/16/04 Page 17 of 17
UNITED STATE DISTRICT COURT EASTERN DISTRICT OF ARKANSAS
Exhibits Attached
to Original
Document in Courts's Case File

 
 Case: 4:03-cv-00812-SWW As of:11/28/2010 09:35 AM CST 1 of 11
HDY, TERMED
U.S. District Court Eastern District of Arkansas (Little Rock) CIVIL DOCKET FOR CASE #: 4:03−cv−00812−SWW

Porter, et al v. Knickrehm, et al Assigned to: Judge Susan Webber Wright Demand: $0 Case in other court: USCA8, 05−02978
USCA8, 05−02979 Cause: 42:1983 Other Civil Rights Plaintiff Harve Porter by their next friend, Susan Pierce unknown Susan Pierce
Plaintiff Robert Norman by their next friend, Susan Pierce

Date Filed: 10/14/2003 Date Terminated: 06/09/2005 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Adam H. Butler Butler &Green, P.A. 301 North Broadway North Little Rock, AR 72114 501−244−0700 Email: butleradam76@hotmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dana K. McClain Disability Rights Center, Inc. Evergreen Place 1100 North University Avenue Suite 201 Little Rock, AR 72207 (501) 296−1775 Email: Dana.McClain@att.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Griffin J. Stockley Attorney at Law 304 North Schiller Little Rock, AR 72205 501−376−1281 Email: grifstockley@sbcglobal.net TERMINATED: 02/12/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Janet Cecil Baker Disability Rights Center, Inc. Evergreen Place 1100 North University Avenue Suite 201 Little Rock, AR 72207 (501) 296−1775 Email: janbaker@arkdisabilityrights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adam H. Butler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dana K. McClain (See above for address)

Case: 4:03-cv-00812-SWW As of:11/28/2010 09:35 AM CST 2 of 11

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Griffin J. Stockley (See above for address) TERMINATED: 02/12/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Janet Cecil Baker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Disability Rights Center Inc

represented by Adam H. Butler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dana K. McClain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Griffin J. Stockley (See above for address) TERMINATED: 02/12/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Janet Cecil Baker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Kurt Knickrehm in his official capacity as Director of the Arkansas Department of Human Services
Defendant James C Green Dr., in his official capacity as Director of Developmental Disabilities Services
Defendant Kay Barnes in their official capacities as members of the Board of Developmental Disabilities Services

represented by Breck G. Hopkins Arkansas Department of Human Services − LR Office of Chief Counsel Post Office Box 1437 Slot S−260 Little Rock, AR 72203−1437 (501) 682−8598 Email: breck.hopkins@arkansas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Breck G. Hopkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lori Freno−Engman Arkansas Attorney General's Office Catlett−Prien Tower Building 323 Center Street

Case: 4:03-cv-00812-SWW As of:11/28/2010 09:35 AM CST 3 of 11

Suite 200 Little Rock, AR 72201−2610 (501) 682−1314 Email: lori.freno@arkansasag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Ron Carmack in their official capacities as members of the Board of Developmental Disabilities Services TERMINATED: 10/25/2004

represented by Lori Freno−Engman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Don A Dunn in their official capacities as members of the Board of Developmental Disabilities Services TERMINATED: 10/25/2004

represented by Lori Freno−Engman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Grover Milton Evans in their official capacities as members of the Board of Developmental Disabilities Services

represented by Lori Freno−Engman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Wesley Kluck in their official capacities as members of the Board of Developmental Disabilities Services

represented by Lori Freno−Engman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Randy Lann in their official capacities as members of the Board of Developmental Disabilities Services

represented by Lori Freno−Engman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Suzann McCommon in their official capacities as members of the Board of Developmental Disabilities Services

represented by Lori Freno−Engman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Thomas Dolislager in their official capacities as members of the Board of Developmental Disabilities Services

represented by Lori Freno−Engman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Luke Heffley in their official capacities as members of the Board of Developmental Disabilities Services

represented by Lori Freno−Engman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor

represented by

Case: 4:03-cv-00812-SWW As of:11/28/2010 09:35 AM CST 4 of 11

Families and Friends of Care Facility Residents

William F. Sherman Attorney at Law 809 North Palm Street Little Rock, AR 72205 501−372−3148 Fax: 501−663−7004 Email: wfsherman@sbcglobal.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Ellen Sue Gibson

represented by William F. Sherman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/14/2003 11/03/2003 11/03/2003 11/03/2003 11/03/2003 11/03/2003 11/03/2003 11/03/2003 11/03/2003 11/03/2003 11/04/2003 11/04/2003
11/04/2003
11/04/2003
11/04/2003

# Docket Text
1 COMPLAINT, summons issued and returned to Attorney; $150.00 filing fee paid, receipt #110245 (former empl) (Entered: 10/15/2003)
2 RETURN OF SERVICE executed upon defendant Don A Dunn on 10/15/03 (bsm) (Entered: 11/04/2003)
3 RETURN OF SERVICE executed upon defendant Kay Barnes on 10/15/03 (bsm) (Entered: 11/04/2003)
4 RETURN OF SERVICE executed upon defendant Wesley Kluck on 10/15/03 (bsm) (Entered: 11/04/2003)
5 RETURN OF SERVICE executed upon defendant Kurt Knickrehm on 10/22/03 (bsm) (Entered: 11/04/2003)
6 RETURN OF SERVICE executed upon defendant Suzann McCommon on 10/20/03 (bsm) (Entered: 11/04/2003)
7 RETURN OF SERVICE executed upon defendant James C Green on 10/22/03 (bsm) (Entered: 11/04/2003)
8 RETURN OF SERVICE executed upon defendant Randy Lann on 10/15/03 (bsm) (Entered: 11/04/2003)
9 RETURN OF SERVICE executed upon defendant Ron Carmack on 10/15/03 (bsm) (Entered: 11/04/2003)
10 RETURN OF SERVICE executed upon defendant Grover Milton Evans on 10/16/03 (bsm) (Entered: 11/04/2003)
11 ANSWER by defts Kurt Knickrehm and James C Green (bsm) (Entered: 11/05/2003)
12 NOTICE of related case by Kay Barnes, Ron Carmack, Don A Dunn, Grover Milton Evans, Wesley Kluck, Randy Lann and Suzann McCommon − Case Number: 4:03cv00205 (bsm) (Entered: 11/05/2003)
13 MOTION by defts Kay Barnes, Ron Carmack, Don A Dunn, Grover Milton Evans, Wesley Kluck, Randy Lann and Suzann McCommon to dismiss FILED UNDER SEAL (bsm) Modified on 11/13/2003 (Entered: 11/05/2003)
14 BRIEF by defts Kay Barnes, Ron Carmack, Don A Dunn, Grover Milton Evans, Wesley Kluck, Randy Lann and Suzann McCommon in support of motion to dismiss [13−1] FILED UNDER SEAL (bsm) Modified on 11/13/2003 (Entered: 11/05/2003)
15 MOTION by defts Kay Barnes, Ron Carmack, Don A Dunn, Grover Milton Evans, Wesley Kluck, Randy Lann and Suzann McCommon to file under seal motion to dismiss and brief in support of motion to dismiss (bsm) (Entered: 11/05/2003)

Case: 4:03-cv-00812-SWW As of:11/28/2010 09:35 AM CST 5 of 11

11/07/2003 11/07/2003 11/12/2003
11/17/2003 11/18/2003 11/20/2003
11/20/2003 11/20/2003 11/25/2003
11/25/2003 11/26/2003 11/28/2003 12/03/2003 12/05/2003 12/05/2003 12/10/2003
12/10/2003

16 NOTICE of related case by defts Kurt Knickrehm and James C Green Case Number: 4:03cv00205 (bsm) (Entered: 11/10/2003)
17 MOTION by defts Kurt Knickrehm and James C Green to file pleadings and motions under seal (bsm) Modified on 11/12/2003 (Entered: 11/10/2003)
18 ORDER by Judge William R. Wilson granting motion filed by defts Barnes, Carmack, Dunn, Evans, Kluck, Lann and McCommon to file under seal their motion to dismiss and brief in support of motion to dismiss [15−1]; Clerk is directed to file these pleadings under seal (cc: all counsel) (bsm) Modified on 11/17/2003 (Entered: 11/13/2003)
19 MOTION by plaintiffs for extension of time in which to respond to separate defts' motion to dismiss (bsm) (Entered: 11/18/2003)
20 ORDER OF TRANSFER (DOC) Case reassigned to Chief Judge Susan W. Wright ; case is related to 4:03cv00205 which was previously assigned to Judge Wright (cc: all counsel) (bsm) (Entered: 11/19/2003)
21 INITIAL SCHEDULING ORDER (DOC); Rule 26(f) conference to be held on 1/12/04; Rule 26(f) report due 1/26/04; Rule 16(b) conference (if needed) will be held on 1/30/04 @ 1:00 p.m.; proposed trial date set for 9/27/04; Final Scheduling Order will be issued on or before 2/2/04 (cc: all counsel) (vjt) (Entered: 11/21/2003)
22 NOTICE by pltfs of filing Amended Complaint (vjt) (Entered: 11/21/2003)
23 FIRST AMENDED complt [1−1] by pltfs (vjt) (Entered: 11/21/2003)
24 MOTION by separate official−capacity defts Kay Barnes, Ron Carmack, Don A Dunn, Grover Milton Evans, Wesley Kluck, Randy Lann, and Suzann McCommon to file under seal motion to dismiss amended complt and brief in support (vjt) (Entered: 11/26/2003)
25 RESPONSE by pltfs to motion to dismiss of official capacity defts Barnes, Carmack, Dunn, Evans, Kluck, Lann and McCommon [13−1] (vjt) (Entered: 11/26/2003)
26 BRIEF by pltfs in support of motion response [25−1] (vjt) (Entered: 11/26/2003)
27 MOTION by defts Knickrehm and Green to extend time to answer pltfs' complt (vjt) (Entered: 12/01/2003)
28 RESPONSE by pltfs to Attorney General's motion to dismiss amended complt (vjt) (Entered: 12/04/2003)
29 MOTION by Families and Friends and Ellen Sue Gibson to intervene and to redact names of individual pltfs (vjt) (Entered: 12/09/2003)
30 MEMORANDUM by Families and Friends and Ellen Sue Gibson in support of motion to intervene [29−1] (vjt) (Entered: 12/09/2003)
31 ORDER by Chief Judge Susan W. Wright granting in part separate defts Knickrehm and Green's motion to file pleadings and motions under seal [17−1]; if defts believe that a particular motion, pleading, or other document contains protected medical info, they may file a separate motion to file such motion, pleading, or documents under seal; granting separate defts Barnes, Carmack, Dunn, Evans, Kluck, Lann, and McCommon's motion to file under seal their motion to dismiss amended complt and supporting brief [24−1] granting motion to extend time to answer pltfs' complt [27−1]; separate defts Knickrehm and Green shall have up to 12/19/03 in which to answer pltfs' amended complt; granting motion for extension of time in which to respond to separate defts' motion to dismiss [19−1]; the Clerk is directed to remove the notices of related case from the pending motions list [12−1] [16−1] (cc: all counsel) (bmt) Modified on 12/12/2003 (Entered: 12/11/2003)
MOTION by defts Kay Barnes, Ron Carmack, Don A Dunn, Grover Milton Evans, Wesley Kluck, Randy Lann, Suzann McCommon to dismiss amended complt UNDER SEAL (bmt) (Entered: 04/09/2004)

Case: 4:03-cv-00812-SWW As of:11/28/2010 09:35 AM CST 6 of 11

12/10/2003 12/12/2003 12/12/2003 12/15/2003 12/18/2003 12/18/2003 12/19/2003 12/31/2003 01/05/2004 01/16/2004 01/21/2004 01/26/2004 01/27/2004 02/12/2004
02/23/2004 02/25/2004 02/26/2004
02/26/2004 03/02/2004 03/05/2004

BRIEF by defts Kay Barnes, Ron Carmack, Don A Dunn, Grover Milton Evans, Wesley Kluck, Randy Lann, Suzann McCommon in of motion to dismiss amended complt [0−1] UNDER SEAL (bmt) (Entered: 04/09/2004)
32 RESPONSE by defts Barnes, Carmack, Dunn, Evans, Kluck, Lann, and McCommon to motion to intervene [29−1], and to redact names of individual pltfs [29−2] (vjt) (Entered: 12/15/2003)
33 REPLY by defts Barnes, Carmack, Dunn, Evans, Kluck, Lann, and McCommon to pltf's response to motion to dismiss [13−1] (vjt) (Entered: 12/15/2003)
34 RESPONSE by defts Kurt Knickrehm and James C Green to motion to intervene [29−1] and redact names of individual pltfs [29−2] (vjt) (Entered: 12/15/2003)
35 RESPONSE by pltfs to motion to intervene [29−1] and to redact names of individual pltfs [29−2] (vjt) (Entered: 12/19/2003)
36 BRIEF by pltfs in support of motion response [35−1] (vjt) (Entered: 12/19/2003)
37 ANSWER by defts Kurt Knickrehm and James C Green to first amended complt [23−1] (vjt) (Entered: 12/22/2003)
38 MOTION by movants Families and Friends and Ellen Sue Gibson to extend time to file reply to pltf's resp to motion to intervene (bmt) (Entered: 01/02/2004)
39 ORDER by Chief Judge Susan W. Wright granting motion to extend time to file reply to pltf's resp to motion to intervene until 1/16/04 [38−1] (cc: all counsel) (bmt) (Entered: 01/06/2004)
40 MEMORANDUM REPLY by Families and Friends and Ellen Sue Gibson to pltf's response to motion to intervene [29−1] and to redact names of individual pltfs [29−2] (vjt) (Entered: 01/16/2004)
41 JOINT RULE 26(f) REPORT by parties (vjt) (Entered: 01/22/2004)
42 FINAL SCHEDULING ORDER by Chief Judge Susan W. Wright; court trial set for 9:30 9/27/04 in Little Rock; discovery due 7/14/04; pretrial info sheet due 8/27/04 (cc: all counsel) (vjt) (Entered: 01/26/2004)
43 MOTION by Griffin J. Stockley to withdraw as counsel of record for pltfs (vjt) (Entered: 01/28/2004)
44 ORDER by Chief Judge Susan W. Wright that separate defts' motion to dismiss [13−1] is GRANTED IN PART AND DENIED IN PART; pltf's equal protection claims are dismissed w/o prej for failure to state a claim; pltfs may proceed with their procedural due process claims; granting motion to intervene [29−1]; denying motion to redact names of individual pltfs [29−2]; granting motion by Griffin J. Stockley to withdraw as counsel of record for pltfs [43−1] (cc: all counsel) (vjt) (Entered: 02/13/2004)
45 ANSWER IN INTERVENTION by Families and Friends and Ellen Sue Gibson to the first amended complt [23−1] (vjt) (Entered: 02/24/2004)
46 MOTION by pltf for leave to file second amended complt (vjt) (Entered: 02/25/2004)
47 MOTION by separate official−capacity defts Kay Barnes, Ron Carmack, Don A Dunn, Grover Milton Evans, Wesley Kluck, Randy Lann, and Suzann McCommon for leave to file under seal answer to first amended complt (vjt) (Entered: 02/27/2004)
48 ANSWER by separate defts Kay Barnes, Ron Carmack, Don A Dunn, Grover Milton Evans, Wesley Kluck, Randy Lann, Suzann McCommon to first amended complt [23−1] (UNDER SEAL) (vjt) (Entered: 02/27/2004)
49 RESPONSE by Families and Friends and Ellen Sue Gibson to motion to file second amended complt [46−1] (vjt) (Entered: 03/03/2004)
50 RESPONSE by defts Kurt Knickrehm and James C Green to pltfs' motion for leave to file second amended complt [46−1] (vjt) (Entered: 03/05/2004)

Case: 4:03-cv-00812-SWW As of:11/28/2010 09:35 AM CST 7 of 11

03/05/2004 03/12/2004
03/15/2004 03/16/2004 03/23/2004 03/24/2004 03/26/2004 04/01/2004 04/05/2004
04/05/2004 04/08/2004 04/20/2004
06/29/2004 06/30/2004
07/27/2004 07/27/2004 07/27/2004

