Case 2:14-cv-00025-SEH Document 1 Filed 03/31/14 Page 1 of 54

Anna Conley ACLU of Montana Foundation P.O. Box 9138 Missoula, MT 59807 Telephone: (406) 443-8590 Email: annac@aclumontana.org
Kyle A. Gray Adrian A. Miller Holland & Hart LLP 401 N. 31st Street Suite 1500 Billings, MT 59101-1277 Telephone: (406) 252-2166 Email: kgray@hollandhart.com
Jeffrey A. Simmons 150 East Gilman Street Madison, WI 53703-1482 Telephone: (608) 258-4267 Email: jsimmons@foley.com (Pro hac vice motion to follow)
Tammy H. Boggs Foley & Lardner LLP 3579 Valley Centre Drive Suite 300 San Diego, CA 92130 Telephone: (858) 847-6700 Email: tboggs@foley.com (Pro hac vice motion to follow)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BUTTE DIVISION

DISABILITY RIGHTS MONTANA, INC.,
Plaintiff,
-vs-
RICHARD OPPER, in his official capacity as Director ofthe Montana Department of Public Health and Human Services, JOHN GLUECKERT,

Civil No. l?\1-(4-).5-19 U- 5 E ti
COMPLAINT

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in his official capacity as Administrator of the Montana State Hospital; MIKE BATISTA, in his official capacity as Director of the Montana Department of Corrections; CATHY REDFERN, in her official capacity as Health Services Bureau Chief for the Montana Department of Corrections, LEROY KIRKEGAARD, in his official capacity as Warden of Montana State Prison, DR. PETER EDWARDS, in his official capacity as Staff Psychiatrist of Montana State Prison, JILL BUCK, in her official capacity as Mental Health Director of Montana State Prison
Defendants.
INTRODUCTION 1. Individuals with serious mental illness who are incarcerated at the
Montana State Prison ("State Prison" or "Prison") are subjected to a cruel system
that exacerbates, rather than treats and ameliorates, their mental illnesses. At the
Prison, both prisoners sentenced directly to the Department of Corrections
("DOC") and prisoners sentenced to the Department of Public Health and Human
Services ("DPHHS") as "Guilty But Mentally Ill" (sometimes herein "GBMI")
receive substantially inadequate mental health care and are warehoused in solitary
confinement, and are thereby subjected to cruel and unusual punishment in
violation of the Eighth Amendment to the U.S. Constitution.
2. Individuals sentenced GBMI are also subject to due process violations
contrary to the Fifth and Fourteenth Amendment to the U.S. Constitution. At the
Montana State Hospital ("State Hospital" or "Hospital"), individuals who have
been adjudicated by a court to be Guilty But Mentally Ill, and remanded to the
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custody of the DPHHS are subsequently transferred to the Prison simply to open up Hospital bed space or to avoid treating prisoners who are disliked by staff, without consideration of the individuals' mental health treatment needs. DPHHS officials and State Hospital staff know that the Prison is not equipped to meet the treatment needs of these individuals and that transfer to the Prison will not best serve GBMI patients' custody, care and treatment needs. Despite this, DPHHS and Hospital staff transfer GBMI patients to the Prison to their detriment without due process.
3. At the Prison, prisoners with serious mental illness are treated with suspicion and disdain, and their legitimate mental health needs are deliberately ignored. In 2011, the Prison's warden estimated that approximately one-fifth of the Prison's approximately 1,500 prisoners suffer from mental illness, yet the Prison's Mental Health Treatment Unit (sometimes herein "MHTU") has just 12 beds, some of which are regularly kept empty. Prison staff engage in a pattern of cruel and unusual punishment of prisoners with serious mental illness, including: routinely keeping prisoners with serious mental illness locked in solitary confinement 22 to 24-hours a day for months, and in some cases years, which makes their illnesses worse and leads to a cycle of misbehavior and further punishment; depriving prisoners with serious mental illness of clothes, bedding, proper food, and human contact as part of so-called "behavior management plans"
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that punish prisoners for behavior resulting from their mental illness; deliberately refusing to diagnose prisoners as suffering from mental illness despite clear evidence supporting such diagnoses; deliberately discontinuing prescriptions for necessary mental health medications; and failing to provide any meaningful treatment and therapy for the vast majority of prisoners with serious mental illness. This is a system where punishment without rehabilitation or treatment, is the Prison Defendants' standard practice for prisoners with serious mental illness.
4. These acts by Defendants violate the prisoners' constitutional rights to due process (under the Fifth and Fourteenth Amendments to the United States Constitution), and to be free from cruel and unusual punishment (under the Eighth and Fourteenth Amendments to the United States Constitution), and prisoners' rights to reasonable accommodations for their mental illnesses under the Americans with Disabilities Act and the Rehabilitation Act.
5. On behalf of all prisoners with serious mental illness at the Prison, including those sentenced GBMI and subjected to the State Hospital's transfer practices and those sentenced to the DOC, Disability Rights Montana, Inc. brings this action.
THE PARTIES 6. Plaintiff Disability Rights Montana, Inc. ("DRM") is a not-for-profit Montana corporation and the authorized protection and advocacy agency for
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Montana pursuant to the federal Protection and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. § 10801 et seq. Among other things, DRM is authorized by federal law to pursue legal, administrative, and other appropriate remedies to ensure that individuals with serious mental illness in state institutions are protected from abuse and neglect.
7. Individuals who have received or are receiving mental health services, or their family members, are substantially involved in DRM' s governance, including serving on DRM' s board of directors, and constitute at least 60 percent ofDRM's advisory council.
8. Defendant Richard Opper is Director of the DPHHS and at all times relevant to this Complaint was acting within the scope of his employment and under color of state law in his capacity as Director ofDPHSS. Director Opper is directly responsible for the transfer of individuals from the State Hospital to the Prison. The DPHHS Director is personally involved in transferring GBMI patients to the Prison without due process. Director Opper is sued in his official capacity.
9. Defendant John Glueckert is the Administrator of the State Hospital and at all times relevant to this Complaint was acting within the scope of his employment and under color of state law in his capacity as Administrator of the State Hospital. Defendant Glueckert and his predecessors have been personally
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involved in transferring GBMI patients to the Prison without due process. Mr. Glueckert is sued in his official capacity.
10. Defendants Opper and Glueckert are referred to collectively as the "State Hospital Defendants."
11. Defendant Mike Batista is Director of the Montana Department of Corrections ("DOC") and at all times relevant to this Complaint was acting within the scope of his employment and under color of state law in his capacity as Director of DOC. Director Batista is directly responsible for the administration of the Prison and has authority to direct the housing, discipline, treatment and care of prisoners with serious mental illness at the Prison. Director Batista is sued in his official capacity.
12. Defendant Cathy Redfern is the DOC Health Services Bureau Chief, and at all times relevant to this Complaint was acting within the scope of her employment and under color of state law in her capacity as Health Services Bureau Chief. Ms. Redfern is sued in her official capacity.
13. Defendant Leroy Kirkegard is Warden of the Prison and at all times relevant to this Complaint was acting within the scope of his employment and under color of state law in his capacity as Warden. Warden Kirkegard is directly responsible for the administration of the Prison and has authority to direct the
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housing, discipline, treatment and care of prisoners with serious mental illness at the Prison. Warden Kirkegard is sued in his official capacity.
14. Defendant Jill Buck is Director of Mental Health for the Prison and at all times relevant to this Complaint was acting within the scope of her employment and under color of state law in her capacity as Mental Health Director. Ms. Buck has authority to direct the housing, discipline, treatment and care of prisoners with serious mental illness at the Prison. In addition to the acts set forth below, Ms. Buck regularly approves prisoners with serious mental illness for long term housing in solitary confinement and punitive isolation practices such as behavior management plans ("BMPs") discussed below. Ms. Buck approves solitary confinement, 24-hour isolation in disciplinary detention, and BMPs as sanctions for behaviors that are products of mental illnesses. Ms. Buck is sued in her official capacity.
15. Defendants Batista, Redfern, Kirkegard and Buck have personally participated in providing inadequate mental health treatment to prisoners at the Prison. They have refused to take steps to ameliorate inadequate treatment made known to them by family members of impacted prisoners. They have denied multiple grievances, mental health requests, and/or appeals regarding inadequate mental health treatment. They have direct oversight over all of the Prison practices described in this Complaint.
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16. Defendant Dr. Peter Edwards is the staff psychiatrist for the Prison and at all times relevant to this Complaint was acting within the scope of his employment and under color of state law in his capacity as staff psychiatrist. Dr. Edwards has authority to direct the housing, discipline, treatment and care of prisoners with serious mental illness at the Prison. Dr. Edwards is sued in his official capacity.
17. Director Batista, Warden Kirkegard, Ms. Buck, and Dr. Edwards are referred to collectively as the "Prison Defendants."
JURISDICTION AND VENUE 18. This court has jurisdiction ofDRM's claims pursuant to 28 U.S.C. §§ 1331 and 1343. 19. Venue is proper in this District pursuant to 28 U.S.C. § 139l(b), and is proper in this Division pursuant to Local Rule 3.2(b), inter alia, because the unlawful transfers from the State Hospital occurred in Deer Lodge County. 20. This Court has authority pursuant to 42 U.S.C. 1983 to order injunctive and declaratory relief. 21. This Court has authority pursuant to 42 U.S.C. §12188 to order injunctive relief to remedy violations of the Americans With Disabilities Act.
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22. This Court has authority pursuant to 29 U.S.C. 794a to order injunctive relief to remedy violations of the Vocational Rehabilitation and Other Rehabilitation Services Act.
FACTS The Prison's Population Of Prisoners With Serious Mental Illness 23. Prisoners with serious mental illness make up a large percentage of the individuals incarcerated at the Prison. In 2011, the Prison Warden estimated that approximately one-fifth of the Prison's approximately 1,500 prisoners suffer from mental illness. The Prison's staff psychiatrist, Dr. Edwards, has approximately 275 prisoners on his medication management caseload. DPHHS's Procedures For Transferring Prisoners To The Prison 24. In cases where an individual suffered from a mental disease or defect or developmental disability at the time he committed a crime, § 46-14-312, MCA directs a court to sentence that individual to the custody of the Director of DPHHS. Such sentences are known as "Guilty But Mentally Ill." § 46-14-312, MCA requires that the individual be placed in an appropriate facility after considering the recommendations of treatment professionals. In practice, most individuals sentenced GBMI are initially sent to the Forensic Wing of the State Hospital to receive appropriate mental health care. Once at the State Hospital,§ 53-21-142(2),
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MCA guarantees patients the "right to the least restrictive conditions necessary to achieve the purpose of commitment."
25. The Forensic Wing of the State Hospital has only 32 beds, which is insufficient for the number of GBMI individuals sentenced to DPHHS custody. In some instances, GBMI patients may also reside in other wings of the hospital, such as the Residential Treatment Unit.