51 AMENDED MOTION by pltf for leave to file second amended complt (vjt) (Entered: 03/05/2004)
52 ORDER by Chief Judge Susan W. Wright granting motion for leave to file under seal defts' answer to first amended complt [47−1]; granting pltfs' motion [46−1] and amended motion for leave to file second amended complt [51−1]; pltfs are directed to file their second amended complt w/in 10 days from the entry date of this Order (cc: all counsel) (vjt) (Entered: 03/15/2004)
53 RESPONSE by Families and Friends and Ellen Sue Gibson to pltfs' amended motion to file second amended complt (vjt) (Entered: 03/16/2004)
54 SECOND AMENDED complaint [23−1] [1−1] by pltfs (vjt) (Entered: 03/17/2004)
55 ANSWER by separate defts Knickrehm and Green to second amended complt [54−1] (vjt) (Entered: 03/23/2004)
56 ANSWER IN INTERVENTION by Families and Friends and Ellen Sue Gibson to second amended complt [54−1] (vjt) (Entered: 03/25/2004)
57 MOTION by separate official−capacity defts Barnes, Carmack, Dunn, Evans, Kluck, Lann, and McCommon for leave to file under seal answer to second amended complt (vjt) (Entered: 03/29/2004)
58 MOTION by defts Kurt Knickrehm and James C Green for leave to file under seal answer to second amended complt (vjt) (Entered: 04/01/2004)
59 ORDER by Chief Judge Susan W. Wright granting Official−Capacity Defts' Barnes, Carmack, Dunn, Evans, Kluck, Lann, and McCommon's motion for leave to file under seal answer to second amended complt [57−1] (cc: all counsel) (bmt) (Entered: 04/06/2004)
60 ANSWER of separate defts Kay Barnes, Ron Carmack, Don A Dunn, Grover Milton Evans, Wesley Kluck, Randy Lann, Suzann McCommon to second amended complt (UNDER SEAL) (bmt) (Entered: 04/06/2004)
61 ORDER by Chief Judge Susan W. Wright granting official−capacity defts Knickrehm and Green's motion for leave to file under seal answer to second amended complt [58−1] (cc: all counsel) (vjt) (Entered: 04/09/2004)
62 ORDER by Chief Judge Susan W. Wright that separate defts' motion to dismiss amended complt [0−1] is DENIED AS MOOT; parties are directed to adhere to the following procedure when seeking leave to file documents under seal: submit documents to be filed under seal to the Clerk only after the Court has granted leave to file; and, all documents filed under seal should contain the phrase "FILED UNDER SEAL" on the first page of the document; separate defts Green and Knickrehm are directed to file, UNDER SEAL, their answer to pltfs' second amended complt w/in 10 days from the entry date of this Order (cc: all counsel) (vjt) (Entered: 04/21/2004)
63 MOTION by defts Knickrehm and Green for extension of time to file expert report (vjt) (Entered: 06/29/2004)
64 ORDER by Chief Judge Susan W. Wright granting defts' motion for extension of time to file expert report [63−1]; defts Knickrehm and Green shall have until 10 working days after Dr. Miller returns to work, or 30 days prior to the trial, whichever occurs first, to file Dr. Miller's expert report (cc: all counsel) (vjt) (Entered: 06/30/2004)
65 MOTION by plaintiffs for summary judgment on Fourteenth Amendment Due Process and Equal Protection Claims (bmt) (Entered: 07/28/2004)
66 BRIEF by plaintiffs in support of motion for summary judgment on Fourteenth Amendment Due Process and Equal Protection Claims [65−1] (bmt) (Entered: 07/28/2004)
67 STATEMENT OF FACTS (Local Rule 56.1) by plaintiffs in support of motion for summary judgment on Fourteenth Amendment Due Process and Equal Protection Claims [65−1] (bmt) (Entered: 07/28/2004)

Case: 4:03-cv-00812-SWW As of:11/28/2010 09:35 AM CST 8 of 11

07/27/2004 07/27/2004 07/27/2004
08/06/2004
08/09/2004 08/09/2004 08/09/2004
08/09/2004
08/10/2004 08/10/2004
08/10/2004 08/10/2004 08/11/2004
08/16/2004
08/18/2004 08/18/2004 08/23/2004 08/26/2004 08/27/2004 08/27/2004

68 MOTION by defts Kurt Knickrehm and James C Green for summary judgment (bmt) (Entered: 07/28/2004)
69 BRIEF by defts Kurt Knickrehm and James C Green in support of motion for summary judgment [68−1] (bmt) (Entered: 07/28/2004)
70 STATEMENT OF FACTS (Local Rule 56.1) by defts Kurt Knickrehm and James C Green in support of motion for summary judgment [68−1] (bmt) (Entered: 07/28/2004)
71 MOTION by separate official−capacity defts Kay Barnes, Randy Lann, Wesley Kluck, Thomas Dolislager, Grover Evans, Suzann McCommon, and Luke Heffley to file under seal response to pltfs' motion for summary judgment (vjt) (Entered: 08/11/2004)
72 RESPONSE by pltfs to defts' motion for summary judgment [68−1] (vjt) (Entered: 08/11/2004)
73 BRIEF by pltfs in support of response to defts' motion for summary judgment [72−1] (vjt) (Entered: 08/11/2004)
74 RESPONSE by pltfs to defts Knickrehm, Green and Official Capacity Board of Developmental Disabilities' statement of material facts [70−1] (vjt) Modified on 09/09/2004 (Entered: 08/11/2004)
75 ORDER by Chief Judge Susan W. Wright granting separate defts' motion to file under seal response to pltfs' motion for summary judgment [71−1] (cc: all counsel) (vjt) (Entered: 08/11/2004)
76 MOTION by Families and Friends and Ellen Sue Gibson for extension of time to respond to motions for summary judgment (vjt) (Entered: 08/11/2004)
77 NOTICE by separate defts Kay Barnes, Randy Lann, Wesley Kluck, Grover Evans, Suzann McCommon, Thomas Dolislager, and Luke Heffley of filing response to pltfs' motion for summary judgment under seal (vjt) (Entered: 08/11/2004)
78 RESPONSE by defts Knickrehm, Green and Board Members to pltfs' motion for summary judgment [65−1] (UNDER SEAL) (vjt) (Entered: 08/11/2004)
79 RESPONSE by defts Knickrehm, Green, and Board Members to pltfs' statement of undisputed material facts [67−1] (UNDER SEAL) (vjt) (Entered: 08/11/2004)
80 SUPPLEMENT TO MOTION by defts Knickrehm and Green, and Board members Barnes, Evans, Kluck, Lann, Dolislager, Heffley, and McCommon for summary judgment (vjt) (Entered: 08/12/2004)
81 ORDER by Chief Judge Susan W. Wright granting the Intervenors' motion for extension of time until 8/31/04 to respond to motions for summary judgment [76−1] [65−1] [68−1] (cc: all counsel) (vjt) (Entered: 08/17/2004)
82 REPLY by defts to pltfs' response to motion for summary judgment [68−1] (vjt) (Entered: 08/18/2004)
83 REVISION TO STATEMENT OF FACTS (Local Rule 56.1) by defts in support of motion for summary judgment [68−1] [70−1] (vjt) (Entered: 08/18/2004)
84 SUPPLEMENT by pltfs to their motion for summary judgment [65−1] (vjt) (Entered: 08/24/2004)
85 MOTION by defts Barnes, Evans, Kluck, Lann, Dolislager, McCommon, and Heffley to file under seal their pretrial disclosures (vjt) (Entered: 08/27/2004)
86 MOTION by Families and Friends and Ellen Sue Gibson to strike Exhibit from pltfs' motion for summary judgment (vjt) (Entered: 08/27/2004)
87 BRIEF by Families and Friends and Ellen Sue Gibson in support of motion to strike Exhibit from pltfs' motion for summary judgment [86−1] (vjt) (Entered: 08/27/2004)

Case: 4:03-cv-00812-SWW As of:11/28/2010 09:35 AM CST 9 of 11

08/27/2004 08/27/2004 08/27/2004 08/27/2004 08/27/2004 08/27/2004 08/30/2004 09/09/2004 09/10/2004 09/14/2004 10/25/2004
10/27/2004 10/27/2004 11/23/2004
12/09/2004 12/14/2004 01/18/2005 02/03/2005

88 PRETRIAL DISCLOSURE SHEET by pltfs − est no longer than 3 days for trial (vjt) (Entered: 08/30/2004)
89 RESPONSE by intervenors Families and Friends and Ellen Sue Gibson to pltfs' motion for summary judgment [65−1] (vjt) (Entered: 08/30/2004)
90 MOTION by intervenors Families and Friends and Ellen Sue Gibson to file under seal their pretrial disclosure info (vjt) Modified on 08/31/2004 (Entered: 08/30/2004)
91 PRETRIAL DISCLOSURE SHEET by intervenors Families and Friends and Ellen Sue Gibson − est 2 days for trial (UNDER SEAL) (vjt) (Entered: 08/30/2004)
92 MOTION by separate defts Knickrehm and Green to file under seal their pretrial disclosures (vjt) (Entered: 08/30/2004)
93 PRETRIAL DISCLOSURE SHEET by defts Knickrehm and Green − est 2 to 3 days for trial (UNDER SEAL) (vjt) (Entered: 08/30/2004)
94 SECOND SUPPLEMENT TO MOTION by defts Knickrehm, Green, Barnes, Evans, Kluck, Lann, Dolislager, McCommon, and Heffley for summary judgment (vjt) (Entered: 08/30/2004)
95 MOTION by pltfs for continuance of trial and for extension of time to complete remaining deadlines (vjt) (Entered: 09/10/2004)
96 OBJECTIONS by defts Barnes, Lann, Kluck, Dolislager, Evans, McCommon, and Heffley to pltfs' pretrial disclosures [88−1] (vjt) (Entered: 09/13/2004)
97 ORDER by Chief Judge Susan W. Wright granting pltfs' motion for continuance [95−1] [95−2]; a new trial date will be set in a separate order (cc: all counsel) (vjt) (Entered: 09/15/2004)
98 ORDER by Chief Judge Susan W. Wright, upon defts Dunn and Carmack having been sued in their official capacities and having ceased to hold public office, the Clerk is directed to substitute Thomas Dolislager in place of deft Dunn and Luke Heffley in place of Ron Carmack; granting the parties' motions to file pretrial disclosures under seal [85−1] [90−1] [92−1] (cc: all counsel) (vjt) (Entered: 10/26/2004)
99 NOTICE of filing by defts Barnes, Lann, Kluck, Evans, McCommon, Dolislager, and Heffley of pretrial disclosures under seal (vjt) (Entered: 10/28/2004)
100 PRETRIAL DISCLOSURE SHEET by defts Barnes, Lann, Kluck, Evans, McCommon, Dolislager, and Heffley − est 3 days for trial (UNDER SEAL) (vjt) (Entered: 10/28/2004)
101 MEMORANDUM OPINION AND ORDER by Chief Judge Susan W. Wright that defts' motions for summary judgment [68−1] [80−1] [94−1] and pltfs' motion for summary judgment [65−1] are GRANTED IN PART and DENIED IN PART; defts are directed to submit proposed post−admission review procedures, w/in 20 days from the entry date of this Order, and pltfs have up to 20 days from the filing date of defts' proposal in which to file a response; denying Intervenors' motion to strike [86−1] (cc: all counsel) (vjt) (Entered: 11/24/2004)
102 MOTION by defts Kurt Knickrehm and James C Green for extension of time to submit proposed post−admission review procedures (vjt) (Entered: 12/10/2004)
103 ORDER by Chief Judge Susan W. Wright granting motion for extension of time to submit proposed post−admission review procedures until 1/15/05 [102−1] (cc: all counsel) (bmt) (Entered: 12/15/2004)
104 SUBMISSION by defts Knickrehm, Green, Barnes, Evans, Kluck, Lann, McCommon, Dolislager, and Heffley of Proposed Human Development Center Rules (vjt) (Entered: 01/19/2005)
105 MOTION by Families and Friends and Ellen Sue Gibson for extension of time to file response to Defts' Proposed Human Development Center Rules (vjt) (Entered: 02/04/2005)

Case: 4:03-cv-00812-SWW As of:11/28/2010 09:35 AM CST 10 of 11

02/04/2005 02/08/2005 02/09/2005 02/11/2005 02/11/2005 02/14/2005
02/23/2005 02/23/2005 02/25/2005 03/04/2005 06/09/2005
06/09/2005
06/23/2005 06/23/2005 06/30/2005 06/30/2005

106 OBJECTIONS by Pltfs to Defts' Proposed Human Development Center Rules [104−1] (vjt) (Entered: 02/07/2005)
107 ORDER by Chief Judge Susan W. Wright granting Intervenors' motion for extension of time until 2/14/05 to file a response to Defts' Proposed Human Development Center Rules [105−1] (cc: all counsel) (vjt) (Entered: 02/09/2005)
108 MOTION by defts Knickrehm, Green, Barnes, Lann, Kluck, Dolislager, McCommon, and Heffley for extension of time to reply to pltfs' objections to defts' Proposed Human Development Center Rules (vjt) (Entered: 02/10/2005)
109 MOTION by plaintiffs to extend time in which to respond to defendants' reply to plaintiffs' objections to defendants' proposed Human Development Center Rules and to Intervenors' objections to defendants' proposed Human Development Center Rules (bkp) (Entered: 02/14/2005)
110 RESPONSE by intervenors Families and Friends and Ellen Sue Gibson to proposed Human Development Center Rules (bkp) (Entered: 02/14/2005)
111 ORDER by Chief Judge Susan W. Wright granting defts' motion for extension of time until 2/23/05 to file responses and/or amended proposed post−admission review procedures [108−1]; granting pltfs' motion to extend time until 3/4/05 to respond to Intervenors' objections and defts' reply and/or amended submission [109−1] (cc: all counsel) (vjt) (Entered: 02/15/2005)
112 RESPONSE by defts Knickrehm, Green, Barnes, Lann, Kluck, Dolislager, McCommon, and Heffley to objections of pltfs and intervenors to defts' Proposed Human Development Center Rules [106−1] [110−1] (vjt) (Entered: 02/24/2005)
113 SUBMISSION by defts Knickrehm, Green, Barnes, Lann, Kluck, Dolislager, McCommon, and Heffley of Amended Proposed Human Development Center Rules (vjt) (Entered: 02/24/2005)
114 REPLY by pltfs to response of Intervenors to Proposed Human Development Center Rules [110−1] (vjt) (Entered: 02/28/2005)
115 OBJECTIONS by pltfs to defts' Amended Proposed Human Development Center Rules [113−1] (vjt) (Entered: 03/04/2005)
116 ORDER by Chief Judge Susan W. Wright the Court concludes that defts' amended proposed rules [113−1] are consistent with constitutional guarantees and provide an adequate remedy in this case; Defts shall implement with all possible speed, the proposed Division of Developmental Disabilities Services Human Development Center Admission and Discharge Rules submitted 2/23/05; Purs to the Judgment entered with this order, case is dismissed (cc: all counsel) (bmt) (Entered: 06/10/2005)
117 JUDGMENT: by Chief Judge Susan W. Wright Consistent with the Court's Order entered this date, defts shall immediately implement the proposed Division of Developmental Disabilities Services Human Development Center Admission and Discharge Rules submitted 2/23/05; case is therefore dismissed (cc: all counsel) (bmt) (Entered: 06/10/2005)
118 MOTION by plaintiffs Harve Porter and Disability Rights for atty's fees and litigation expenses and costs (vjt) (Entered: 06/24/2005)
119 BRIEF by plaintiffs Harve Porter and Disability Rights in support of motion for atty's fees [118−1] and litigation expenses and costs [118−2] (vjt) (Entered: 06/24/2005)
120 RESPONSE to Motion 118 for Attorney Fees, Litigation Expenses and Costs filed by defts Wesley Kluck, Randy Lann, Suzann McCommon, Thomas Dolislager, Luke Heffley, Kurt Knickrehm, James C Green, Kay Barnes, Grover Milton Evans. (bmt, ) (Entered: 07/05/2005)
121 BRIEF filed by defts Wesley Kluck, Randy Lann, Suzann McCommon, Thomas Dolislager, Luke Heffley, Kurt Knickrehm, James C Green, Kay Barnes, Grover Milton Evans in support of 120 Response to Motion for Attorneys' fees, Litigation Expenses and Costs. (bmt, ) (Entered: 07/05/2005)

Case: 4:03-cv-00812-SWW As of:11/28/2010 09:35 AM CST 11 of 11

07/01/2005
07/06/2005 07/06/2005 07/06/2005 07/11/2005 07/11/2005 07/12/2005 07/12/2005 07/12/2005 07/29/2005
09/16/2005
09/16/2005 09/05/2006

122 NOTICE OF APPEAL as to 116 Order on Motion for Relief, 117 Judgment, by plaintiffs Harve Porter, Disability Rights Center, Inc. Filing fee paid $ 255, receipt number 400 120530.(appellant's completed form "A" attached) (dac ) (Entered: 07/06/2005)
123 CERTIFICATE OF MAILING by the Clerk re 122 Notice of Appeal, (dac ) (Entered: 07/06/2005)
124 NOTIFICATION OF APPEAL and NOA SUPPLEMENT as to 122 Notice of Appeal, 116 Order on Motion for Relief, 117 Judgment (dac ) (Entered: 07/06/2005)
Certified and Transmitted Record on Appeal to US Court of Appeals re 122 Notice of Appeal, (dac, ) (Entered: 07/06/2005)
125 NOTICE OF CROSS APPEAL as to 101 Order on Motion for Relief, by Families and Friends of Care Facility Residents, Ellen Sue Gibson. Filing fee $ 255, receipt number 120682. Appeal Record due by 7/13/2005. (dac ) (Entered: 07/12/2005)
128 NOTICE OF CERTIFICATE as to no Transcript by Disability Rights Center, Inc. (vjt) (Entered: 07/13/2005)
126 NOTIFICATION OF APPEAL and NOA SUPPLEMENT as to 101 Order on Motion for Relief 125 Notice of Cross Appeal. (dac ) (Entered: 07/12/2005)
Certified and Transmitted Record on Appeal(notice of cross appeal, order and docket entries) to US Court of Appeals re 125 Notice of Cross Appeal (dac, ) (Entered: 07/12/2005)
127 CERTIFICATE OF MAILING by the Clerk re 126 Notification of Appeal and NOA Supplement, 125 Notice of Cross Appeal (dac, ) (Entered: 07/12/2005)
129 NOTICE of Docketing Record on Appeal(certified copies of NOA &docket entries) from USCA re 122 Notice of Appeal filed by Disability Rights Center, Inc.Harve Porter,(USCA8 Number 05−2978) 125 Notice of Cross Appeal filed by Families and Friends of Care Facility Residents, Ellen Sue Gibson, USCA Case Number 05−2979 (dac ) (Entered: 07/29/2005)
130 ORDER granting in part and denying in part 118 Motion for Attorney Fees, granting in part and denying in part 118 Motion for Bill of Costs . Plaintiffs are granted $5,329.93 in attorney's fees and $2,640.79 in costs. Signed by Judge Susan Webber Wright on 9/16/05. (dac ) (Entered: 09/16/2005)
131 CERTIFICATE OF MAILING by the Clerk re 130 Order on Motion for Attorney Fees, Order on Motion for Bill of Costs (dac, ) (Entered: 09/16/2005)
132 MANDATE of USCA as to 122 Notice of Appeal filed by Disability Rights Center, Inc. Harve Porter, 125 Notice of Cross Appeal filed by Families and Friends of Care Facility Residents, Ellen Sue Gibson. Judgment of the district court is affirmed in accordance with the opinion of this Court. (Attachment: # 1 Opinion)(dac, ) (Entered: 09/06/2006)

 
 Case: 05-2979 Page: 1 Date Filed: 04/24/2006

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

HARVE PORTER, et al., Plaintiffs,
vs.
KURT KNICKREHM, et al.,
Defendants,
and
FAMILIES AND FRIENDS OF CARE FACILITY RESIDENTS AND ELLEN SUE GIBSON
Defendant Intervenors.

)

)

)

) Eighth Circuit File No.

)

)

05-2978

)

05-2979

)

)

)

)

)

)

)

)

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION
THE HONORABLE SUSAN WEBBER WRIGHT UNITED STATES DISTRICT JUDGE
BRIEF OF APPELLANTS/CROSS-APPELLEES HARVE PORTER; DISABILITY RIGHTS CENTER, INC.
Dana McClain, Appellants attorney Disability Rights Center, Inc. 1100 N. University, Ste 201 Little Rock, AR 72207 501-296-1775

Case: 05-2979 Page: 2 Date Filed: 04/24/2006
SUMMARY OF THE CASE AND REQUEST FOR ORAL ARUGUMENT
On October 14, 2003, Plaintiffs Harve Porter and Robert Norman, two adults with mental retardation, and Disability Rights Center, Inc., filed their complaint against two employees of the Arkansas Department of Human Services (“ADHS”) and the members of the Board of Developmental Disabilities Services (“Board”) in their official capacities. The complaint alleged that Defendants had involuntarily confined Mrssrs. Porter and Norman in a human development center (“HDC”) in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Plaintiffs sought a declaration that certain provisions of the Arkansas Mental Retardation Act and policies of the Arkansas Division of Developmental Disabilities Services (“DDS”) governing admission and discharge from HDCs are unconstitutional.
On February 12, 2004, the District Court granted in part and denied in part Defendants’ motion to dismiss Plaintiffs’ original complaint. Following the close of discovery on July 27, 2004, Plaintiffs filed a Motion for Summary Judgment. Defendants also filed a Motion for Summary Judgment on July 27, 2004.
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By Memorandum Opinion and Order dated November 23, 2004, the District Court granted in part and denied in part Plaintiffs’ and Defendants’ arguments. On June 9, 2005, an Order and Judgment were entered together whereby the District Court concluded that Defendants’ amended proposed rules were consistent with constitutional guarantees and provided an adequate remedy in this case. The case was then dismissed. (District Court order June 9, 2005, p. 39)
This appeal will determine whether adults with mental retardation who are “involuntarily confined” or at risk of “involuntary confinement” in an HDC are entitled to pre and post confinement hearings which provide the full panoply of protections guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. This matter is of significant public importance and should be allotted at least 30 minutes for oral argument.
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CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Appellant, Disability Rights Center, Inc., (DRC) submits the following statement: DRC is a federal non-profit corporation. DRC does not have a parent company and no publicly held company owns 10% or more of stock in DRC.
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TABLE OF CONTENTS Summary of case and request for oral argument ................................... i Corporate disclosure statement............................................................iii Table of contents.................................................................................. iv Table of authorities ............................................................................... v Statement of Jurisdiction ...................................................................... 1 Statement of the issue presented for review ......................................... 1 Statement of the case ............................................................................ 1 Statement of facts.................................................................................. 6 Summary of the argument................................................................... 14 Argument and standard of review....................................................... 16 Conclusion .......................................................................................... 41 Certificate of compliance.................................................................... 43 Certificate of Service .......................................................................... 44 Addendum........................................................................................... 45
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CASES

TABLE OF AUTHORITIES

Addington v. Texas, 441 U.S. 418 (1979)........................................... 18 Clark v. Cohen, 794 F.2d 79 (3rd Cir. 1986)....................................... 28 Collins v. Bellinghausen, 253 F.3d 591 (8th Cir. 1998) ...................... 18 Doe by Doe v. Austin, 668 F.Supp. 597 (W.D.Ky. 1986) .................. 38 Doe by Doe v. Austin, 848 F.2d 1386 (C.A. 6, Ky. 1988).................. 38 Falls v. Nesbitt, 966 f.2d. 375 (8th Cir. 1992)..................................... 16 Foucha v. Louisiana, 504 U.S. 71 (1992) .......................................... 27 Goldberg v. Kelly, 397 U.S. 254......................................................... 40 Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1(1979) ................ 29 Hamdi v. Rumsfield, 124 S.Ct. 2633 (2004).................................. 27,29 Mathews v. Eldridge, 424 U.S. 319 (1976) ............... 14,15,16,26,40,41 Morrisey v. Brewer, 408 U.S. 471 (1972) .......................................... 39 Olmstead v. L.C. 527 U.S. 581 (1999)................................................ 24 Parham v. J.R., 442 U.S. 584 (1979)...........1, 5, 14,16, 17,26,29,33,40 Secretary of Pub Welfare of Pa v. Instiutionalized Juveniles, 442 U.S. 640 (year).................................. 17 Smith v. Organization of Foster Families, 431 U.S. 816 (1977)........ 26 United States v. Filker, 972 F.2d 240 (8th Cir. 1992)………………..21