26. Aside from insufficient bed space in the Forensic Wing, the State Hospital has sufficient staff and resources to provide appropriate care to those individuals with serious mental illness that Hospital staff want to treat. The State Hospital has at least seven full-time psychiatrists available at all times for a population of approximately 209 patients, resulting in a psychiatrist-patient ratio of approximately 1 to 28. Every GBMI patient is assigned a treatment team, including a psychiatrist or advance practice psychiatric nurse, a social worker and a nurse, and in some cases, a treatment specialist and a recreation therapist.
27. Under§ 46-14-312, MCA, the Director ofDPHSS may transfer a GBMI patient to another correctional, mental health, residential or developmental disabilities facility only if that facility "will better serve the [patient's] custody, care and treatment needs." The DPHHS Director must consider "the recommendations of professionals providing treatment to the defendant and recommendations of the professionals who have evaluated the defendant" prior to
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ordering the patient's transfer. In practice, however, the DPHHS Director ignores the patient's custody, care and treatment needs and, instead, transfers patients to the Prison simply to open up additional beds at the State Hospital or to get rid of patients who are disliked by Hospital staff.
28. Although transfer recommendations are formally made by the Hospital's Forensic Review Board ("FRB"), that review process is a sham. With no semblance of due process, the FRB rubber-stamps decisions already made by Hospital staff. Upon information and belief, the FRB has never recommended against transferring a patient to the Prison. Upon information and belief, the State Hospital is so confident of the outcome of FRB proceedings that the Hospital makes arrangements to transfer patients to the Prison before the FRB has even met.
29. This reality of the State Hospital's transfer process was captured in a 2007 email from defendant Jill Buck to Prison staff regarding an impending transfer of GBMI patients to the Prison, in which she wrote: "the Director of DPHHS wants to clear out as many GBMI' s that they can - which means they will come here. They heard that we have bed space so they want to fill us up!"
The Prison's Practices Regarding Prisoners With Serious Mental Illnesses
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30. Once transferred to the Prison, a GBMI patient's mental health treatment all but disappears and the patient becomes subject to conditions that are far more likely to make his mental illness worse than to make him better.
31. The Prison also houses many prisoners with serious mental illness sentenced directly to the DOC. These prisoners encounter the same inadequate mental health treatment and overuse of solitary confinement as GBMI patients transferred to the Prison.
32. The Prison's treatment of prisoners with serious mental illness is constitutionally defective at every step of the treatment process. When prisoners arrive at the Prison, the Prison has no meaningful system for identifying, classifying, and monitoring prisoners with serious mental illness.
33. Prison officials do not know the number of prisoners with mental illness because they have no system to classify and track them.
34. The Prison has no policy or procedure to define or classify prisoners according to their level of mental health need.
35. The Prison's initial screening of prisoners with serious mental illness during intake often occurs weeks after admission, which is far too long to identify suicidal prisoners or prisoners in mental crisis.
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36. The Prison's level 2 mental health evaluation, which is conducted if a prisoner shows signs of mental illness during the initial screening, sometimes occurs weeks after the initial screening.
37. The Prison has no policy explaining how the information gathered ! !
from prisoners at intake should be processed or utilized, whether it should be taken into account when determining housing, custody level, or programming, or who should receive copies of the information.
38. The Prison does not create comprehensive treatment plans for prisoners with serious mental illness.
39. The Prison has no system for auditing, evaluating or ensuring the effectiveness of its purported mental health care program.
MSP Mental Health Staff Mis-Diagnose Prisoners as "Faking" Mental Illness 40. MSP mental health staff, including Defendants Buck and Edwards, engage in a policy and practice of mis-diagnosing prisoners as feigning mental illness, and characterizing their behavior as manipulative, rather than a product of mental illness. As a result, a culture of suspicion, derision and mistrust toward prisoners with serious mental illness is prevalent at the Prison. This has widereaching ramifications for prisoners with serious mental illness, including increased custody levels, restrictive housing, disciplinary actions and sanctions,
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decreased access to education and programming, and a lesser chance of receiving parole once eligible.
41. The Prison's only psychiatrist, Dr. Peter Edwards, believes that most prisoners with serious mental illness are either "faking it" or untreatable. During a 2013 panel discussion at the Prison for a legislative committee, Dr. Edwards stated that the majority of prisoners at the Prison, who people outside the Prison perceive as mentally ill, actually have untreatable personality disorders and "don't want to change."
42. As a result of his extraordinary indifference to the mental health conditions of the prisoners he is charged with treating, Dr. Edwards deliberately refuses to diagnose prisoners as having mental illness, even where the prisoners have well-documented histories of such illnesses. Instead, Dr. Edwards commonly diagnoses prisoners as "malingering," meaning the prisoner is supposedly feigning mental illness to obtain some other benefit.
43. Dr. Edwards also engages in a pattern of deliberately discontinuing medications that prisoners have taken for years to treat their mental illnesses. Dr. Edwards regularly discontinues medications without considering the effect it will have on their mental illness.
The Prison's Use Of Solitary Confinement To Address The Behavioral Problems Of Prisoners With Serious Mental Illness
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44. Rather than diagnosing, treating, and monitoring prisoners with serious mental illness, the Prison Defendants use solitary confinement-k~eping prisoners isolated in cells for 22 to 24 hours a day for weeks and even mohths and
I I
years at a time-as a common means for addressing the behavioral problems associated with prisoners with serious mental illness. The Prison Defendants subject prisoners to solitary confinement without regard to whether prisoners' behavior is a product of their mental illness or the effect that solitary confinement will have on their mental health.
45. The Prison has approximately 200 solitary confinement cells located in two "Locked Housing" units. Within Locked Housing there are various degrees of solitary confinement involving different levels of isolation and sensory deprivation. Even the most lenient forms of solitary confinement imposed by the Prison Defendants are detrimental to the health of prisoners with serious mental illness.
46. The cells in Locked Housing are small, concrete single-person cells. 47. The cell doors in Locked Housing are solid metal with a small window and a food slot. Prisoners receive meals through the food slot and eat all of their meals in isolation in their cells.
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48. While in Locked Housing cells, prisoners experience little or no natural light. The cells in Locked Housing have only one small window, some of which are frosted or covered with metal.
49. It is common for prisoners in solitary confinement to hear screaming, crying or other disturbing noises by other prisoners who have serious mental illness and are psychotic or decompensating.
50. Prisoners in solitary confinement experience little human interaction. Prisoners have little ability to speak to or see other prisoners. All prisoners in solitary confinement are placed in restraints whenever they are moved from their cell.
51. Prisoners with serious mental illness who are placed in solitary confinement receive no therapy for their mental illness. The primary contact with mental health staff while they are in solitary confinement consists of weekly rounds by mental health technicians. Each visit during weekly rounds typically lasts no more than a few minutes and is conducted at the prisoner's cell door, where other prisoners and corrections offices can hear what is said. As a result, prisoners with serious mental illness are often reluctant to share their mental health concerns during those rounds. The futility of this process causes prisoners with serious mental illness to suffer additional stress.
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52. The least restrictive level of solitary confinement is known as "Max Population" or Levels 4 and 5 of"Administration Segregation" or "Ad Seg." At
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Levels 4 and 5, prisoners are isolated in their cells at least 22 hours a day five days a week, and 24 hours a day two days a week. The out-of-cell time for a pifisoner confined to these levels consists of one hour per day alone in a dayroom adjoining his cell, and one hour per day in a small outdoor caged area by himself. If a prisoner is not feeling well or does not wake up during the designated one-hour recreation period, which is often the case for prisoners with serious mental illness, the prisoner may not receive his one hour of outdoor time.
53. Prisoners in levels zero (0) through three (3) of Ad Seg are in their cells 23 hours per day five days a week, and 24 hours a day two days per week. The one hour of outdoor recreation time occurs in one of two outdoor areas, depending on the housing unit. One is a caged area linked to other caged areas attached to the housing structure, and the other is a small, cement-walled area that has a metal grate for a roof. At Level 0, prisoners receive no visits, one phone call per month after 30 days of clear conduct, and cannot engage in cell study or hobby, such as art. At Level 1, prisoners may make just two phone calls per month, and are allowed just one visit every other week. At Level 2, prisoners may make just three calls per month and may have just one visit per week.
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54. In a more restrictive form of solitary confinement, referred to as "Restricted Ad Seg," prisoners are kept in their cells 23 hours per day and experience heightened isolation. A prisoner in Restricted Ad Seg is ineligible for phone calls for the first 60 days. Restricted Ad Seg is broken into four levels, A D, with A being the most restrictive. In Levels A and B, prisoners may not make phone calls or have visitors for the duration of time they remain on those levels. Prisoners who advance to Level C are entitled to one, fifteen minute phone call per month to immediate family members only. Prisoners are ineligible for visits until they receive 90 days of clear conduct. Prisoners receive one hour of outside recreation five days a week, however, if a prisoner is not feeling well or does not wake up during the designated one-hour recreation period, he may not receive his one hour of outdoor time.
55. Among the most extreme forms of solitary confinement imposed at the Prison is "Disciplinary Detention," which is better known among prisoners and Prison staff as "The Hole." The Hole is total isolation. Prisoners sent to The Hole are subjected to 24-hour isolation in their cell. Some cells used for The Hole have blacked-out windows, resulting in a total absence of natural light. Prisoners placed in The Hole are prohibited from having any reading materials for the first several days of detention, then subsequently have substantially restricted reading privileges. They cannot make phone calls or have visitors. They cannot
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I
participate in religious services or rehabilitative treatment programs. The~ receive
ti~e no mental health therapy. They receive no indoor or outdoor recreation
whatsoever. The only out-of-cell time given to prisoners in The Hole consists of three, ten-minute showers per week.