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Case: 05-2979 Page: 7 Date Filed: 04/24/2006
United States v. Williams, 994 F. 2d 1287 (8th cir. 1993)………. 21, 25 Vitek v. Jones, 445 U.S. 480 (1980) ................................................... 18 Wallin v. Minnesota Dep’t of Corrections, 153 F. 3d 681 (8th Cir. 1998)...................................................................................... 26 Washington v. Glucksberg, 521 U.S. 702 (1997) ......................... 15, 27 Youngberg v. Romeo, 457 U.S. 307 (1982) ........................................ 28
Statutes, policies and regulations
28 U.S.C. 1291...................................................................................... 1 28 U.S.C. 1331...................................................................................... 1 28 U.S.C. 1343...................................................................................... 1 42 U.S.C. 1983................................................................................... 1,2 42 U.S.C. 12101(a)(5)......................................................................... 27 Ark. Code Ann. 20-48-205(b) .............................................................. 7 Ark. Code Ann. 20-48-401 et seq.,................................................. 2, 29 Ark. Code Ann. 20-48-402 et seq ......................................................... 3 Ark. Code Ann. 20-48-403(a)............................................................... 6 Ark. Code Ann. 20-48-404(1) .............................................................. 6 Ark. Code Ann. 20-48-404(2) .............................................................. 8 Ark. Code Ann. 20-48-405 ................................................................... 8
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Ark. Code Ann. 20-48-405(a)(7) ........................................................ 34 Ark. Code Ann. 20-48-406(b) .................................................... 8,34,36 Ark. Code Ann. 20-48-406(c).......................................................... 8,31 Ark. Code Ann. 20-48-406(c)(1) ........................................................ 34 Ark. Code Ann. 20-48-406(c)(3) ........................................................ 34 Ark. Code Ann. 20-48-406(c)(4) ........................................................ 35 Ark. Code Ann. 20-48-410 ................................................................. 23 Ark. Code Ann. 20-48-412 ................................................................ 8,9 Ark. Code Ann. 20-48-412(a)............................................................. 35 Ark. Code Ann. 25-10-101(b) .............................................................. 7 Ark. Code Ann. 25-10-102(b)(1)(A) .................................................... 7 Ark. Code Ann. 25-10-102(b)(2)(A) .................................................... 8 Ark. Code Ann. 25-10-104(d)(2).......................................................... 8 Policy manual policy number 1020 .............................................. 2,9,36 Policy manual policy number 1037 ................................................... 2,9 Policy manual policy number 1053 .............................................. 2,9,36 Policy manual policy number1086………………………………2,9,36
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STATEMENT OF JURISDICTION The Disability Rights Center, Inc., and Harve Porter appeal from a final judgment of the United States District Court for the Eastern District of Arkansas, Western Division, Honorable Susan Webber Wright, Judge. The District Court had federal question jurisdiction under 28 U.S.C. §1331, and civil rights jurisdiction under 28 U.S.C. §1343, this action arising under 42 U.S.C. §1983. Final judgment having been entered by the District Court on June 9, 2005, and a timely notice of appeal having been filed on July 1, 2005, this Court has jurisdiction under 28 U.S.C. §1291.
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW A. The District Court erred in applying Parham v. J.R., 442 U.S. 584
(1979) to determine the amount of due process guaranteed Mr. Porter, an adult involuntarily confined by the state at an HDC.
STATEMENT OF THE CASE On October 14, 2003, Plaintiffs Harve Porter and Robert Norman, two adults with mental retardation, and Disability Rights Center, Inc., an organization dedicated to advancing the interests of individuals with mental retardation, filed their complaint against two employees of the ADHS and the members of the Board of DDS in their official capacities. The complaint alleged that Defendants had involuntarily confined Messrs. Porter and
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Norman in an HDC in violation of 42 U.S.C § 1983 and the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Specifically, Plaintiffs Porter and Norman alleged that the state’s admission and discharge procedures for its HDCs set forth in Ark. Code Ann. § 20-48-401 et seq. (Michie 2003 Suppl.) and DDS Director’s Office Policy Manual policy numbers 1020, 1037, 1053 and 1086 are unconstitutional because they do not provide adequate judicial hearings at which persons whose liberty is at stake can contest the state’s effort to institutionalize them. Plaintiffs maintained that such hearings must include the following due process protections: (a) the right to be present; (b) the right to the effective assistance of appointed counsel, if indigent; (c) the right to present evidence in his own behalf; (d) the right to cross-examine witnesses; (e) the right to view any and all petitions and reports in the court file of his case; (f) the right to subpoena witnesses; (g) the right to periodic judicial review; (h) the right to be placed in the least restrictive environment; (i) the right to adequate and timely notice of the above rights. In addition, Plaintiffs maintained that before the state may involuntarily commit them it must prove by clear and convincing evidence that the individual sought to be committed poses a substantial risk of harm to himself
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or others and requires a level of supervision and care that can only be provided by one of the state’s HDCs. B. The District Court’s Resolution of Defendants’ Motion to Dismiss
On February 12, 2004, the District Court granted in part and denied in part Defendants’ motion to dismiss Plaintiffs’ original complaint. In doing so, the District Court rejected most of Defendants’ arguments. First, the District Court concluded that Plaintiffs had alleged an injury in fact and thus, Plaintiffs had standing. The District Court also found the Rooker-Feldman doctrine did not apply because a favorable ruling on Plaintiffs’ constitutional claims would neither reverse nor void the state court decisions appointing guardians for Plaintiffs.
Next, the District Court found that Plaintiffs had alleged “state action” because they claimed that they were confined without a hearing in a state institution against their wishes. The District Court also found that Plaintiffs’ claims for procedural due process were ripe for review and that Plaintiffs had not failed to exhaust any relevant state remedies.
Lastly, the District Court concluded that Younger abstention was unwarranted because nothing in the record indicated that Plaintiffs’ guardianship cases are ongoing judicial proceedings. Plaintiffs were allowed to proceed with their procedural due process claims. Families and
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Friends of Care Facility Residents (“FF/CFR”) and Ellen Sue Gibson’s motion to intervene was granted. Intervenors FF/CFR and Ellen Sue Gibson’s motion to redact names was denied.
After Defendants answered Plaintiffs’ Second Amended Complaint, Plaintiffs conducted discovery, including deposing the Director of DDS, the Alexander HDC (“ALHDC”) Superintendent, Plaintiff Harve Porter’s guardian, and the former Superintendent of the Southeast Arkansas HDC (“SEAHDC”). Sworn statements were also taken from Robert Norman’s guardian and a former social worker at SEAHDC.
Following the close of discovery on July 27, 2004, Plaintiffs filed a Motion for Summary Judgment on both their Due Process and Equal Protection claims. Defendants also filed a Motion for Summary Judgment on July 27, 2004.
By Memorandum Opinion and Order dated November 23, 2004, the District Court granted in part and denied in part Plaintiffs’ and Defendants’ motions for summary judgment. In doing so, the District Court again rejected most of Defendants’ arguments. First the District Court concluded that Defendants’ argument challenging Plaintiffs’ capacity to sue came too late and was waived. Next, the District Court found that Mr. Porter’s placement at the ALHDC amounted to confinement that implicated
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significant liberty interests and invoked the procedural guarantees of the Due Process Clause. Lastly, the District Court concluded that the due process requirements set forth in Parham dictated the minimum procedural requirements for committing mentally retarded adults to state institutions; however, the District Court concluded that Arkansas law fell short in that it did not require the HDC superintendents to discharge residents when they no longer required HDC services and that post-admission review procedures were futile unless the state was charged with an affirmative duty to discharge residents who no longer needed HDC services. The District Court dismissed Plaintiff Robert Norman’s claims and he was dismissed as a party to this action. Plaintiffs’ equal protection claim was dismissed with prejudice. C. The District Court’s Resolution of Plaintiffs’ and Defendants’
Summary Judgment Motions On July 27, 2004, Plaintiffs filed a Motion for Summary Judgment on both their Due Process and Equal Protection claims. Defendants also filed a Motion for Summary Judgment on July 27, 2004. On June 9, 2005, an Order and Judgment were entered together whereby this Court concluded that Defendants’ amended proposed rules (District court order appealed brief p. 39) were consistent with constitutional guarantees and provided an adequate remedy in this case. Defendants were
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ordered to implement, with all possible speed, the proposed DDS HDC Admission and Discharge Rules submitted February 23, 2005, and the case was dismissed.
STATEMENT OF FACTS
The issues involved in this appeal are a result of the State of Arkansas’ failure to ensure people with mental retardation who are involuntarily confined or at risk of involuntary confinement in a stateoperated HDC, receive the full panoply of protections guaranteed them under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. These are the rights that are due when a person whose liberty is at risk of unlawful deprivation.
The Arkansas Mental Retardation Act provides for the creation and maintenance of HDCs. Ark. Code Ann. § 20-48-403(a). There are six HDCs in Arkansas that provide medical, residential, habilitation and educational services. The HDCs provide confined institutional living for individuals with mental retardation that ranges in severity from individuals who manage their own daily needs and activities of daily living to individuals who are unable to speak and require restraints to prevent them from injuring themselves. Ark. Code Ann. § 20-48-404(1). Plaintiffs seek a ruling that certain provisions of the Arkansas Mental Retardation Act
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governing admission and discharge from HDCs as well as admission and discharge policies of DDS are unconstitutional.
ADHS is the state agency responsible for the coordination and provision of treatment, programming and services to individuals with disabilities throughout Arkansas. As Director of ADHS, Kurt Knickrehm is the Director of the ADHS and is appointed by and serves at the pleasure of the Governor. Ark. Code Ann. § 25-10-101(b). As Director of ADHS, Defendant Knickrehm is required to exercise his authority to direct, control, and supervise the DDS, the Division of Medical Services (“DMS”), the Division of Mental Health Services (“DMHS”) and all other divisions set forth in said statute. Ark. Code Ann. § 25-10-102(b)(1)(A).
Defendant James C. Green is the Director of DDS and is ultimately responsible for the provision and coordination of all services to Plaintiffs by authority delegated to him by the Board. The Board is authorized to make regulations concerning the admission, discharge, care, custody, placement, training and discipline of individuals receiving developmental disabilities services in the human development centers. Ark. Code Ann. § 20-48-205(b).
a. Statutory Procedures In order to be admitted to an HDC, a parent or guardian of a mentally defective [sic] person submits a petition to the Board requesting admission
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for mentally defective [sic] person. Ark. Code Ann. § 20-48-405. DDS is responsible for the provision of treatment, programming and services provided to individuals with developmental disabilities by both community programs and HDCs throughout the State of Arkansas. Ark. Code Ann. § 2510-104(d)(2). The HDCs are under control of the Board. Ark. Code Ann. § 25-10-102(b)(2)(A).
The petition submitted to the Board must state whether the parent or guardian wants admission to be a voluntary admission or a commitment. Ark. Code Ann. § 20-48-405. After receiving the petition for admission, the Board conducts an investigation to determine the mental status and condition of the individual using standard psychological and physical examination tests. See id. § 20-48-404(2). After the investigation, the Board may decide that the individual is incapable of managing his or her affairs and requires the special care provided by the center and may permit voluntary admission of the individual without any court procedure. id. § 20-48-406(b). The voluntarily admitted individual can only be withdrawn from the center by an application made by the parent or guardian of the individual who has legal custody. id. § 20-48-412.
On the other hand, the Board may determine that the individual be admitted to the center by legal commitment. id. § 20-48-406(c). In this
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instance, the Board files a petition for commitment with the probate court of the county in which the individual resides. A hearing is held to determine whether the individual should be committed to a center. Once admitted through these proceedings, an individual may not be discharged until, in the judgment of the Board and center superintendent, his or her condition validates the discharge. id. § 20-48-412.
b. Administrative Procedures Defendants have supplemented statutory procedures regarding admission and discharge to the HDCs through the adoption of certain policies and procedures. For example, Administrative Policy #1020 contained in the DDS Director’s Office Policy Manual (“DDS Manual”) sets out the procedure by which an individual requests services from the DDS, the state agency responsible for providing services to qualified Arkansas citizens with developmental disabilities. Administrative policy # 1037 in the DDS Manual addresses “HDC therapeutic/trial leaves”; Administrative policy #1053 “establishes the discharge process and establishes guidelines for discharge of individuals from the HDCs operated by DDS”; and, Administrative policy # 1086 “establishes the referral and placement procedures for services from the HDCs.” Under policy # 1086 the interdisciplinary team determines if admission to an HDC is appropriate for
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that individual. (Nan Craft depo. p. 16.6, appendix, pg. 106). The team consists of psychologists, social workers, residential services, medical services, and other professionals in those areas. (Hancock depo. p. 14.12, appendix p. 130). All members of the team are employees or work for the HDCs. (Nancy Craft depo. p.18.15, appendix p. 107).
c. Plaintiff Porter Mr. Porter is a forty-nine year old individual with moderate mental retardation and developmental disabilities who is currently involuntarily confined at the ALHDC. He has been involuntarily confined in various HDCs for several years and has never been granted a judicial hearing to determine whether he should be forced to live his life in an institutional setting in the custody of the State of Arkansas. On numerous occasions, Mr. Porter has stated to HDC and DRC staff that he wishes to leave the HDC, but has not been permitted to do so (Boyd Hancock depo. p.15.4 appendix p.131 and Affidavit of Griffin J. Stockley, appendix pgs. 135-137). The history of Mr. Porter’s involuntary confinement is rather long. On April 3, 1987, Booneville Human Development Center (“BHDC”) first took custody of Mr. Porter on a “respite” admission but changed his status to a “regular” admission later that month.
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On June 4, 1987, BHDC released Mr. Porter to his family and he was formally discharged on June 23, 1987. On December 2, 1994, Ellen Sue Gibson, Mr. Porter’s mother, filed a Petition for Appointment of Guardian of the Person and Estate of Harve Porter. (In the Matter of Harve Edward Porter, an Incapacitated Person, Polk County Probate #G 94-27). An order appointing Ms. Gibson guardian of the person and estate of Mr. Porter was issued on February 22, 1995. (In the Matter of Harve Edward Porter, an Incapacitated Person, Polk County Probate #G 94-27).
The SEAHDC took custody of Mr. Porter on March 30, 1998, on a “respite” admission requested by his guardian. AHDC then took custody of Mr. Porter for diagnosis and evaluation on May 6, 1998. SEAHDC regained custody of Mr. Porter on May 13, 1998, for yet another “respite” admission, again at the request of his guardian. His status then changed on May 28, 1998, to a “regular” admission.
Mr. Porter was allegedly the victim of an incident of abuse at SEAHDC on or about September 8, 2003, that resulted in significant bruises and scratches on his back. An internal investigation conducted by SEAHDC staff found that the injuries were caused by his bed controls, although a physician’s report dated September 18, 2003, stated, “[s]uspicious for abuse, but uncertain of what may have caused this.”
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Ms. Gibson testified that Mr. Porter requested a transfer to AHDC because he alleged that while at SEAHDC he was hit with a rod by Leslie Law, a SEAHDC employee, leaving stripes across his back (Ellen Sue Gibson depo. p. 13, appendix p.124). In response to this allegation, Ellen Sue Gibson contacted Adult Protective Services. (Ellen Sue Gibson depo. p. 13, appendix p. 124). Adult Protective Services conducted a surprise investigation in response to the allegation and found some discrepancies at SEAHDC regarding the alleged incident (Plaintiffs’ Exhibit 8, Ellen Sue Gibson depo. p. 13, appendix p. 124).
d. Plaintiff Robert Norman Mr. Norman is a forty-five year old individual with mild mental retardation who also has a mental illness. On August 2, 1999, Mr. Norman, who had been charged with arson, was committed to the “Arkansas State Hospital or other suitable facility” by the Honorable John B. Plegge to undergo a mental health evaluation. (State of Arkansas v. Robert Norman, Pul. Cir. #98-4532). SEAHDC took custody of Robert Norman on a “respite” admission on or about August 3, 1999. Mr. Norman’s status was changed on or about September 22, 1999, at SEAHDC to a “regular” admission. Judge Plegge then entered an order on January 7, 2000, of acquittal of Mr. Norman by reason of mental disease or defect and
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committed him to SEAHDC. On February 23, 2000, the Honorable Mary Ann McGowan dismissed an Act 911 action against Mr. Norman pending in probate court, finding that insofar as Mr. Norman had been found not to be able to participate in his defense of the charge of arson, that a “final order could not have been entered in his criminal case until such time as Respondent was found fit to proceed.” (In the Matter of Robert Norman, Pul. Probate # PCV 2000-281).
Charlie Harris sought guardianship over Mr. Norman at the request of staff at SEAHDC in the spring of 2000. (Sworn Statement of Charlie Harris, p. 10, appendix p. 140). An attorney for the ADHS filed a guardianship petition in Bradley County Probate Court on April 25, 2000, seeking a permanent limited guardianship for Charlie Harris over Robert Norman “for the purpose of consenting to non-emergency medical treatment, placement and programming that are in Respondent’s best interest.” (In the Matter of Robert Norman, an alleged Incapacitated Person, Bradley Probate # GD2000-10-1). No hearing was held (Sworn Statement of Charlie Harris, p. 10.17, appendix p. 140) and on August 14, 2000, letters of permanent limited guardianship over Robert Norman were issued to Charlie Harris.
Plaintiff Norman was involuntarily confined at SEAHDC from August 14, 2000, until on or about January 15, 2004, when he was moved
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into a community placement at Friendship Community Care, Inc., Russellville, Arkansas, where he presently resides. While he was confined at SEAHDC, Robert Norman stated to employees of the Disability Rights Center that he wished to leave the facility. (Affidavit of Griffin J. Stockley, appendix pgs. 135-137). However, he was not permitted to leave until approximately three months after this action was filed. The District Court, by Memorandum Opinion and Order dated November 23, 2004, dismissed Plaintiff Robert Norman’s claims and he was dismissed as a party to this action.
SUMMARY OF THE ARGUMENT This case will determine the process guaranteed individuals with developmental disabilities prior to being involuntarily confined in a stateoperated institution. Mr. Porter is an adult. The District Court failed to treat Mr. Porter as an adult and insisted on misapplying a case involving children to the present case. Parham v. J.R., 442 U.S. 584 (1979) The District Court found that Mr. Porter’s placement at the AHDC amounts to confinement that implicates significant liberty interests and invokes the procedural guarantees of the Due Process Clause. However, in applying the test in Mathews v. Eldridge, 424 U.S. 319 (1976), the District Court misapplied Parham in determining the amount of due process Mr.
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Porter is owed. Because of the District Court’s failure to acknowledge and treat Mr. Porter as an adult, the process the District Court determined appropriate does nothing to ensure Mr. Porter’s liberty interest is protected.
The parties agree that the balancing test set forth in Mathews governs the Court’s inquiry as to whether the state’s procedures comport with due process requirements. The Mathews test requires consideration of three factors: One, the private interest that will be affected by the official action; two, the risk of an erroneous deprivation of such interest through the procedures used, and the probative value, if any, of additional or substitute procedural safeguards; and three, the government’s interest.
The fundamental right at stake in this case is freedom. Therefore, the private interest affected is Mr. Porter’s right to be free from unnecessary confinement. The risk of erroneous deprivation of this interest is high because the state fails to provide a scintilla of protection against the unnecessary confinement of individuals to HDCs.
Rights recognized as “fundamental” by the Court, such as liberty, impose upon the judiciary a special responsibility: to scrutinize strictly any legislation or state policy that circumscribes rights recognized as fundamental and to determine whether any limitations placed on these rights are justified by a compelling state interest. Washington v. Glucksberg, 521
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Case: 05-2979 Page: 24 Date Filed: 04/24/2006
U.S. 702, 767 (1997). The necessary justification for the state’s failure to provide adequate due process procedures for admitting individuals into the HDCs is lacking. The state’s interest in placing individuals in HDCs is outweighed by the individual’s interest in liberty.
The District Court erred in its interpretation of Mathews when it applied Parham v. J.R., and thus erred in determining that Mr. Porter was not guaranteed a judicial proceeding prior to being involuntarily confined by the state. ARGUMENT
I. The District Court erred in applying Parham v. J.R., 442 U.S. 584 (1979) to determine the amount of due process guaranteed Mr. Porter, an adult involuntarily confined by the state at an HDC.
The District Court’s holding that Mr. Porter, an adult, must only be afforded the same due process as children with mental illness as determined by the United States Supreme Court, in Parham is a question of law to be reviewed de novo. Falls v. Nesbitt, 966 F.2d 375, 377 (8th Cir. 1992).
Appellants agree with the finding of the District Court that “H.P.’s placement at the AHDC amounts to confinement that implicates a significant liberty interest and invokes the procedural guarantees of the Due Process Clause.” However, the District Court erred in basing its decision on Parham v. J.R. to determine what due process should be required before involuntarily
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confining Mr. Porter (an adult) in a state operated HDC. The Supreme Court’s decision in Parham v. J.R., is distinguishable from the present case in that Parham involved the confinement of children and not adults (emphasis added) as in the present case. In the District Court’s memorandum and opinion order, the District Court stated:
“Although Parham concerned the civil commitment of mentally ill children by parents or guardians, in a companion case decided the same day, the Court held that the procedural requirements set forth in Parham apply equally to the civil commitment of mentally retarded minors. Secretary of Pub. Welfare of Pa. v. Institutioanlized Juveniles, 442 U.S. 640 (1979). Likewise, this Court concludes that the due process requirements set forth in Parham dictate the minimum procedural requirements for committing mentally retarded adults to state institutions. (adden. pgs. 14-15)
The District Court acknowledged the distinction between both Parham v. J.R., and Secretary of Pub Welfare of Pa v. Institutionalized Juveniles, and the present case, yet failed to offer a rationale as to why the District Court held Mr. Porter, an adult with mental retardation, is implicitly comparable to the children involved in these cases.
The District Court’s error is further compounded by its suggestion that adults with mental retardation are somehow entitled to less due process than adults with “average” intelligence. This suggestion perpetuates the idea that adults with mental retardation are “less than” in the eyes of the law.
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a. The District Court was correct in its determination that Arkansas law denies due process by not requiring HDC Superintendents to discharge residents when they no longer require HDC services.
Confinement in an institution, as in the present case, is a deprivation of liberty protected by the Due Process Clause of the Fourteenth Amendment. “It is undisputed that civil commitment for any purpose (emphasis added) constitutes a significant deprivation of liberty that requires due process protection.” Addington v. Texas, 441 U.S. 418, 425 (1979)("clear and convincing" standard of proof is constitutionally required in a civil proceeding to commit an individual involuntarily for an indefinite period to a state mental hospital.) See also, Vitek v. Jones, 445 U.S. 480, 491-92 (1980); Collins v. Bellinghausen, 253 F.3d 591, 596 (8th Cir. 1998)(Case involving an individual summarily removed from a nursing home and subjected to involuntary commitment procedures. The Court noted, “it was clearly established that liberty from bodily restraint is protected by the Due Process Clause of the Fourteenth Amendment. This liberty interest is implicated in involuntary commitment proceedings.”).
This same liberty interest was implicated when Mr Porter was involuntarily confined to SEACHDC on March 30, 1998, without being afforded procedural due process.
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Case: 05-2979 Page: 27 Date Filed: 04/24/2006
Mr. Porter was admitted to the SEAHDC upon application by his guardian because, “[i]n the majority of cases, the admissions application is made by the guardian.” (Craft depo. p. 19.10, appendix pg 108). “Provision of service [at an HDC] is predicated on what the Interdisciplinary Team prescribes, providing you have consent from the legal guardian, if, indeed there is one.” (Green depo. p.37.15, appendix p. 115).
After an application for admission is submitted to the field caseworker, the Interdisciplinary Team performs an evaluation. (Hancock depo. p. 13.2, appendix p. 129). “Once the team makes their recommendation, that recommendation is submitted to the center to see if the individual is appropriate for that center.” (Hancock depo. p. 14.3, appendix p. 130). Although the HDC superintendent considers the team’s recommendation, (Hancock depo. p. 14.9, appendix p. 130), [t]he superintendent makes the final decision whether to admit. (Hancock depo. p. 14.9, appendix p. 130). (Green depo. p. 24 or 25, appendix p. 110).
Once admitted to an HDC, residents are not discharged unless a guardian or family member requests discharge. In essence, then, the residents’ liberty may be (and often is) permanently deprived. Even when, as here, residents are adamant about leaving the HDC, the decision as to whether they are allowed to leave the HDC depends on “what the treatment
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Case: 05-2979 Page: 28 Date Filed: 04/24/2006
team thought was best and . . . ultimately, what the guardian, how the guardian participated in the team process.” (Green depo. p. 35.6, appendix p. 114). “Certainly anyone can request to be discharged from an HDC.” (Plaintiffs’ Exhibit 6, Green depo. p.35.12, appendix p. 114). However, “[t]hey are not always discharged.” (Plaintiffs’ Exhibit 6, Green depo. p.35.14, appendix p. 114).
Therefore, if the individual says that he or she no longer wants to come to a particular center, it is up to their guardian - - the very person who sought the commitment – to decide whether to accede to the resident’s wishes. (Hancock depo. p. 14.17, appendix p. 130).
In this case, as Boyd Hancock, former superintendent of SEAHDC stated, “It was normal for Harve Porter to tell me he wanted to leave the HDC.” (Hancock depo. p. 15.8, appendix p. 131). However, “[t]he guardian is the only one who can provide consent or withhold consent.” (Green depo p. 37.23, appendix p. 115). FFCFR/Ellen Sue Gibson take issue with the fact that DRC did not include as an exhibit to their Motion for Summary Judgment an additional page from Mr. Green’s deposition. However, FFCFR/Ellen Sue Gibson had ample opportunity to make that very point to the District Court and provide whatever supporting documents they felt the District Court needed to make its decision. FFCFR/Ellen Sue Gibson failed
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Case: 05-2979 Page: 29 Date Filed: 04/24/2006
to provide any additional information to the District Court. Instead, Intervenors FF/CFR and Ellen Sue Gibson, “accepted, endorsed, and adopted in its entirety the separate Defendants’ Response to Plaintiffs’ Motion for Summary Judgment”. (Intervenor/Cross-appellants brief p. 33) FFCFR/Ellen Sue Gibson openly admit they were aware that Appellees did not include that additional information from Mr. Green’s deposition. FFCFR/Ellen Sue Gibson do not get to provide new allegations/objections here where they failed to preserve the issue for appeal at the district court. “To properly preserve an issue for appeal, a timely objection must be made to the trial court which clearly provides the grounds for objection so that the trial court has the opportunity to prevent or correct the error.” United States v. Williams, 994 F. 2d 1287, 1294 (8th Cir. 1993). “We will not review an issue not properly preserved, unless a gross miscarriage of justice would otherwise result.” United States v. Filker, 972 F.2d 240, 242 (8th Cir. 1992).
FFCFR/Ellen Sue Gibson appear to believe that had this document been provided to the District Court the Court’s decision would have been different. Appellants are curious as to why if FFCFR/Ellen Sue Gibson thought this information was so important they did not provide it at the proper time, which was the District Court.
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In addition, FFCFR/Ellen Sue Gibson state through out their brief that the District Court was incorrect in finding that the parent/guardian have the ultimate power to have their ward discharged from the HDCs. Yet in their brief they state, “HEP’s mother, Ellen Sue Gibson, removed him from the Booneville Human Development Center, against medical advice and the recommendations of the interdisciplinary team, after he had an altercation with another resident which resulted in injuries to him”. (FFCFR/Ellen Sue Gibson brief p. 12)
This fact coupled with the testimony of Charlie Green, and Boyd Hancock in their deposition indicates the district court was correct in determining that the guardian has the ultimate authority and can override doctors, IDT members, and even the HDC superintendent. Here, the HDC had no choice but to release Harve Porter once his guardian insisted. This shows the guardian’s authority may even extend further than the District Court’s finding because here there were medical reasons as to why Harve Porter should not leave the HDC and yet Mrs. Gibson still had the sole authority to remove Harve from the institutional setting in which he was confined.
Finally, to underscore the often permanent and involuntary nature of confinement at the HDCs, should an individual leave the institution without
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Case: 05-2979 Page: 31 Date Filed: 04/24/2006
permission, law enforcement “shall, upon the written request of the superintendent, return to the human development center or hold in custody an individual who has escaped or who has been temporarily released from the center under a permit to visit.” Ark. Code Ann. § 20-48-410. “If they are gone for a significant length of time, you contact the Sheriff’s Office so that they can help you look.” (Green depo. p.32, appendix p. 113 ). FFCFR/Ellen Sue Gibson’ attempt to minimize this fact in their brief which states, “If someone leaves a human development center without permission of staff or their guardian, staff follow them and, if necessary, attempt to calm them and persuade them to return to the center”. (Intervenor/CrossAppellants brief p. 15). In truth, the HDC staff is to contact the police, “who shall….return or hold in custody the individual…who escaped or who has been gone for a long period of time”. With the ability to have the escapee picked up and returned, there is no need to have enclosure walls, fences, or other barriers in order for an individual to be “involuntarily confined” in an HDC.
During the individual’s confinement, the “HDC assumes responsibility for. . . making sure that they are in a safe environment and that they are provided care.” (Green depo. p.43.9, appendix p. 116 ). However, “[c]onfinement in an institution severely diminishes the everyday life
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Case: 05-2979 Page: 32 Date Filed: 04/24/2006
activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Olmstead v. L.C. 527 U.S. 581, at 601 (1999).
In sum, the District Court had ample evidence and was correct in determining that Arkansas law denies due process by not requiring HDC superintendents to discharge residents when they no longer require HDC services and that the guardian does have “sole authority” to decide whether an individual remains involuntarily confined in an institution. II. Mr. Porter is entitled to a pre-deprivation judicial hearing
because his involuntary confinement in an HDC by the state constitutes an infringement on his liberty interest protected from arbitrary deprivation by the Due Process Clause of the Fourteenth Amendment.
Plaintiff’s involuntary commitment constitutes the deprivation of a liberty interest, and thus triggers the procedural protections of the Due Process Clause of the Fourteenth Amendment. The District Court correctly agreed with Plaintiffs and determined that Mr. Porter’s “placement at the AHDC amounts to confinement that implicates significant liberty interests and invokes the procedural guarantees of the Due Process Clause”. (adden. p. 11)
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Case: 05-2979 Page: 33 Date Filed: 04/24/2006
a. Plaintiffs are entitled to the full panoply of procedural due process protections under the Mathews v. Eldridge balancing test.
Once it is determined that an individual possesses a liberty interest, which has been subjected to deprivation (as shown immediately above), one further question remains: How much procedural process is due? Appellees/Cross-Appellants fail to amply address this issue in their brief. Instead Appellees/Cross-Appellants spend an enormous amount of time discussing the laws in other states. Acknowledged by the Appellees/CrossAppellants the District Court made it clear that the state laws that Appeellees/Cross Appellants now cite this Court to were not considered in the District Court’s decision regarding Harve Porter/DRC Due Process claims. Because FFCFR/Ellen Sue Gibson adopted the separate defendants response to Appellants Motion for Summary Judgment, they fail to make proper objections or argument to the trial court in order to preserve this issue in regards to the Harve Porter/DRCss Due Process claims. United States v. Williams, 994 F.2d 1287, 1294 (8th Cir. 1993) The chart of State laws FFCFR/Ellen Sue Gibson discuss were used in support of Harve Porter/DRCs Equal Protection claim, which is not in front of this Court. Therefore, Harve Porter/DRC feel that chart is without relevance in deciding
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Case: 05-2979 Page: 34 Date Filed: 04/24/2006
what Due Process is required before involuntarily confining an individual with a developmental disability to an institution.
In answering that question, courts are required to apply the balancing test first enunciated in Mathews v. Eldridge, 424 U.S. 319 (1976), which all parties and the District Court agree is applicable in this case. That test has perhaps been best described in Parham v. J. R.
Assuming the existence of a protectible property or liberty interest, the Court has required a balancing of a number of factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id. at 660 (quoting Mathews, 424 U.S. at 335 and Smith v. Organization of Foster Families, 431 U.S. 816, 848-849 (1977).
Thus, the interests of Mr. Porter must be weighed against the interests of the state. See also, Wallin v. Minnesota Dep’t of Corrections, 153 F.3d 681, 690 (8th Cir. 1998). In order to fully address the issue of what process is guaranteed Mr. Porter, it is necessary to address all three parts of the test in Mathews.
b. Mr. Porter’s freedom -- the private interest affected by Defendants’ action -- is of vital importance.
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Case: 05-2979 Page: 35 Date Filed: 04/24/2006
There is no greater private interest than freedom. See Hamdi v. Rumsfield, 124 S.Ct. 2633 (2004). Mr. Porter’s fundamental liberty interest is curtailed by Arkansas’ statutes and policies. While the mass of Americans live freely with the right to come and go as it chooses, "individuals with disabilities continually encounter various forms of discrimination, including ... segregation." 42 U.S.C. § 12101(a)(5).
Mr. Porter is segregated from the rest of society by his involuntary confinement in an HDC with the limited possibility of regaining his freedom. As the Supreme Court has noted, “[f]reedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary government action. Id. at 2646. The Court explicitly noted, “We have always been careful not to ‘minimize’ the importance and fundamental nature’ of the individual’s right to liberty.” Id. at 2546 (quoting Foucha v. Louisiana, 504 U.S. 71, 80 (1992)).
Rights recognized as “fundamental” by the Court, such as liberty, impose upon the judiciary a special responsibility. This duty is to scrutinize strictly any legislation or state policy that circumscribes rights recognized as fundamental and to determine whether any limitations placed on these rights are justified by a compelling state interest. Washington v. Glucksberg, 521 U.S. 702, 767 (1997). The necessary justification for a failure to provide
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Case: 05-2979 Page: 36 Date Filed: 04/24/2006
procedures for admitting individuals into the HDCs is lacking. The state’s interest in placing individuals in HDCs is outweighed by the individual’s interest in liberty.
Two federal circuits have had occasion to consider the procedural due process rights of people with mental retardation who were involuntarily committed to institutions. In Clark v Cohen, 794 F.2d 79 (3rd Cir. 1986), the Third Circuit upheld a district court’s ruling that a woman with mental retardation who had been confined for over twenty-eight years without a hearing “had been deprived of her liberty to be free from commitment without due process.” The court found that “due process required periodic reviews of her continuing need for institutionalization.” Id. at 86. Similarly, the process that relegates individuals such as Mr. Porter to an HDC violates their procedural due process rights. Once confined within the HDCs, individuals can only be discharged with the permission of their guardian.
In Youngberg, the Court specifically considered the liberty interests of adults with mental retardation confined by the state in an institution. Youngberg, 457 U.S. at 316. Although the Plaintiff there did not challenge the procedures that led to his confinement, the Court characterized his claim as “a right to freedom from bodily restraint.” Id. at 316 and noted that “[i]n other contexts, the existence of such an interest is clear in the prior decisions
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of this Court. Indeed, ‘[l]iberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental action.’" Id. (quoting Greenholtz v. Nebraska Penal Inmates, 442, U.S. 1, 18 (1979)). “This interest survives criminal conviction and incarceration. Similarly, it must also survive involuntary commitment.” Id. at 316.
Although the District Court erred in applying Parham v J.R., to adults, it correctly surmised that when looking at confinement of children the “private interest at stake is a ward or child’s interest in not being confined unnecessarily”. (adden. p.12). There can be no doubt that the Mr. Porter’s freedom – which is the liberty interest at stake in this case – is of paramount importance. It is, indeed the most elemental of all freedoms protected by the Constitution. Hamdi at 2646.
c. The risk of an erroneous deprivation of the vital interest of freedom from bodily restraint is high.
Arkansas law and policies regarding HDC admission and discharge present an enormous risk of erroneous deprivation of the fundamental right to freedom from bodily restraint. That is so because, instead of relying on the traditional judicial due process protections that are the hallmark of the Due Process Clause, Arkansas’ current system perpetuates the fallacy of
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“voluntary” confinement and relies upon the discretion of individuals – guardians and family members -- whose interests often conflict with the interests and the stated desires of the institutionalized persons whose freedom hinges upon their guardian’s decisions.
Unfortunately, the District Court continued to perpetuate the fallacy of “voluntary” confinement by holding, “the State’s initial admission procedures for the voluntary admission of adults to HDCs comport with due process requirements, but the current post-admission procedures fail to provide the process due”. Plaintiffs cannot reconcile the idea that procedures for “voluntary” admission can comport with due process when the District Court stated unequivocally “Harve Porter’s placement at the AHDC amounts to confinement”. (adden. p. 11).
In making that determination the District Court owed Mr. Porter the right to a judicial hearing prior to “confinement” in an HDC.
(i) Conflicting Interests Though it may be comforting to assume that family members and legal guardians have only the best interest of their wards at heart, the District Court conceded “parents and guardians sometimes act against the best interest of their children and wards. (adden. p. 12)
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Placing an individual in an HDC also relieves the family member or legal guardian of a financial burden because, “[f]or the great majority of all of the HDCs, Medicaid is the primary payer.” (Green depo. p.31.22, appendix p. 112). Thus, in many instances, family members or legal guardians are persuaded that care in a HDC is the only appropriate placement for their ward.
Additionally, the interests of people who are required to spend their lives in an institution often conflict with the interests of those responsible for admitting them there or discharging them. Allowing HDC employees, no matter how well-intended or well-qualified, to make the administrative decision, along with the guardian, of whether individuals will be confined in an institution for the rest of their lives, exponentially increases the risk of an erroneous decision.
It can be assumed that a significant percentage of the people working in the six communities in Arkansas where the HDCs are located make their living at the institutions. To not acknowledge that employees realize that they benefit from thriving institutions in these communities is disingenuous. Given the relative lack of standards for confining individuals with mental retardation in institutions in light of what is at stake for the individual, it is
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inappropriate for HDC employees to be called upon to apply the standards, as is the case under Arkansas law and ADHS policies.
The District Court failed to address Plaintiffs’ concerns that individuals who are making the decisions on whether an individual should remain in an HDC, and also rely on the HDC for employment. If the District Court had correctly found such conflict existed, the need for an independent judicial review would be heightened.
For all these reasons, the risk of the erroneous deprivation of the interest in freedom from bodily restraint is very high. The risk results because, by trumpeting of the inherently flawed notion of “voluntary” confinement of adults with mental retardation, the state is able to circumvent all due process procedures that would determine whether such adults should truly be deprived of their freedom. Moreover, the injudicious reliance upon decision makers – guardians and HDC employees —whose circumstances invite conflict with the best interests of the ward, places adults with mental retardation at severe risk of unconstitutional loss of liberty.
d. The probable value of the proposed substitute judicial procedures is substantial in light of the importance of the implicated right and the constitutional inadequacy of the current procedures.
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The value of the proposed judicial procedures is substantial in light of the fundamental right of freedom at issue in this case. The District Court minimized the importance of this right by equating it to a relationship between a parent and child. The District Court stated “The Court (in Parham) contemplated that judicial hearings and other procedural barriers could discourage parents from seeking needed medical help for their children. Also, the Court recognized that an adversarial confrontation could adversely affect the relationship between parent and child”. (adden. p. 30).
While it is true that access to medical care and familial relationships are important, to suggest that these concerns outweigh an adults right to be free from bodily restraint is misleading at best and dangerous at worst. Plainly stated, Mr. Porter is not a child. In any other context, the potential deprivation of an adult’s liberty without judicial review would be unfathomable. In fact, such pre-deprivation review is a tenet of our judicial system that should not be compromised by virtue of the fact that Mr. Porter has a developmental disability.
The current admission and discharge procedures for Arkansas’ HDCs have little, if any, prospect of preventing erroneous deprivations of liberty. Ark. Code Ann. § 20-48-401 et seq. creates the statutory framework for admission and discharge to and from the HDC’s. In theory, the Arkansas
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statutes contemplate alternative procedures for admission to an HDC: “voluntary” admissions or legal commitment. “A parent or guardian” files a verified petition with the Board, which states, among other things, “whether the petitioner desires that the individual be admitted voluntarily or by commitment.” Ark. Code Ann. § 20-48-405(a)(7).
Thereafter, it is within the unfettered and unreviewable discretion of the Board as to how an individual enters an HDC: “[t]he board may permit the voluntary admission of the individual to a center for such period of time as the board may deem necessary for the proper care, training, and education of the individual. The admission shall be by action of the board without the necessity of any court procedure.” Ark. Code Ann. § 20-48-406(b).
The Board “may determine that the individual should be admitted to a center by legal commitment only. In that event, the board shall file the petition for admission with the probate court of the county in which the individual resides.” Ark. Code Ann. § 20-48-406(c)(1). Statutory procedures to be followed in “court commitments” contain only the following requirements: The Court in its discretion “may appoint one (1) or two (2) reputable physicians to examine the individual and report to the court the mental status of the individual…or it may adopt the report of the physician appointed by the board…” Ark. Code Ann. § 20-48-406(c )(3).
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At the hearing on the petition, the court “shall determine whether or not the individual should be committed to a center for care, treatment, and training and shall enter an appropriate order in accordance with its determination.” Ark. Code Ann. § 20-48-406(c)(4).
Because the statutory procedure set forth in Ark. Code Ann. § 20-48406 is not mandatory, it in no way serves to reduce the risk of an erroneous discharge or admission to an HDC. Even if it were mandatory, the statute simply requires a probate judge to hold a hearing. Ark. Code Ann. § 20-48406. None of the other requirements in hearings associated with due process- adequate and timely notice and an opportunity to be heard, the right to present evidence and to challenge and cross-examine adverse evidence and witnesses, the appointment of counsel for those who are indigent, appropriate standards of commitment and burden of proof – are mentioned in the statute.
Statutory requirements relating to discharge from an HDC are even more at odds with fundamental notions of due process - indeed, they are nearly non-existent. An individual admitted involuntarily to an HDC, “may be withdrawn from the center at any time upon the application of the parent or guardian who has legal custody of the individual” upon “thirty (30) days notice in writing….” Ark. Code. Ann. § 20-48-412(a).
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For individuals who were committed through probate court, they may only be discharged if in the “judgment of the board and the superintendent, his or her condition justifies the discharge.” Ark. Code. Ann. § 20-48406(b). Plainly, once admitted, adults with mental retardation, such as Mr. Porter, are essentially incarcerated for life, unless released at the discretion of the very persons who are holding them, without any access to judicial process and the fundamental due process guarantees that judicial process ordinarily entails.
Administrative policy #1020, #1053 and 1086 create the administrative framework for admission and discharge. None of Arkansas’ statutes or policies contains a mandatory hearing process that applies to admission or discharge nor do they even provide an individual the right to disagree with the initial placement or discharge.
Appellees/Cross-Appellants argue, “citizens who object to their admission to the state’s development centers may also exercise their rights to petition, hearing, and appeal under the Arkansas Administrative Procedure Act”. (Appellees/Cross-Appellants brief p. 41) The District Court, in deciding whether the guardianship law in Arkansas provides ample protections for an individual with developmental disabilities at risk of involuntary confinement stated:
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“Accepting this assertion as fact, the Court does not agree that it (Ark. Guardianship statutes) lessens the need for State-initiated, periodic assessment of the need for continued institutional care. First, incapacitated individuals incapable of looking out for their own interests must depend on others to take the initiative and file petitions on their behalf. It is unreasonable to expect that the DRC can provide such services for all HDC residents.” (Clarification given) (Adden. Memorandum opinion and order (11-23-04, p. 15-16.)
Applying the District Courts reasoning to the Arkansas Administrative
Procedures Act, Harve Porter/DRCs are convinced that the District Court
would have correctly found that the Arkansas Administrative Procedures
Act, just as Arkansas Guardianship Statues, would require, “incapacitated
individuals incapable of looking out for their own interest must depend on
others to take the initiative and file petitions on their behalf. It is
unreasonable to expect that the DRC can provide such services for all HDC
residents”. (Adden. Memorandum opinion and order 11-24-04, p. 15-16).
For these reasons, the value of the judicial procedures for admission
and discharge to the HDCs is substantial, particularly in light of the massive
curtailment of liberty that institutionalization entails.
e. The fiscal and administrative costs that a judicial hearing would impose are outweighed by the protection of liberty interests provided by the requested due process safeguards
At no time during his admissions to the HDCs did Mr. Porter have a judicial
hearing to determine whether he should be forced to live his life confined in
a state institution. In determining whether individuals with mental
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retardation must be confined in institutions, most for the rest of their lives, the decision-maker is called upon to rule on a number of factual issues. In Doe by Doe v. Austin, 668 F.Supp. 597, 600 (W.D.Ky. 1986) the district court found that:
…such commitment results in an extreme curtailment of personal liberty. Any decision by the state which results in such a profound deprivation of personal liberty must be accompanied by substantial due process safeguards, particularly where the person who is to be committed may be lacking in the ability to fully protect his or her procedural rights. We therefore hold that mentally retarded persons over eighteen years of age are entitled to a judicial hearing and determination of the propriety of commitment… The district court’s ruling on this issue follows decisions in other cases in which significant liberty interests were at stake and the court required a judicial hearing. To be sure, the Sixth Circuit did not agree with the lower court’s decision in this regard. Although acknowledging that “as a matter of policy, precommitment review by a judicial officer would ensure the most vigorous protection of the mentally retarded, and thus, might be preferable, it has been noted in a variety of situations that due process does not require that the neutral trier of fact be legally trained or a judicial or administrative officer.” Doe by Doe v. Austin, 848 F.2d 1386 at 1393 (C.A. 6, Ky.) (1988). However, the cases cited by the Sixth Circuit do not support that court’s conclusion. The only case that involved personal liberty interests of
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adults cited in Austin, Morrisey v. Brewer, 408 U.S. 471 (1972), involved
the question of what process, if any, an individual was due at a parole
revocation hearing. Morrisey, however, carefully – and properly –
distinguished the liberty interest of an individual already convicted of a
crime with the situation of an individual facing prosecution.
We begin with the proposition that the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a Defendant in such a proceeding does not apply to parole revocations. Parole arises after the end of the criminal prosecution, including imposition of sentence. Supervision is not directly by the court but by an administrative agency, which is sometimes an arm of the court and sometimes of the executive. Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.
Id. at 480
Thus, Morrisey provides no authority for depriving an adult with
mental retardation of a judicial hearing. Plaintiffs’ interest in liberty in this
case, unlike the parole revocation context in Morrissey, cannot be said to be
in any way “conditional” because in Morrisey’s words, the Plaintiffs here
have never been convicted of a crime and instead possess “the absolute
liberty to which every citizen is entitled.”
Other cases cited in Austin, such as Goldberg v Kelly, 397 U.S. 254
(1970)(requiring trial-like administrative hearing prior to welfare benefits
termination), and Parham, 442 U.S. at 607, either do not involve liberty
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interests or, as discussed earlier, involve liberty interests of children. Conversely, the Supreme Court has repeatedly recognized that when a fundamental, unconditional liberty interest is at stake, a judicial hearing is required before that interest may be circumscribed.
The most visible burden on the state would be the cost resulting from the judicial procedures. Concededly, courts have found that, “the constitutionalizing of government procedures suggests that the ultimate additional cost in terms of money and administrative burden would not be insubstantial.” Mathews, 424 U.S. at 347. However, “[f]inancial cost alone is not a controlling weight in determining whether due process requires a particular procedural safeguard prior to some administrative decision.” Id. at 348.
Certainly, the welfare of the state is immeasurably enhanced when the needs of its citizens with disabilities are correctly identified. The cost to the government of implementing due process procedures is not de minimus, but it pales beside the human cost of lives spent in institutions that could beneficially be spent in the community. Presently, thousands of persons with disabilities are well served throughout Arkansas – outside the institutional setting - by responsible community providers, as well as by family members who are supported by the State.
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Case: 05-2979 Page: 49 Date Filed: 04/24/2006
The District Court in its Memorandum Opinion and Order agreed that Mr. Porter is involuntarily confined, but failed to afford Mr. Porter the due process protections that adults are entitled to (prior to involuntary confinement) under the United States Constitution. (adden. p. 11).
Instead, the District Court insisted against law to the contrary, that Mr. Porter is entitled to only those protections afforded to children. In doing so, the District Court failed to acknowledge that Mr. Porter is an adult, and therefore is entitled to the full panoply of rights guaranteed him by the Due Process Clause to the United States Constitution. Mathews v. Eldridge, 424 U.S. 319 (1976).
CONCLUSION
For the forgoing reasons, Mr. Porter is entitled to a pre-deprivation judicial hearing because his involuntary confinement in an HDC by the State constitutes an infringement on his “liberty interest” protected from arbitrary deprivation by the Due Process Clause of the Fourteenth Amendment.
WHERFORE, the Plaintiffs pray this Court reverse the District Court’s decision and order the state to provide a pre and post deprivation judicial hearing.
_________________________
41