56. Although the Prison's formal policies prohibit a prisoner from spending more than 30 consecutive days in The Hole, Prison staff render that rule meaningless by transferring prisoners to other forms of solitary confinement for short periods of time at the end of 30 days and then returning the prisoner to The Hole for another 30 days. The Prison Defendants are aware of this practice.
57. The Prison regularly places prisoners with serious mental illness in all of the forms of solitary confinement described above for weeks and months at a time. Some prisoners with serious mental illness have spent years in various forms of solitary confinement during their time at the Prison.
58. Subjecting prisoners with serious mental illness to these forms of solitary confinement is dangerous to the prisoners' health. Prisoners with serious mental illness who are subjected to solitary confinement have no means of controlling the symptoms of their illness. They are left utterly alone with few positive distractions and, as a result, may obsess on their own disordered thoughts and become increasingly more ill, known as "decompensating." Prisoners with serious mental illness have stated that spending months in solitary confinement at
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the Prison causes them to experience anxiety and paranoia, increased hostbity, and increased depression. Prisoners experiencing auditory and visual hallucinations have stated that their hallucinations become more intense while they are in solitary confinement at the Prison. One prisoner with serious mental illness explained that being placed in solitary confinement makes him feel like a young child locked in a closet with nothing to do and, as a result, he spreads feces on the walls of his cell to keep bad spirits away.
59. Even when prisoners with serious mental illness are able to keep their outward behavior under control, long periods of solitary confinement cause the prisoners to lose their ability to interact with people and they become afraid to reintegrate into the general prison population and society. The Prison Defendants may view such pacification as "success" but, in fact, they are causing long-term harm to the prisoners' mental health.
The Prison's Use Of "Behavior Management Plans" To Punish Prisoners With Serious Mental Illness 60. In addition to solitary confinement, the Prison Defendants also subject prisoners with serious mental illness to "Behavior Management Plans" ("BMPs") that punish prisoners for behavior that is a product of their mental illness, such as self-mutilation and smearing of feces on cell walls. BMPs are an extreme form of punishment in which prisoners are kept in 24-hour isolation and deprived of the most basic elements of civilized life. In 2003, the Montana Supreme Court held
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that BMPs, in conjunction with other aspects of solitary confinement and
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inadequate mental health treatment, violate the Montana Constitution. Re~ardless, the Prison Defendants continue to routinely utilize the practice for prison~rs with serious mental illness.
61. A prisoner on a BMP starts out by having all of his prison clothing removed and being given just a mattress, blanket, and a suicide smock. At the start of a BMP all meals consist of a tasteless loaf of food ("nutraloaf') delivered on a paper towel, and the prisoner is not allowed any running water in his cell. A guard must flush the toilet for the prisoner, and ask for water to wash his hands. In extreme forms of BMPs, prisoners must go to the bathroom through a grate on the floor.
62. Prisoners on BMPs can progress to less punitive levels ofBMPs only by conforming their behavior to prison rules. But for prisoners with serious mental illness this can be impossible, as their illnesses makes it difficult or impossible for them to modify their behavior and they cannot comprehend the "logic" behind the BMP system. As result, BMPs exacerbate the prisoners' mental illness and lead to further punishment for misbehavior.
63. The Prison Defendants place prisoners with serious mental illness on BMPs as a matter of course, without modifying the BMPs in any way to account for the previous failures of the BMPs to correct the prisoner's behavior. BMPs are
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not an evidence-based practice. The Prison Defendants do not track whet er BMPs actually work, or change behavior for specific prisoners or for the population generally.
64. Prison mental health staff do not take steps to prevent prisoners with serious mental illness from being placed on BMPs. In some instances, Prison mental health staff have encouraged the use ofBMPs on prisoners with serious mental illness.
65. Although the Prison's formal policies call for Prison mental health staff to assess a prisoner's mental health status before allowing a prisoner to be placed on a BMP, that process is a sham. Prison policies require mental health staff to certify that "[t]he inmate's present behavior is not the direct result of an Axis I serious mental disorder." Because the Prison's psychiatrist, Dr. Edwards, deliberately refuses to diagnose prisoners as having Axis I serious mental disorders, the BMP certification process is a meaningless "check-the-box" exercise. Even where prisoners are diagnosed with an Axis I disorder, Prison mental health staff conclude that the prisoner's behavior was not a direct result of that disorder. Upon information and belief, Prison mental health staff have never certified that a prisoner's behavior was the direct result of an Axis I serious mental disorder.
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66. Prison mental health staff"clear" prisoners to be placed on B s for six-month periods. During the six-month period, a prisoner can be placed on a BMP without input from mental health staff. During an inspection of the rison by DRM's psychiatric expert, Prison staff could not identify a single instance in which mental health staff intervened to discontinue a BMP.
67. Rather than protect prisoners with serious mental illness from the damaging effects of BMPs, mental health staff sometime encourage the use of BMPs for such prisoners. In one instance, defendant Buck wrote to prison staff that two individuals sentenced as Guilty But Mentally Ill would be "good candidates" for BMPs at the Prison.
The Prison Fails To Properly Address The Health Care Needs Of Prisoners With Serious Mental Illness 68. Prisoners with serious mental illness at the Prison receive little, if any, meaningful interaction with mental health clinicians. The Prison offers group therapy with mental health staff to only a very small percentage of the prisoners with serious mental illness, none of whom are in solitary confinement. An even smaller percentage of prisoners with serious mental illness receive individual therapy at the Prison. 69. For the vast majority of prisoners with serious mental illness, their interaction with mental health staff at the Prison consists of non-confidential weekly cell checks by mental health technicians at the cell door. Prisoners' written
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requests for additional mental health care are regularly denied. The futilit}r of requesting additional mental health care exacerbates prisoners' mental illnesses.
70. The Prison Defendants fail to respond appropriately to threats of suicide by prisoners with serious mental illness. The Prison's most common response to a prisoner expressing thoughts of suicide is to place a prisoner on a BMP. This response causes prisoners to be reluctant to admit to thoughts of suicide and, as a result, increases the risk of suicide.
71. In at least one known instance, Dr. Edwards dismissed a prisoner's statement about a previous suicide attempt, and the prisoner died shortly thereafter of what is believed to be a drug overdose.
72. The Prison does not have an adequate number of trained mental health staff to provide adequate mental health care to its prisoners. The Prison has 19 mental health staff positions to provide services to approximately 300 prisoners with serious mental illness. Many of those positions are perpetually vacaqt. The Prison has had a 75% turnover of its mental health staff during the last two years.
73. The majority of requests for mental health services by prisoners are addressed by the Prison's six mental health technicians. The only educational requirement for the mental health technicians is a high school diploma. Despite the lack of training, qualifications and education these individuals receive, they are
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responsible on the "front lines" for mental health treatment of prisoners with serious mental illness in solitary confinement.
74. Even the Prison's Mental Health Treatment Unit has inadequate therapy and counseling for prisoners fortunate enough to be placed there.
75. The Prison's corrections staff members receive just a four-hour class on mental health issues each year.
Examples Of The Experiences Of Prisoners With Serious Ment~\I Illness 76. Below are examples of the experiences of several prisoners with serious mental illness at the State Hospital and the Prison.
Prisoner No. 1
1
77. Prisoner No. 1 is a 50-year-old who has spent most of his life in 1
correctional institutions and psychiatric hospitals. He has been committed to the State Hospital on seven occasions. In 2006, Prisoner No. 1 was sentenced Guilty But Mentally Ill and given a 15-year sentence to DPHHS. Among the rea~ons the Judge gave for the sentence was that "[t]he Defendant has substance and ll}ental health issues and [DPHHS] is the best facility to address those conditions."
78. DPHHS placed Prisoner No. 1 at the State Hospital, where he: was diagnosed as schizophrenic and put on antipsychotic medications. Prisoner No. 1 resided at the State Hospital's Residential Care Unit for some time, during which
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staff described him as "polite, friendly, cooperative, and socializing appro riately with staff and peers."
79. The attitude of Hospital staff toward Prisoner No. 1 changed after they suspected him of stealing another patient's jewelry. Hospital staff transfe:Ured Prisoner No. 1 to the Hospital's forensic wing. The Hospital's Forensic R¢view Board then voted to recommend that the DPHHS Director transfer Prisoner No. 1 to the Prison. The Acting Director of DPHHS approved the transfer. The ;FRB stated that Prisoner No. l's "mental disease, [s]chizophrenia, has been stabilized with medications, and that he has achieved maximum hospital benefit." The FRB stated, "[I]t is believed his needs will be better served at [the Prison]." Th~ Prison's mental health director, Ms. Buck, gave a different reason for the transfer. She told Prison staff that "the Director ofDPHHS wants to clear out as many GBMI's that they can-which means they will come here. They heard we have the bed space so they want to fill us up!"
80. Prisoner No. 1 arrived at the Prison in 2008. From 2008 to 2012, Prison mental health staff repeatedly acknowledged his diagnosis of schizophrenia and he was prescribed multiple antipsychotic medications. Despite that diC11gnosis, Prison staff placed Prisoner No. 1 in solitary confinement and subjected hitn to BMPs for threatening self-harm. Prisoner No. 1 told Prison mental health staff that he wanted to cry when he was in solitary confinement and that he did not "do hole
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time well." He said that in solitary confinement "all I do is suffer unmitigated hell in these cells all the time."
81. In 2012, Dr. Edwards began meeting with Prisoner No. 1. After their second meeting, Dr. Edwards discontinued Prisoner No. l's prescription for the antipsychotic medication Risperdal. In his notes of the meeting, Dr. Edwards wrote, "I'm rather skeptical that this man has any kind of chronic disorder" and "he is probably not mentally ill either." Six months later, Dr. Edwards wrote, ~'I am
'
absolutely convinced this man is malingering," and decided to taper off Ptjsoner No. l's antipsychotic medications with the goal of discontinuing them completely. Dr. Edwards speculated that Prisoner No. 1 "will act out in some way to supposedly prove his mental illness, but I will alert the whole mental health staff about this at our next meeting."
82. Prisoner No. 1 exhausted his administrative remedies regarding inadequate mental health care at the Prison. In response to Prisoner No. l's appeal, the DOC Director wrote, "my review finds the matter has been given an appropriate level of attention by medical staff. I find no grounds for overtlflming prior decisions."
83. Prisoner No. 1 currently reports having a progressively harder time managing his hallucinations and disorganized thoughts without proper medication.
27