Case: 05-2979 Page: 50 Date Filed: 04/24/2006
Dana McClain Arkansas Bar No. 02-028 Disability Rights Center, Inc. 1100 N. University, Ste 201 Little Rock, AR 72207 501-296-1775 Jan C. Baker Adam H. Butler
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Case: 05-2979 Page: 51 Date Filed: 04/24/2006
CERTIFICATE OF COMPLIANCE I hereby certify that this brief was prepared using Microsoft Word 2000 Times New Roman font face in font size 14. The brief, exclusive of the table of contents and table of citations, but including the statement with respect to oral argument, contains 9,128 words. A diskette of the brief is enclosed and identical diskettes have been provided to Mr. Breck Hopkins, Ms. Lori Freno, and Mr. Bill Sherman. The diskettes have been scanned for viruses and determined to be virus-free.
____________________ Dana McClain Arkansas Bar No. 02-028 Disability Rights Center, Inc. 1100 N. University, Ste 201 Little Rock, AR 72207 501-296-1775
43

Case: 05-2979 Page: 52 Date Filed: 04/24/2006
CERTIFICATE OF SERVICE
I hereby certify that a copy of the Plaintiffs’ Appellee brief has been served on the following by certified mail, return receipt requested on the ____ day of April, 2006. Lori Freno, Asst. Attorney General Office of the Attorney General 323 Center Street, Suite 200 Little Rock, AR 72201 Breck Hopkins Arkansas Department of Human Services Office of Chief Counsel P.O. Box 1437, Slot S260 Little Rock, AR 72203-1437 William Sherman 504 Pyramid Place 221 West Second Street Little Rock, AR 72201
________________________ Dana McClain Attorney for Appellants 1100 N. University Ste 201 Little Rock, AR 72207 501-296-1777
44

Case: 05-2979 Page: 53 Date Filed: 04/24/2006
ADDENDUM TABLE OF CONTENTS Items District Court Order Nov. 23, 2004……………………………..1 District Court Order June 9, 2005………………………………20
45

 
 Case: 05-2979 Page: 1 Date Filed: 05/25/2006
No. 05-2978, 05-2979
IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
_____________________________________
H.P. and R.N., by their next friend, Susan Pierce; DISABILITY RIGHTS CENTER, INC
Plaintiffs – Appellants
v.
KURT KNICKREHM, in his official capacity as Director of the Arkansas Department of Human Services; JAMES C. GREEN, Dr., in his official capacity as Director of Developmental Disabilities Services; KAY BARNES; GROVER MILTON EVANS; WESLEY KLUCK; RANDY LANN; SUZANN MCCOMMON; THOMAS DOLISLAGER; LUKE HEFFLEY, in their official capacities as members of the Board of Developmental Disabilities Services;
Defendants – Appellees
FAMILIES AND FRIENDS OF CARE FACILITY RESIDENTS; ELLEN SUE GIBSON
Intervenors – Appellees/ Cross - Appellants _____________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION _____________________________________
THE HONORABLE SUSAN WEBBER WRIGHT UNITED STATES DISTRICT JUDGE
_____________________________________
REPLY BRIEF OF APPELLEES/CROSS-APPELLANTS FAMILIES AND FRIENDS OF CARE FACILITY RESIDENTS;
ELLEN SUE GIBSON _____________________________________
William F. Sherman Attorney at Law 221 West 2nd Street, Suite 504 Little Rock, AR 72201 (501) 372-3148
Counsel for Appellees/Cross-Appellants

Case: 05-2979 Page: 2 Date Filed: 05/25/2006
TABLE OF CONTENTS
TABLE OF CONTENTS.................................................................................. i TABLE OF AUTHORITIES ............................................................................ ii ARGUMENT .................................................................................................... 1
ARKANSAS LAW DID NOT, AS CONCLUDED BY THE DISTRICT COURT, DENY DUE PROCESS BY GIVING PARENTS AND GUARDIANS THE ULTIMATE AUTHORITY ON DISCHARGES FROM THE HUMAN DEVELOPMENT CENTERS .................................................................... 1
1. Cross-Appellee’s have not adequately responded to the argument on cross-appeal ......................................................... 1
2. Cross-Appellants have a valid interest in the issue raised by the Court in its partial grant of the DRC Motion for Summary Judgment ..................................................................... 11
CONCLUSION................................................................................................. 15 CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE
ADDENDUM TO REPLY BRIEF OF CROSS-APPELLANTS
DDS Director’s Policy No. 1053 (Eff. Date: December 1, 1997)................................................................... A-1
DDS Director’s Policy No. 1076 (Eff. Date: July 1, 1996) ............................................................................ A-2
i

Case: 05-2979 Page: 3 Date Filed: 05/25/2006

TABLE OF AUTHORITIES STATUTES: STATE ARKANSAS Ark. Code Ann. § 20-48-412 (a) Ark. Code Ann. § 20-48-412 (b) CASES Addington v. Texas, 441 U.S. 418, 425 (1979) Cafeteria Workers v. McElroy, 367 U.S. 886 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) Heller v. Doe, 509 U.S. 312 (1993) Mathews v. Eldridge, 424 U.S. 319 (1976) Morrissey v. Brewer, 408 U.S. 471 (1972) Parham v. J.R., 442 U.S. 584 (1979) Secretary of Pub. Welfare v. Institutionalized Juveniles,
442 U.S. 640 (1979) Vitek v. Jones, 445 U.S. 480, 491-92 (1980) Collins v. Bellinghausen, 253 F. 3d 591, 596 (8th Cir. 1998) Eldridge v. Weinberger, 361 F. Supp. 520, (W.D. Va., 1973);
aff’d, 493 F. 2d 1230 (4th Cir. 1974) Miller v. Vitek, 437 F. Supp. 569 (D. Neb. 1977)

2 3
8, 9 12
1 10 11, 12 12 10
10 8, 9 8, 10, 11
11-12 8, 9, 10

ii

Case: 05-2979 Page: 4 Date Filed: 05/25/2006

Texas v. Addington, 21 Tex. Sup. J. 19,

557 S.W. 2d 511 (Tex. 1977)

8

RULES, REGULATIONS AND POLICIES:

FEDERAL

Federal Rules of Civil Procedure, Rule 56

1

32 CFR Ch. IV (10-1-03 addition)

Subpart G – Home and Community-based Services

Waiver Requirements §§441.300 – 441.303 and §441.302(d)

7

32 CFR Ch. IV §§ 483.12, 441.302 (d)

5

STATE

DDS Directors Policy No. 1053 (Eff. Date: December 1, 1997)

5

DDS Directors Policy No. 1076 (Eff. Date: July 1, 1996)

6

DDS HDC Admission and Discharge Rules (adapted in response to

2

Court Opinion and Order of 11/23/04)

iii

Case: 05-2979 Page: 5 Date Filed: 05/25/2006
ARGUMENT ARKANSAS LAW DID NOT, AS CONCLUDED BY THE DISTRICT COURT, DENY DUE PROCESS BY GIVING PARENTS AND GUARDIANS THE ULTIMATE AUTHORITY ON DISCHARGES FROM THE HUMAN DEVELOPMENT CENTERS 1. Cross-Appellees have not adequately responded to the argument on cross-appeal. In its Response Brief, Disability Rights Center, hereinafter “DRC,” ignores the evidence and law presented by Cross-Appellants, Families and Friends of Care Facility Residents (hereinafter FF/CFR) and Ellen Sue Gibson in their brief, that there were genuine issues of material fact on the matter of parent-guardian authority regarding public law and policy for discharges from the Arkansas human development centers (“HDCs”), which are licensed as Intermediate Care Facilities for Mentally Retarded (“ICFs/MR”). Under Rule 56, Federal Rules of Civil Procedure, the DRC Motion for Summary Judgment should have been denied in its entirety. See Fed. R. Civ. P. 56(c). The moving party, in this case DRC, must demonstrate an absence of evidence to support the non-moving parties’ case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). There were a multitude of facts in evidence which showed the State’s ultimate authority for admissions and discharges to Arkansas’ ICFs/MR and not, as DRC alleges, and as the lower Court found, parents and guardians. Specific facts showing there were and are genuine issues for trial were set forth in Cross-Appellants’ brief, summarized as follows:
1

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(1) The pleadings and records in this case are devoid of any assertion by cross-appellant leaders or other representatives that family and guardians have the authority attributed to them by the District Court.
(2) Arkansas law and practice did not and do not require parent or guardian consent for the parent’s child or the guardian’s ward to be discharged from a center. See the Court’s adverse ruling on this point, Opinion and Order, 1123-04, P.14; JA, p.445. The State’s new regulation, DDS HDC Admission and Discharge Rules, pp. 1, 3; JA 497, 499 (adopted in response to Court Order of 11/23/04), formalizes the discharge power of the Interdisciplinary Team. See Response Brief of Appellants/Cross-Appellees, at 8, which states incorrectly under “Statement of Facts” that “[t]he voluntarily admitted individual can only be withdrawn from the center by an application made by the parent or guardian...,” citing §20-48-412. Reading this section to prohibit resident discharges without guardian consent is at the core of Cross-Appellees’ case and argument on appeal. The statute does not provide as DRC alleges and the lower court found that “Arkansas law falls short in that it does not require that HDC superintendents discharge residents when they no longer require HDC services,” citing Ark. Code Ann. §20-48-412 (a). Opinion and Order, 11-23-04, p. 14; JA, p. 445. The statute applies to discharges by parent-guardian request, not discharges over parentguardian objection (emphasis added) No witness on the motion for summary
2

Case: 05-2979 Page: 7 Date Filed: 05/25/2006
judgment stated that the State applies or has applied that section, §20-48-412 (a), to give parents and guardians such ultimate authority. Section 20-48-412(b), providing for court commitments, clearly provides for discharge without parental consent and over parental objection, leaving discharge to “the judgment of the board and the superintendent” or “the sole judgment of the board.” Ark. Code Ann., 520-48-412(b) (Repl. 2001).
(3) DRC reiterates its misstatement in its “Argument I” that “residents are not discharged unless a guardian or family member requests discharge.” Response Brief of Cross-Appellees, p. 19; Id., pp. 20,24. This statement is simply incorrect and untrue. DRC’s arguments flow from a basic misinterpretation of the legal procedures for discharges found in policies for Arkansas’ ICFs/MR at present and before the policies were modified in response to the Court’s November 23, 2004 decision. In its Response Brief, DRC does not answer or even address CrossAppellants’ arguments on pages 26-30 of their Brief, which concluded that there was substantial evidence that state authorities, and not guardians, have and exercise ultimate authority to make discharge decisions for HDC residents. Brief for CrossAppellant, pp. 26, 31. These arguments include the following:
(a) A statement that “the guardian is the only one who can provide consent or withhold consent” does not say or imply that the guardian has the ultimate authority on discharges. Id., p. 26. As explained by Dr. Charles Green,
3

Case: 05-2979 Page: 8 Date Filed: 05/25/2006
Director of DDS/Arkansas’ Developmental Disabilities Services, the “treatment team” has authority to decide whether an individual would benefit from discharge, and whether an individual ward should leave “would depend on what the treatment team thought was best” and “how the guardian participated in the team process.” Dr. Green further explained, that “anyone can request to be discharged from an HDC” but they are “not always” discharged, because the discharge process is more complex than an individual’s simple request.
(b) Dr. James C. Green and former superintendent Boyd Hancock never indicated in their depositions that the guardian had ultimate authority “and can override doctors, IDT members, and even the HDC superintendents.” Brief for Cross-Appellees, p. 22. Although Ms. Gibson did make a decision to discharge her son H.P. from Booneville HDC in 1987, she had actual custody of her son for his entire life to that point and there were many indications of difficulties she experienced in procuring appropriate and safe care for her adult son who is her legal ward with dual diagnosis in different settings then and later. Gibson Dep. 3/29/04 , pp. 8, 11; JA 269, 272.
(c) Arkansas policy provides for situations in which individuals could be discharged over guardian objection, and the District Court erred in overlooking existing Arkansas policy and practice.
4

Case: 05-2979 Page: 9 Date Filed: 05/25/2006
– Judy Adams, SE Arkansas HDC Superintendent, in her Affidavit stated that the “interdisciplinary team ... periodically reviews the resident’s progress and determines whether the resident continues to benefit from active treatment, whether continued placement is warranted, and whether other placements may be available and in the resident’s best interests.” Adams Aff. (7-01-04) p. 1; JA 217. She stated further that “[d]ischarge planning begins at the time of admission,” that “[f]irst attempts to seek a community placement for ... [R.N.] were made on 11/22/02” and that “[r]epeated attempts were made until a placement was located and ... [R.N.] was discharged.” Id., p. 1; JA 217.
– SEAR HDC staff advised the guardian for R.N. that they wanted to place him outside, that he needed to go on and graduate up, and that he was ready for less structure. Harris Dep. 6/22/04, p. 19; JA 319.
– The ultimate authority on discharges lies with the State under Policy No. 1053, which provides that individuals may be transitioned from the HDC based on recommendation from the interdisciplinary team or the Office of Long-Term Care. DDS Director’s Office Policy No. 1053 (Eff. Date: December 1, 1997); AA 23, et seq (see text, A-1). This state policy comports with federal law and practice. See 32 CFR Ch. IV. §§483.12 and 441.302(d) (2005 Edition).
5

Case: 05-2979 Page: 10 Date Filed: 05/25/2006
(d) Under Policy No. 1076, the responsible party for an HDC resident may appeal the discharge decision. AR DDS Directors Policy No. 1076 (Eff. Date: July 1, 1996); JA 8 (See text, A-2). (e) Cross- Appellants never contended nor supported the theory that parental consent on discharge was the practice or rule. (4) In its Response Brief, DRC does not respond to Cross- Appellants’ assertion that it was error for the District Court to conclude that there was deposition testimony showing “that Gibson has the final say over whether H.P. will ever leave the center.” The Court relied on “docket entry number 65, Ex.2 at 37,” a page from the Green deposition (attached to Plaintiff’s Motion for Summary Judgment); Order, 11/23/04, p.11; JA 442. Cross-Appellees referred to the extract from the Green deposition which is shown in Appellant’s Appendix (AA), p.155 (Dep. of Green). In its Brief, Cross-Appellants recited three problems with this deposition evidence:
(a) The Green testimony actually submitted by Cross-Appellee cuts off Dr. Green’s response to a question on guardian’s authority; and FF/CFR Counsel concurs that this oversight should have been caught earlier, when the motions for summary judgment were submitted; but counsel objects to the statement and inference by DRC that “FF/CFR/Ellen Sue Gibson openly admit they were aware that Appellees did not include that additional
6

Case: 05-2979 Page: 11 Date Filed: 05/25/2006
information from Dr. Green’s deposition....” See Response Brief of DRC, p. 21; it is a huge leap from expressing enforcement of a motion and Response, as did Cross-Appellants, to having knowledge of a missing page (the significance in making the point is that Dr. Green was asked “[s]o you’re saying the guardian’s decision trumps...?” His answer is not shown in the record). The record on appeal does not show, therefore, that Green testified as the leading question might imply.
(b) The Green testimony in no way related to the experience of Gibson on her son’s interdisciplinary team; and
(c) The actual testimony shown in the Green deposition, p. 37, does not support the Court’s firm conclusion. Dr. Green testified that “only the guardian provides consent or withholds consent,” which in context of the regulations simply means that the parents and guardians do have a choice between ICF/MR services and community services. See 32 CFR, Ch. IV (10-1-03 addition), in particular subpart G – Home and Community-based Services; Waiver Requirements §§441.300 – 441.303 and §441.302(d), which specifies that eligible Medicaid recipients “be...(2) given the choice of either institutional or home and community-based services.” JA 463. There is nothing in this evidence which supports a conclusion that the guardian had the ultimate authority on discharges. Cross-Appellees’ response to Cross-
7

Case: 05-2979 Page: 12 Date Filed: 05/25/2006
Appellants’ arguments on this point is wholly inadequate. The aforesaid federal regulations are carried forward in the most recent rendition of the Code of Federal Regulations. Id., 10-1-05 Edition (5) The DRC response to Cross-Appellants’ argument that the lower court erred is contained under Cross-Appellees’ Point I.a., alleging that “[t]he District Court was correct in its determination that Arkansas law denies due process by not requiring HDC Superintendents to discharge residents when they no longer require HDC services.” Response Brief of DRC, p. 18. As primary support, DRC cited three decisions, two from the United States Supreme Court and one from the Eighth Circuit Court. Addington v. Texas, 441 U.S. 418, 425 (1979); Vitek v. Jones, 445 U.S. 480, 491-92 (1980); Collins v. Bellinghausen, 153 F. 3d 591, 596 (8th Cir. 1998). In Addington, the central issue was the burden of proof required for civil commitment of a person with mental illness for treatment in a hospital for persons with mental illness. A Texas probate court found in Addington that an individual was mentally ill and required hospitalization. A Texas appellate court reversed, holding that the proper standard of proof was “beyond a reasonable doubt.” The Supreme Court of Texas granted a writ of error. Texas v. Addington, 21 Tex. Sup. J. 19, 557 S.W. 2d 511 (1977). On grant of certiorari, the United States Supreme Court held that to meet due process requirements, the standard in mental illness
8

Case: 05-2979 Page: 13 Date Filed: 05/25/2006
commitment cases is greater than preponderance of the evidence but less than the reasonable-doubt standard. The Texas standard, “clear, unequivocal, and convincing” evidence, was held by the Supreme Court to be constitutionally adequate. Addington, 441 U.S. at 433. Pertinent to the present case, the Supreme Court stated that the “[e]ssence of federalism is that states must be free to develop a variety of solutions to problems and not be forced into a common, uniform mold.” Id. p. 431. The Court stated further, “[a]s the substantive standards for civil commitment may vary from state to state, procedures must be allowed to vary so long as they meet the constitutional minimum.” Id. The aforesaid analysis from Addington supports Cross-Appellants’ position that the State needs a flexible response in assuring that admission and discharge procedures for persons with mental retardation satisfy due process. The case at bar concerns public policy for admissions to a public facility for persons with mental retardation, not mental illness.
The other two cases cited by Cross-Appellees were also mental health, not mental retardation, situations. In Vitek et al. v. Jones, supra, when the situation was transfer of a Nebraska state prisoner to a state mental hospital, the ruling of the three-judge panel District Court was that the state statute permitting such a transfer based on a decision of the Director of Correctional Services was unconstitutional, and that the individual prisoner was entitled to an adversarial hearing with
9

Case: 05-2979 Page: 14 Date Filed: 05/25/2006
“qualified and independent assistance.” Miller v. Vitek, 437 F. Supp. 569 (D. Neb. 1977). The Supreme Court affirmed the District Court decision that such an involuntary transfer of a state prisoner to a mental hospital “implicated a liberty interest protected by the Due Process Clause.” Four Justices signed the decision, and Justice Powell concurred in part, joining in the opinion but objecting to the universal right of inmates to a licensed attorney. Id., pp. 494, 497-98, 499. Vitek is not on point because it presented the distinctive issue of rights under civil commitments for mentally ill persons. See Heller v. Doe, 509 U.S. 312, 321-28 (1993), which discussed the justifications for different, distinguishing admission laws and policies for persons with mental illness. More apropos to the present case, however, are the two Supreme Court decisions relied upon by the District Court in finding that state non-judicial, administrative procedures satisfy due process requirements, Parham v. J.R., 442 U.S. 584 (1979) and Secretary of Pub. Welfare v. Institutionalized Juveniles, 442 U.S. 640 (1979). The District Court recognized that a “neutral fact finder” should make the inquiry and that Arkansas procedure required two physicians for admissions. Opinion and Order, pp. 12-13. For the annual review decisions, Arkansas procedure relies on the independent judgment of medical professionals.
The last case, Collins v. Billinghausen, supra, involved the situation of transfer of an elder person from a nursing home to a granddaughter’s home, and
10

Case: 05-2979 Page: 15 Date Filed: 05/25/2006
then the subsequent commitment of the grandmother because the former nursing home resident was not receiving adequate care in her granddaughter’s home. Collins offers absolutely no support to the DRC/Cross-Appellees’ position in the present appeal.
2. Cross-Appellants have a vital interest in the issue raised by the District Court in its partial grant of the DRC Motion for Summary Judgment. The question may be asked why parents and guardians should care about the District Court’s ruling on the DRC Motion for Summary Judgment after the Court’s due process concerns were resolved by the Court’s Order of June 9, 2005. Addendum, 6/9/05 Order, pp. 1, et seq. (1) There is concern that the lower court’s first ruling will bring a measure of inflexibility on the matter of discharges, which would not be in the best interest of families and their severely disabled loved ones. DRC cites Mathews v. Eldridge, 424 U.S. 319 (1976) on its point that the Arkansas procedure denies Mr. Porter’s right to be free. Brief for Cross-Appellees, pp. 14-15, 16. The Mathews case involved a mental health commitment. The United States District Court, Western District of Virginia, ruled that certain administrative procedures established by the Secretary of Health, Education and Welfare for assessing continued existence of a disability for Social Security disability eligibility were unconstitutional. The District Court rule that the procedures were unconstitutional because termination of benefits required an evidentiary hearing. Eldridge v.
11

Case: 05-2979 Page: 16 Date Filed: 05/25/2006
Weinberger, 361 F. Supp. 520, (W.D. Va., 1973), aff’d, 493 F. 2d. 1230 (4th Cir. 1974). The United States Supreme Court reversed, holding that an evidentiary hearing is not required prior to termination of disability benefits. And yet the administrative procedures for eligibility determination satisfy due process. The Court opined that “[d]ue process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances” and that “[D]ue process is flexible and calls for such procedural protections as the particular situation demands,” citing Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961) and Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Mathews v. Eldridge, 424 U.S. at 334. Distinguished from the present case, Mathews is a mental health case; but in its general language quoted above, it adds support to the parent-guardian concern and interest.
(2) There is the ever-present parent-guardian concern that DRC and the broader interests which it represents (unidentified specifically in the record) will be given additional support through the Court’s findings and judicial language, to undermine further state-operated facilities and programs. There are examples of the DRC broader commitment against the HDC service system in its Reply Brief, as follows:
(a) The DRC/Cross-Appellees’ argument, with a devotion to such language as “confinement in an institution, as in the present case,” is language of
12

Case: 05-2979 Page: 17 Date Filed: 05/25/2006
shibboleth (e.g., code or signal words) of those who support the deinstitutionalization movement, the objective of which is to close every center for mentally retarded persons in the United States (publicly operated). Brief for DRC, p. 18; with language substantially replicated at 14-15, 17, 22-23, 24, and 26-27, 2829, 30-31, 32, 36-37, 38, 41. There is not one word of recognition that the individuals for their own protection would be confined just as much and maybe more so in the alternative community living arrangements.
(b) Another shibboleth is that families have “conflicts of interest” in making placement decisions. Brief for DRC, p. 30. Observing that parents do not always act in the best interest of their children is akin to saying that given the human condition, people make mistakes. This reality is no doubt justification for leaving placement decisions ultimately with State authorities, not the families. Such a broad generalization as this simplistic statement ignores the realities of the degree of abilities of parents to hold up to the often crushing duty of caring for their loved one with severe disabilities and also the degree of disabilities of the persons needing out-of-home services.
Cross-Appellant’s statement that the “District Court conceded ‘parents and guardians sometimes act against the best interest of their children and wards’” is also misleading and incomplete without the Court’s cautionary sentence
13

Case: 05-2979 Page: 18 Date Filed: 05/25/2006
which follows: “Although this unfortunate fact is reason for caution, it is not the rule.” Opinion and Order, 11/23/04, Addendum, p. 12.
(c) In their polemic on the statutory authority for law enforcement to assist HDC superintendents in returning residents who “leave the institution without permission,” DRC emphasizes what it regards as the “often permanent and involuntary nature of confinement at the HDCs,” citing Ark. Code Ann. §20-48410. Such authority, contends DRC, allows existence of facilities without “enclosure walls, fences, or other barriers in order for an individual to be involuntarily confined” in an HDC. Brief for Appellant/Cross-Appellee, p. 23. There is in this polemic no recognition given to a clear concern of the caregivers to protect the individual from death, harm or other abuse. DRC, an advocacy group representing a quasi-governmental authority, apparently fails to grasp important realities in the care of persons with severe disabilities.
(d) In summary, Cross-Appellants submit that their concerns and interest involve the prospects of the State’s commitment to continue operating and adequately maintaining its service system for our persons afflicted with severe mental retardation. This principal concern encompasses the range of corollary issues, including budgetary sufficiencies and staff support.
(3) Superintendents should “discharge residents when they no longer require HDC services,” but it should be obvious that the issues and processes for
14