Case 2:14-cv-00025-SEH Document 1 Filed 03/31/14 Page 28 of 54
His is convinced that Dr. Edwards and other mental health staff are torturing him in exchange for large sums of money.
Prisoner No. 2 84. Prisoner No. 2 is a 43-year-old prisoner with a long history of mental illness, including diagnoses for psychotic disorders. Prisoner No. 2 has a lull IQ of 78, which places him in the borderline range of intellectual functioning. He has been admitted to multiple psychiatric hospitals and attempted suicide sev¢ral times. 85. In 2002, a district court judge found Prisoner No. 2 Guilty But Mentally Ill of a felony and misdemeanor, and committed him to DPHHS "for placement at [the State Hospital] for a period of fifteen (15) years." At the State Hospital there was no evidence that Prisoner No. 2 was a danger to other ratients
!
or staff; he participated in required therapy groups, and even resided on the lessrestrictive Residential Care Unit. However, State Hospital staff found Pri~oner No. 2's personal hygiene offensive.
4 86. In 2007, State Hospital staff attempted to place Prisoner No. in a
community group home. When the effort to release to Prisoner No. 2 to tfe
community failed, Hospital staff decided instead to transfer him to the Pri~on. On
July 23, 2007, a DPHHS employee emailed a Prison employee, informing him that Prisoner No. 2 was being transferred to the Prison for "non-complaint [sic]
28

Case 2:14-cv-00025-SEH Document 1 Filed 03/31/14 Page 29 of 54
with treatment." Afterward, on July 26, 2007 the Forensic Review Board voted unanimously to recommend that the DPHHS Director transfer Prisoner No. 2 to the Prison "where it is believed his needs will be better served" because "he has achieved maximum hospital benefit." On August 2, 2007, the acting DPHHS Director issued a memo transferring Prisoner No. 2 to the Prison.
87. Since arriving at the Prison, Prisoner No. 2 has spent over three years in solitary confinement for "bizarre" and "disruptive" behavior. For two months, Prisoner No. 2 was placed in the Prison's MHTU, where mental health staff concluded that, although Prisoner No. 2 was previously diagnosed with s~rious
I I I
mental illness, his problems were behavioral and stemming from immatu~ity and
I
other unknown sources. As a result, Prisoner No. 2 was transferred back fo
solitary confinement. Staff in the Prison's Locked Housing Unit have repeatedly tried to get Prisoner No. 2 moved back to the MHTU, but MHTU staff refused to accept him.
88. Prison staff have continuously refused to consider Prisoner N<!>. 2's mental illness and developmental disabilities when addressing his behavior. Prison staff have placed Prisoner No. 2 on BMPs approximately 25 time fpr acts including actual and threatened self-harm, smearing feces in his cell, banging his head until it bled on his cell door while asking for real food instead of nut~aloaf, crying and saying people on the floor were talking to him, attempting suicide,
29

Case 2:14-cv-00025-SEH Document 1 Filed 03/31/14 Page 30 of 54

cutting himself with a broken deodorant stick, and hitting his cell door an

screaming "help me help me" for 20 minutes. Prisoner No. 2 has spent Weeks in

24-hour isolation in disciplinary detention similar behaviors.

89. In 2012, Prison mental health staff discontinued Prisoner No.Ws

antipsychotic medications, which he had taken for many years, after he

temporarily refused to take them. Prisoner No. 2's subsequent requests fdr

~ilty medications were denied. While unmedicated, Prisoner No. 2 was found

of

multiple rule violations for bizarre behavior and self-harm and subjected ~o BMPs,

disciplinary detention and administrative segregation.

90. In July 2012, Dr. Edwards first met with Prisoner No. 2 and

concluded, "In my opinion this man is simply malingering." Dr. Edwards wrote, "[if] he is able to articulate in a more appropriate fashion what he thinks i~ wrong

with him it might be appropriate to try him on an antidepressant. Howev r, today

he was bordering on being out of control and so in the end I did not start 1m on

anything at this time."
I
91. In a 2013 meeting, Dr. Edwards laughed at Prisoner No. 2 aft~r he
voiced negative symptoms from being unmedicated. When Prisoner No. i called

Dr. Edwards a "prick," Dr. Edwards threatened to send Prisoner No. 2 to 44-hour

lock down unless he apologized, and diagnosed Prisoner No. 2 as malingering and
!
removed Prisoner No. 2 from his medication caseload.

30

Case 2:14-cv-00025-SEH Document 1 Filed 03/31/14 Page 31 of 54
Prisoner No. 3 92. Prisoner No. 3 is 33 years old and has been on medications ftjr mental health issues since he was a child. He has received diagnoses of serious rµental illness throughout his life, including major depressive disorder. 93. Prisoner No. 3 has a long history of extreme self-harm He h~s cut himself on numerous occasions, resulting in hospitalizations and near loss of life due to blood loss. In addition to cutting himself, he has also bitten through his own skin, ripped stitches, and reopened wounds with foreign objects. Pri~oner No. 3 described self-harm impulses as coming over him "like a wave" thak he is unable to resist. 94. Prisoner No. 3 has been transferred between the State Hospital and the
I
Prison many times. In 2006, Prisoner No. 3 was found Guilty But Mentallly Ill for a parole violation and sent to the State Hospital. During his stay at the Hqspital he engaged in several instances of self-harm, including cutting himself with' razor and jamming screws and pencils into his arms and wounds, and sucking atid biting on the injured area.
95. In 2006, the Forensic Review Board recommended that Prisor~.er No. 3 be transferred to the Prison, concluding that he "has showed no overt indi¢ations of mental disease or defect." The DPHHS Director adopted the FRB's recommendation and concluded that Prisoner No. 3 was "in need of long t.erm
31