Case: 05-2979 Page: 19 Date Filed: 05/25/2006
ascertaining the requirement are rather complex, involving oversight of the interdisciplinary teams and a recognition that predictions of success in alternative settings may, and do in some cases, prove to be inaccurate. A flexible response is therefore necessary to address service needs of persons eligible for HDC admission.
CONCLUSION The Court of Appeals should reverse that part of the District Court’s Opinion and Order of November 23, 2004 which granted in part Appellants’ motion for summary judgment and which held that Arkansas law denied due process by not requiring HDC superintendents to discharge residents when they no longer required HDC services. Law and practice prior to the District Court’s November 23, 2004 Opinion and Order clearly were not supportive of the lower Court’s decision on this point.
FAMILIES AND FRIENDS OF CARE FACILITY RESIDENTS (FF/CFR) AND ELLEN SUE GIBSON,
By: ___/s/ William F. Sherman___ William F. Sherman, their attorney AR BAR NO. 64066
504 Pyramid Place 221 West Second Street Little Rock, AR 72201
(501) 372-3148
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Case: 05-2979 Page: 20 Date Filed: 05/25/2006
CERTIFICATE OF SERVICE
I, William F. Sherman, herby state that a true and exact copy of the foregoing Reply Brief of Appellees/Cross-Appellants, Families and Friends of Care Facility Residents; Ellen Sue Gibson has been served upon the following attorneys of record for the parties:
Mr. Breck Hopkins AR Department of Human Services Office of Chief Counsel P.O. Box 1437, Slot S260 Little Rock, AR 72203-1437
Ms. Lori Freno Assistant Attorney General AR Department of Human Services 323 Center Street, Suite 200 Little Rock, AR 72201
Ms. Janet C. Baker Ms. Dana K. McClain Mr. Adam H. Butler Disability Rights Center 1100 N. University, Suite 201 Little Rock, AR 72207
On this 24th day of May, 2006.
/s/ William F. Sherman_____ William F. Sherman

Case: 05-2979 Page: 21 Date Filed: 05/25/2006
CERTIFICATE OF SCANNING AND VIRUS FREE NATURE OF CD I, William F. Sherman, hereby certify that a true and exact copy of the foregoing Reply Brief of Cross-Appellants, Families and Friends of Care Facility Residents and Ellen Sue Gibson, filed with the Court of Appeals on May 24, 2006, has been copied onto this CD, has been scanned by Norton Antivirus 2005, and is virus free.
/s/ William F. Sherman _ William F. Sherman

STATE OF ARKANSAS )

)

COUNTY OF PULASKI

)

SUBSCRIBED AND SWORN TO before me, a Notary Public, in and for the aforesaid county and state, on this _________ day of May , 2005.

My Commission Expires:

_____________________________ Notary Public

Case: 05-2979 Page: 22 Date Filed: 05/25/2006
ADDENDUM TO REPLY BRIEF OF
CROSS-APPELLANTS
DDS Director’s Policy No. 1053 (Eff. Date: December 1, 1997)............................................................... A-1
DDS Directors Policy No. 1076 (Eff. Date: July 1, 1996) ....................................................................... A-2

 
 457 F.3d 794 (2006)
Harve PORTER, by his next friend, Susan Pierce; Disability Rights Center, Inc., PlaintiffsAppellants/Cross-Appellees, v.
Kurt KNICKREHM, in his official capacity as Director of the Arkansas Department of Human Services; James C. Green, Dr., in his official capacity as Director of
Developmental Disabilities Services Kay Barnes; Grover Milton Evans; Wesley Kluck; Randy Lann; Suzann McCommon; Thomas Dolislager; Luke Heffley, in their official
capacities as members of the Board of Developmental Disabilities Services, DefendantsAppellees,
Family and Friends of Care Facility Residents; Ellen Sue Gibson, Intervenors-Appellees/ Cross-Appellants.
Nos. 05-2978, 05-2979.
United States Court of Appeals, Eighth Circuit.
Submitted: June 15, 2006. Filed: August 8, 2006.
7956 *795 *796 Dana K. McClain, argued, Little Rock, Arkansas (Janet C. Baker and Adam H. Butler, on the brief), for appellants/cross-appellees.
William F. Sherman, argued, Little Rock, Arkansas, for Gibson.
Breck C. Hopkins, argued, Little Rock, Arkansas (Mike Beebe, on the brief), for Green and Knickrehm.
Before MURPHY, MELLOY, and COLLOTON, Circuit Judges.
MELLOY, Circuit Judge.
This appeal stems from the admission of Harve Porter to one of six Arkansas human development centers ("HDCs"). Porter and the Disability Rights Center (collectively "Porter")[1] appeal the judgment of the district court [2] regarding their complaint under 42 U.S.C. § 1983 and the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Porter brought a complaint against two employees of the Arkansas Department of Human Services and the members of the Board of Developmental Disabilities Services in their official capacities (collectively "the Officials"). The Family and Friends of Care Facility Residents and Ellen Sue Gibson, Porter's mother and legal guardian (collectively "Intervenors"), intervened in the lawsuit and filed a cross-appeal arguing that the district court erred in requiring reforms in the review process of HDCs for admitted patients. We affirm.
I.
Porter is a forty-nine year-old individual with moderate mental retardation and developmental disabilities. He has a history of mental illness and suffers from a seizure disorder. This appeal stems from a time when Porter was confined at one of the six Arkansas HDCs. Previous to that period of confinement, Porter had been committed to several HDCs over many years, but never had a judicial hearing to review his placement. Porter has repeatedly requested permission to leave the HDCs while confined, but he has not been allowed to do so. Porter was admitted to the HDCs voluntarily by the authority of Gibson, his legal guardian.
There are several sources of legal protection currently afforded to persons in situations like Porter's. Arkansas 797 statutory law affords basic procedural review for *797 patients at HDCs. Ark.Code. Ann. §§ 20-48-405 & 406.
HDCs have supplemented the statutory protections with internal policies and procedures. These procedures

afford some review of the admission process. The existing protections include pre-placement reviews by independent professionals. There are also adversarial administrative proceedings to determine proper treatment and placement. Because HDCs are Medicaid-eligible facilities, there are also numerous protections under the Medicaid regime. Further, in cases like Porter's, a legal guardian must seek a ward's admission to HDCs. However, prior to the filing of the complaint at issue in this case, there were no judicial hearings to review Porter's admission to, or his continuing placement in, one of the HDCs.
Porter filed his complaint alleging that the procedures governing admission and continuing placement were constitutionally infirm. The Officials filed a motion to dismiss. The Officials argued that the Rooker-Feldman doctrine precluded Porter's claim because they believed a grant of relief in the federal action would necessarily void earlier state actions granting guardianship. Further, the Officials argued that Porter had not suffered an injury in fact. Also, the Officials contended that there was no state action in the institutionalization of Porter. On February 12, 2004, the district court granted in part and denied in part the Officials' motion to dismiss Porter's complaint. The district court rejected the Officials' arguments against Porter's due process claim and allowed that claim to proceed. However, the district court dismissed the equal protection claim without prejudice. The district court also granted the Intervenors permission to intervene. Discovery was allowed to proceed.
After discovery, Porter and the Officials filed motions for summary judgment as to the due process claim. On November 23, 2004, the district court granted in part and denied in part each of the summary judgment motions. Specifically, the district court found that the procedures governing admission to HDCs were constitutionally adequate. However, the district court held that the review policies for continued placement at HDCs did not afford adequate due process to patients when treatment at the facility was no longer warranted.
In response to the order of the district court, the Officials submitted proposed changes to their procedural rules governing the review of patients at HDCs. On June 9, 2005, the district court concluded that the Officials' proposed amended rules provided sufficient constitutional guarantees and served as an adequate remedy to the present case. Consequently, with no remaining claims, the district court dismissed the case.
Porter appeals the district court's judgment that the pre-commitment hearings offer adequate constitutional protections under the Due Process Clause. He proposes a number of alternative procedural protections to supplement the existing procedural scheme. Porter seeks some type of judicial review of the initial and continued placement at HDCs. Further, the Intervenors cross-appeal and argue that the district court erred in finding that the review procedures at HDCs were constitutionally inadequate. However, as the Officials agreed to change the policies of HDCs in response to the order of the district court, they do not join the Intervenors in their crossappeal.
II.
We review the district court's denial of a motion for summary judgment de novo. Falls v. Nesbitt, 966 F.2d 375, 798 377 (8th Cir.1992). Summary judgment is *798 proper if "the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
Under Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), there are three factors set forth to determine whether a state has provided constitutionally adequate procedures in cases like this one: (1) the private interest that will be affected by the state action; (2) the risk of erroneous deprivation of that interest through the procedures used, and the value of any additional or substitute procedures; and (3) the state's interest. Id. at 334-35, 96 S.Ct. 893. Thus, the Mathews test seeks to balance the liberty interest of a hypothetical plaintiff with the interests of the relevant governmental authority.
Porter's interest in this case is freedom from confinement. Such an interest is recognized as deserving procedural constitutional protection and meets the first factor under Mathews. See Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). The Third Circuit has held that a person involuntarily committed to an institution for twenty-eight years without a judicial hearing had "been deprived of her liberty to be free from commitment without procedural due process." Clark v. Cohen, 794 F.2d 79, 86 (3d Cir.1986).

The state argues that Porter's health and safety are also interests that are best served by his admission to one of the HDCs. However, since this case is about the procedures and not the substance of Porter's admission, this argument is not germane to the Mathews test. Even under the judicial hearings proposed by Porter, he could very well be admitted to one of the HDCs. Consequently, his health and safety would be considered during those judicial hearings. For the purposes of Mathews, it is enough to say there is a substantial liberty interest, like the freedom of confinement, to meet the first factor.
Having determined that a liberty interest exists, we must determine what process is required to protect that interest. The question is whether the procedures afforded under Arkansas state law and the HDCs' policies are constitutionally sufficient.
In answering this question, the district court applied the United States Supreme Court precedent of Parham v. J.R., 442 U.S. 584, 606, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979), and found that only minimal protections were needed to meet the constitutional requirements. Parham applied the Mathews test to a situation similar to the present case and found no constitutional violation. Id. at 600, 99 S.Ct. 2493. Porter argues that Parham is clearly distinguishable from the present case because it involved the commitment of children and not adults. The district court implicitly ruled that because Porter was child-like in many respects (such as by being under the care of a guardian) his commitment to one of the HDCs was "voluntary" and not subject to substantial judicial oversight. Porter contends that the district court made an error of law by treating Porter as a child and, consequently, applying Parham. We disagree.
We believe that impairment on the basis of retardation is sufficiently similar to impairment based upon age. Porter was placed under the care of a legal guardian. Consequently, his control over his own affairs was more limited 799 than that of a typical adult. In this way, Porter's situation is a close analogue to that of a minor, subject *799 to care by a parent or guardian. See Thomas S. v. Flaherty, 902 F.2d 250, 254 (4th Cir.1990). If Porter wishes to allege that he is not properly represented by his guardian, there are existing legal mechanisms for challenging his guardianship.
Porter contends that there are inherent problems in allowing a guardian to admit patients like Porter to HDCs. Specifically, Porter argues that there is a potential conflict of interest between a guardian and a mentally retarded adult ward. Because these wards often receive care under Medicaid when they are admitted to institutions, there is a financial incentive to place them there. Porter also argues that there is also a general relief from having to care for a mentally retarded person. Porter also notes that those working at HDCs have institutional incentives to look at interests other than those of the ward. Chiefly, Porter argues that employment by the state gives a motive to maintain the existence of HDCs through admission of persons like Porter. Consequently, Porter argues that some independent judicial oversight of the process is warranted.
Porter contends that the proposed substitute judicial procedures would alleviate the potential errors created by the conflicts of interest between Porter, his guardian, and the employees of HDCs. We agree that judicial oversight would provide heightened protection. However, Porter has failed to show that the current protections are inadequate under Parham. Before admission, any person must receive careful examination by physicians. There is an adversarial review process. The conflicts of interest outlined by Porter are all hypothetical and speculative. There is no actual impropriety by Gibson alleged in this case. While it is possible to imagine factual scenarios where such conflicts do exist and judicial oversight is warranted, there are no facts to support such allegations in the present matter. If such a conflict did exist, it could be addressed through guardianship decisions or a suit by the guardian against the state. Parham simply does not require the panoply of protections suggested by Porter.
Therefore, we affirm the judgment of the district court that the existing protections in the admission to HDCs are sufficient.

III.
The Intervenors appeal the district court's judgment that the post-admission review procedures that were afforded patients (before the HDCs changed policies) were constitutionally inadequate. This cross-appeal has an unusual procedural posture. The Officials have decided not to appeal the judgment of the district court on this issue. In fact, they adopted policy changes in response to the district court's order and had those changes approved by the district court. Consequently, it is unclear by what authority the Intervenors are contesting the judgment of the district court. Ultimately, we conclude that the Intervenors do not have standing to bring their cross-appeal.
"To maintain standing to appeal, an intervenor must have suffered an injury in fact that is fairly traceable to the challenged action and that is likely to be redressed by the relief requested." Schulz v. Williams, 44 F.3d 48, 52 (2d Cir.1994) (citing Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)). The injury in fact that is at issue must be more than a "mere interest in the problem" and that interest must not be "hypothetical" in nature. Id. (internal citations omitted). Typically, an intervenor can maintain a lawsuit after resolution by the 800 original parties in only very narrow circumstances. See, e.g., Horn v. Eltra *800 Corp., 686 F.2d 439, 440-41 (6th Cir.1982) (noting that intervenors can only maintain an existing suit in limited situations such as when they have a separate basis for jurisdiction against the defendants). Here, there is still an active lawsuit insofar as Porter has brought an appeal, but the particulars of the cross-appeal were resolved by the parties after the district court entered an order on the issue.
In this case, the Intervenors argue two grounds[3] for allowing their cross-appeal. First, the Intervenors contend that the district court's decision might limit flexibility of decision-making for future patients. Second, they argue that the district court's opinion might set a precedent for future restrictions on the guardian-ward relationship.
These arguments are hypothetical in nature. We cannot say whether the district court decision will be used by other courts and decision-makers to erode the guardian-ward relationship. Further, the Intervenors are unable to explain how the decision of the district court has, in fact, undermined the flexible response abilities of HDCs. Insofar as the decision of the district court was integrated into the policy changes adopted by the HDCs, the Intervenors are free to bring a claim against the Officials if and when those policy changes abridge their rights or interests.
The Officials or the HDCs could have adopted the changes to the review procedures at any time. That they could have done so illustrates why the Intervenors do not have a legal avenue to appeal the judgment of the district court on this issue. The HDCs and the Officials have an interest in the policies adopted by the HDCs in regard to their patients. If they decide collectively or individually to amend those procedures, that is their prerogative. If the Intervenors decide that any proposed changes disrupt their guardianship relationships with patients or otherwise affect the rights of patients, they could file claims against the Officials. However, in the present case, the Intervenors have not done so. Consequently, if there is a claim to be brought, it should be in a separate action. The Officials have decided not to appeal the decision against them and we see no compelling reason to allow the Intervenors to do so in their place.
IV.
For the foregoing reasons, we affirm the judgment of the district court.
[1] Porter was originally joined by a second plaintiff, Robert Norman, but only Porter's claim is before us. On or about January 15, 2004, Norman was removed from one of the HDCs and taken to a private facility. That was three months after the initial action was filed in this case. Consequently, the district court dismissed Norman's claims, and he is no longer a party.
[2] The Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas.

[3] The Intervenors offer a third reason for allowing their cross-appeal, but after reviewing it, we cannot distinguish it from the first reason offered. The Intervenors appeal to the need for a "flexible response" in their third argument, but that is the essence of their first argument as well. Insofar as there is any discernable difference between the two arguments, we believe that the third argument fails for the same reasons as the first discussed herein.
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