Case 2:14-cv-00025-SEH Document 1 Filed 03/31/14 Page 32 of 54
behavior management in a more secure environment that can better prote t him
from the everyday items he uses to harm himself with" and recommende . that the
Prison continue his medications.
96. Prisoner No. 3 spent two months in the MHTU at the Prison. !While in the MHTU, he filled out a "treatment planning worksheet," in which he li~ted the
following ways Prison mental health staff could help him: "Be there to talk to me
when I'm having problems. Groups with homework. Give me stuff to dq so I can
keep myself and my mind busy."
97. Instead of giving Prisoner No. 3 the simple forms of help he
requested, Prison staff transferred him to solitary confinement because th¢ MHTU could not manage his self-harm behavior. Despite his sentence of GBMI ~entence
I i
and previous diagnoses of mental illness, Ms. Buck concluded that Priso~r No. 3
had "no mental health history that would preclude an ad seg placement." ;
!
98. At one point, Prison mental health staff discontinued Prisone~ No. 3's
i
!
medications, based on the staffs conclusion that "he appears to do as weli/poorly,
I
i
whether on or off Rx."
99. The Prison's most common response to Prisoner No. 3's acts of self-
harm is to place him on a BMP. He has spent significant periods of time pn BMPs
in 24-hour isolation, often in a padded cell. Prison staff have used force,
including pepper spray, repeatedly on Prisoner No. 3 to extract him from his cell
32

Case 2:14-cv-00025-SEH Document 1 Filed 03/31/14 Page 33 of 54
when he is engaging in self-harm. The longer he spent in solitary confin ment and on BMPs, the worse his self-harm episodes became.
100. In July 2011, Prisoner No. 3 stated to Prison mental health sta:ffthat he had "been in locked housing for way too long" and was "wound up," "stressed," and worried about doing "something stupid" that would get hitn into trouble.
101. Upon being moved out of solitary confinement, in August 2011, Prisoner No. 3 murdered another prisoner. Prisoner No. 3 was found guilty of homicide and sentenced to the DOC for life without the possibility of par~le.
Prisoner No. 4 102. Prisoner No. 4 was diagnosed with bipolar disorder and schiz~phrenia and received various medications for those illnesses before arriving at the J;>rison. When the Judge sentenced him to the Prison, she recognized Prisoner No. .!l's mental health issues and "highly recommend[ed] that he be considered for placement in the mental health block at the Prison "because that seems to me that that's going to be the best pace for [him]." The Judge told Prisoner No. 4, '"I would like to see things get turned around for you . . . . [Y]ou need ... to find a person at [the Prison] that you can rely on, a person that is an employee of the [P]rison in the mental health block to be the person you look to getting answers as to how you need to act ...."
33

Case 2:14-cv-00025-SEH Document 1 Filed 03/31/14 Page 34 of 54

103. Despite the Judge's express recommendation, Prisoner No. 4 as

never placed in the MHTU at the Prison. Prison records suggest that Priso,
I
4 spent more than half of his time at the Prison in solitary confinement. T~e
! !
Prison's mental health staff stated that Prisoner No. 4 had "no known histdry of
i
psychiatric problems or symptoms that would preclude Administrative Se~regation

for inappropriate behavior."

104. Within weeks of arriving at the Prison, Prisoner No. 4 told st~ffthat

he was hearing voices telling him to do things to himself and he threatene4 to kill

himself. Shortly thereafter, Prisoner No. 4 was disciplined for smearing febes on

himself, but a Prison therapist concluded that the conduct was not the resu t of a

serious mental illness. A little more than a month later, Prisoner No. 4 wa

disciplined for banging his head against the wall and spreading feces on hifiself.

i

'

In response, Prison mental health staff authorized placing Prisoner No. 4 itj solitary

I
confinement and authorized the use of a BMP. During his seven months at the

prison, Prisoner No. 4 met with Dr. Edwards just once, more than four mo111ths
I
after his arrival.

105. Seven months after arriving at the Prison, Prisoner No. 4 was found

dead in his cell as a result of hanging.

Prisoner No. 5

34

Case 2:14-cv-00025-SEH Document 1 Filed 03/31/14 Page 35 of 54
106. Prisoner No. S is 62 years old and was diagnosed with multiple
serious mental illnesses before arriving at the Prison, including schizophr nia.
Prisoner No. S hears the voice of a dog named Gene who directs him to h~rm
I '
himself. Prisoner No. S has repeatedly attempted to take out his own eyes)
107. Despite his previous diagnoses of serious mental illness, the ~rison
I
Defendants refuse to acknowledge that Prisoner No.Sis mentally ill. Pri&on
!
mental health staff have described Prisoner No. S's attempts to take his O\\fll eyes
out and swallow objects as "manipulative" and "characterological," rather !than
I
symptoms of mental illness. In 2012, Ms. Buck dismissed Prisoner No. S'~
statements about suffering visual hallucinations, stating: "it was obvious tliat he
was making this stuff up as he went along - he isn't delusional, it was deliperate."
I
108. In 2012, Prisoner No. S began meeting with Dr. Edwards, wht wrote,
!
"I was informed that at some point the state hospital thought he was schiztjphrenic,
I I
however he does not appear to me to have anything that would necessarily lbe I ',
consistent with schizophrenia." Dr. Edwards also wrote, "He claims to hate an
imaginary friend that he talks too [sic] and I'm highly skeptical of such c01~1plaints
I I
as this and would really not see this as being a thought disorder i.e., any ki~d of
1,
psychotic symptomatology. I would rather feel that he is in fact malingerhjtg."
I I I
109. In December 2012, Dr. Edwards discontinued all of Prisoner *o. S's
medications for noncompliance without meeting with Prisoner No.Sor
35

Case 2:14-cv-00025-SEH Document 1 Filed 03/31/14 Page 36 of 54
investigating possible reasons for noncompliance. Prisoner No. S's stated reason refusing to take his medications was "the outerspace people and Gods and ~ don't
!
need any mental health medication." Subsequently, Prisoner No. S receivtjd
approximately 40 disciplinary violations, which Prison custody staff attrib¥ted to
I
"medication noncompliance."
i
110. Throughout 2013, Prisoner No. S engaged in self-harm and e~ibited
'
behavior that reflects paranoid and delusional beliefs. In April 2013, Dr. ~dwards
!
put him on an antipsychotic medication to treat Prisoner No. S's behavior, ~ather
!
than a mental illness. Dr. Edwards described Prisoner No.Sas talking "ndnsense
!
in an effort to try to fake being psychotic." Dr. Edwards went on to explaih,
"[Prisoner No. S] is current in the Max for smearing feces all over his wall that he
claims was 'an alien spaceship.' Here again though, if one does not take i to
account the content of what he says, there is no evidence of a thought diso der....
I told him that I would see what his behavior is next week and if he stops
i
threatening suicide, stops being manipulative, stops acting out that I would
consider switching him to oral Haldol."
111. Prison mental health staff have repeatedly approved standard
disciplinary measures for Prisoner No. S's behavior for many years. Since! 200S,
Prisoner No. S has spent years in solitary confinement at the Prison. He reports
feeling like a "young kid locked up in a closet" when he is in solitary. He ~preads
36

Case 2:14-cv-00025-SEH Document 1 Filed 03/31/14 Page 37 of 54
feces in his cell to "keep bad spirits away," and engages in self-harm. He as been repeatedly disciplined and restrained for self-harm and behavior such as s earmg feces, drinking Ajax, and swallowing glass.
Prisoner No. 6 112. Prisoner No. 6 has long-standing diagnoses of mental illness, including bi-polar disorder, post-traumatic stress disorder, and major depnpssion.
I I
For many years, Prisoner No. 6 has taken lithium for his bi-polar disorder,las well
I
as antidepressants and antipsychotic medications. 113. Prisoner No. 6 was assigned to the Prison's MHTU on a few
occasions, but his requests to return to the MHTU were denied because Prison staff
I
concluded that his "mental illness diagnosis does not meet the criteria."
I
114. The Prison Defendants have repeatedly ignored Prisoner No. ~'s
mental illnesses when addressing his behavior and making his housing assignments. Prisoner No. 6 has spent more than eight years in solitary confinement. In solitary confinement, Prison mental health staff have obs rved Prisoner No. 6 decompensating. After years in solitary confinement, Pris ner No.
I
6 has expressed concern regarding his ability to reintegrate into the genera[ prison population.
115. Prison staff have repeatedly placed Prisoner No. 6 in 24-hourlisolation
i
on BMPs for threatening to slice his throat, threatening to stab himself wit~ pens,
37

Case 2:14-cv-00025-SEH Document 1 Filed 03/31/14 Page 38 of 54
biting his arm and wrist and smearing the blood on the floor "to make the ituation look worse than it actually was," smearing blood on his cell, and writing a message in blood about wanting to die. Prison staff have used a tazer gun and pepp r spray to force Prisoner No. 6 to come out of his cell.
I
116. Prison mental health staff refuse to acknowledge the existenc¢ of I i
Prisoner No. 6's mental illness. In 2012, mental health staff concluded tha[t
!
Prisoner No. 6 was biting and picking at his arm "for the purpose of mani~ulating I
staff and receiving mental health services at his leisure." They also concl~ded that his act of smearing blood on walls was "malingering his depression to gai~ attention."
11 7. Prison staff are deliberately indifferent to the harmful effect o solitary confinement on Prisoner No. 6. In a 2011 document, Prison staff wrote th t they were placing Prisoner No. 6 in solitary confinement with the goals of: "le~m to deal with depression," "learn to refrain from this type of behavior by workfng on
I
his 'people skills' and thinking before he reacts," and finding ways to "occµpy his
I
mind." 118. After meeting with Prisoner No. 6, Dr. Edwards wrote, "I thitjk most
of his complaints were involving being in locked housing but I explained t~ him that there wasn't anything I could do about that."
38

Case 2:14-cv-00025-SEH Document 1 Filed 03/31/14 Page 39 of 54
!
119. When Prisoner No. 6 expressed frustration that Dr. Edwards ivas not
!
trying to get to know him, Dr. Edwards wrote: "getting to know him is reaJ~ly not
my job but rather medication management is what my job is."
' i
120. Dr. Edwards' approach to medication management consisted lof
~ental discontinuing the medication Prisoner No. 6 had been using to control his
I
illness. In 2012, Dr. Edwards concluded that Prisoner No. 6 did not have ~ipolar
disorder, despite previous diagnoses of that illness. Dr. Edwards then disclontinued
i
Prisoner No. 6's lithium prescription. Prisoner No. 6 repeatedly asked to ~e
restarted on lithium. In one request he wrote, "I need help not put on a sh~lf or
Edw~ds really put in a cell 24/7 to hurt and feel hopeless and frustrated." lli.
characterized those requests as "gamey" manipulation and wrote to Prison~r No. 5, "Unless you have evidence of mania (and you never have) I will not rest~ you on lithium" and "I will not restart you on Lithium because you do not have B~p' olar
disorder." In his notes, Dr. Edwards wrote, "I think this man has too mucll suicide
potential to be placed on something that would kill him anyway."
Prisoner No. 7
i
121. Prisoner No. 7 is 70 years old and has received several mental illness
diagnoses during his life, including schizophrenia, bi-polar disorder, majorl
I I
depression and personality disorders
39

Case 2:14-cv-00025-SEH Document 1 Filed 03/31/14 Page 40 of 54

122. Prisoner No. 7' s mental illness manifests itself in, among oth r things,

numerous acts of extreme self-mutilation. Over many years, Prisoner No. 7 has

swallowed safety pins, razor blades, paper clips, needles, spoons, nails, ta ks. He

has also inserted objects into his penis, including paper clips, foil and cop

Prisoner No. 7 has had over 30 stomach surgeries for swallowing foreign

123. Prison staff view Prisoner No. 7's acts of self-harm as "mani

and "not the result of serious mental illness." Prison staff have housed Pri oner

No. 7 in solitary confinement for several years, and have placed him on B s

I

numerous times in response to his acts of self-harm.

I

I
124. From approximately 2005 to 2012, Prisoner No. 7 was prescdbed a
I

combination of medications that worked well for him, including Prozac, Llthium,

Seroquel and Propranolol. During this time he engaged in few self-harm ehaviors

and worked as a janitor in the prison.

125. This all changed when Dr. Edwards began seeing Prisoner N . 7.

Despite Prisoner No. 7's consistent, historic diagnoses of major depressio , Dr.

Edwards concluded: "Axis I: Chart states major depression, but I don't see any
evidence for that." Three months later, Dr. Edwards diagnosed Prisoner N~. 7 with

'1

no Axis I mental health disorder.

I

I
126. Jn December 2012, Dr. Edwards wrote "it's my understandin~ that

[Prisoner No. 7] used to be quite a behavioral problem and he has been beter
I

40

Case 2:14-cv-00025-SEH Document 1 Filed 03/31/14 Page 41 of 54

i
behaviorally on this particular med regimen." Despite this, the following pionth
I
Dr. Edwards discontinued all of Prisoner No. 7's medications because he ~ad
I
i
failed to comply with "pill pass" requirements. Prisoner No. 7 subsequently I I
i
apologized for not going to pill pass and requested that his prescriptions bf

restarted. Dr. Edwards restarted and then discontinued several of Prisone~ No. 7's
i

medications over the following months.

I

127. Without his medications, Prisoner No. 7 began engaging in 1elf-hann,

including swallowing paperclips in 2013. In response, Dr. Edwards note~ "in the
I
past he has been so destructive to himself at this facility that he has cost ttje
!
taxpayers hundreds of thousands of dollars. It's my understanding that he actually

has so much scar tissue that he cannot be operated again so at this point a d time
I
they're simply monitoring where the paperclips are in his GI track." Dr. $dwards
i
concluded, "I don't believe that any of these medications he has ever bee9 on have
I
been helpful to him. . . . I do not think that any kind of medication is goi~g to be

of much benefit and the most benefit that he would get is a placebo effect
Obviously I am not able to stop him from doing mutilation stop [sic] mu~ation

such as he recently did in regards to swallowing paper clips."
I
128. When Prisoner No. 7 went to the Deer Lodge Medical Centet for
' i
abdominal pain from swallowing paper clips, the physician there prescribtd both

antidepressant and antipsychotic medications for Prisoner No. 7.

41

Case 2:14-cv-00025-SEH Document 1 Filed 03/31/14 Page 42 of 54
129. In August 2013, Prisoner No. 7 was denied parole. In the rep~rt to the
f I
parole board, his case manager stated, "I am unable to support a release at his time without an extensive mental health component and an updated positive psychological report."
Prisoner No. 8 130. Prisoner No. 8 was 23-years old when he was sent to the PrisJn in February 2013. Prior to arriving at the Prison, he had spent two years at I
me~tal Yellowstone County Detention Facility ("YCDF"), where medical and
health staff noted that he suffered from anxiety and depression and prescri~ed him
antidepressants. 131. In June 2011, Prisoner No. 8's mother died in a house fire. A few
days later, he attempted to commit suicide by slashing his neck twice with ,a razor at YCDF. Medical reports indicated that he lost approximately one liter o( blood as a result of his wounds. During the months afterward, Prisoner No. 8 co' tinued to tell medical staff that he suffered from growing depression and anxiety.
132. Upon arriving at the Prison, Prisoner No. 8 informed medical and
I
mental health staff of his suicide attempt, that he suffered from mental illnbs, that
II
he believed he had bi-polar disorder and schizophrenia, and that he had be~n
I
prescribed several medications for his mental illness. Nevertheless, Priso9 mental health staff determined that he had "no significant" mental health needs.
42

Case 2:14-cv-00025-SEH Document 1 Filed 03/31/14 Page 43 of 54
i
!
133. Prisoner No. 8 first met with Dr. Edwards in March 2013. Inihis
I
meeting notes, Dr. Edwards dismissed the seriousness of Prisoner No. 8's buicide
~O attempt. He wrote: "[Prisoner No. 8] reports that he attempted suicide in 11 by
I
cutting his throat when his mother dies [sic]. However, I actually couldn' even

see a scar so it must not have been very serious."

134. In May 2013, just three months after arriving at the Prison, P isoner

No. 8 was placed in solitary confinement for 90 days as a result of rule vi1lations.

In June 2013, Dr. Edwards met with Prisoner No. 8, but made no mention lin his
I ! I
meeting notes of Prisoner No. 8 suffering from depression or other mental

illnesses. However, Dr. Edwards wrote, "I am going to have one of the teths count
t'I
his meds to make sure he has the right number within the next week or so.
i i
135. Prisoner No. 8 was released from solitary confinement on Au~ust 14,
I I
2013. Nine days later corrections officers found him dead in his cell. Alt~ough no
I
cause of death has been announced, medical staff who attempted to resuscrtate

Prisoner No. 8 were concerned that he had overdosed on drugs.

'

The Prison Defendants Are Deliberatel Indifferent To The Me ical

Needs Of Prisoners With Serious Mental Illness

I

treatme~t 136. All of the defendants are well-aware that the Prison's

and

care of prisoners with serious mental illness does not satisfy constitutional!

requirements. In its 2003 decision in Walker v. State, 68 P.3d 872 (Mont. f003),
I
the Montana Supreme Court made it very clear that the Prison has a consti~tional
I

43

Case 2:14-cv-00025-SEH Document 1 Filed 03/31/14 Page 44 of 54

I
obligation to provide prisoners with appropriate mental health treatment a~d to
!
'
eliminate disciplinary practices that exacerbate prisoners' mental illnesses.I The
I
Court concluded that the Prison's "behavior management plans" and livin~

conditions constitute cruel and unusual punishment when they exacerbate jhe

prisoner's mental health condition.

I

137. In 2009, the DOC faced another lawsuit, Katka v. State, No. DV

2009-1163 (1st Jud. Dist. Ct., Lewis and Clark Co.) challenging the Prison s

treatment and discipline practices for juveniles with mental illness. The D C

resolved Katka by entering into a 2012 settlement agreement requiring the Prison

to implement changes regarding its housing and treatment of prisoners wit serious
i
I
mental illness and treatment of suicidal prisoners. Throughout discovery i~ that
I
case, Prison officials heard from mental health experts addressing the defi4iencies

in the Prison's use of solitary confinement and inadequate mental health tr atment.

138. The Prison Defendants know that numerous national standard
I
prohibit the practices they are engaging in with respect to prisoners with 4ental
I
illness.

139. National Commission on Correctional Health Care Standards for

Mental Health Services in Correctional Facilities, MH-E-07 states: "Inma es who
I
are seriously mentally ill should not be confined under conditions of extreipe

44

Case 2:14-cv-00025-SEH Document 1 Filed 03/31/14 Page 45 of 54
i

isolation." The Prison was accredited by the National Commission on Coiectional

Health Care in 2011.
i
140. American Correctional Association Standards for Adult Corr,ctional
Institutions 4-4249 states: "Total isolation as punishment for a rule violati~n is not

an acceptable practice."

I

I
141. American Bar Association Treatment of Prisoner Standards, ~3-6:11,

i
states: "Prisoners diagnosed with serious mental illness should not be housled in
!

settings that may exacerbate their mental illness or suicide risk, particularly in

settings involving sensory deprivation or isolation."
!
142. Society of Correctional Physicians' Position Statement on Re~tricted

Housing of Mentally Ill Inmates states: [P]rolonged segregation of inmate~ with
I

i

serious mental illness, with rare exceptions, violates basic tenets of mentalihealth

exclude~ treatment. Inmates who are seriously mentally ill should be either

from

I

prolonged segregation status (i.e., beyond 4 weeks) or the conditions ofthJir I

confinement should be modified in a manner that allows for adequate out-~If-cell

i
structured therapeutic activities and adequate time in an appropriately desirned

outdoor exercise area." Several other related standards exist in addition tolthose

'1

listed in this Complaint.

I

143. In addition, Prisoners with serious mental illness regularly re4uest and
grieve the level of mental health care they are provided, including the neg~tive
I

45

Case 2:14-cv-00025-SEH Document 1 Filed 03/31/14 Page 46 of 54

I
impact of isolation, mental health staff discontinuing their needed medications and
~ublicly mental health staff ignoring previous diagnoses. In 2012 alone, Ms. Buck
I
stated that mental health staff answered over 2,000 mental health requests.I Several
I I
prisoners have appealed the inadequacy of the mental health treatment ther receive

to the Prison Warden and ultimately to the DOC Director.

144. The Prison is regularly contacted by family members of priso ers with

serious mental illness begging for their loved one to be put back on neede

medications discontinued by Prison mental health staff. All of the Prison

Defendants are aware of this.

145. In addition, DRM has repeatedly informed the Prison official~' of the
I I '
serious deficiencies in the Prison's treatment of prisoners with serious me1tal

I

illness.

I

146. On February 26, 2014, DRM sent Director Batista and Directfr Opper

!
a letter describing all of the facts alleged in this Complaint. To DRM's
I
knowledge, to date, neither DOC nor DPHHS has made any modifications! in their
!
treatment of prisoners with serious mental illness.

COUNT I Denial of Procedural Due Process in Violation of the Fifth an
Fourteenth Amendments to the United States Constitution

147. DRM incorporates the allegations of paragraphs 1-146 as if lly restated here.

46

Case 2:14-cv-00025-SEH Document 1 Filed 03/31/14 Page 47 of 54
148. Individuals who have been found by a court to be Guilty But ~entally
I
Ill and committed to the custody of DPHHS possess a liberty interest to bel free
i I
from arbitrary transfers out of the State Hospital and into other facilities, 'then the
I
result of such transfers will be detrimental to the GBMI individual's custo~y, care,
i
and treatment needs.
I
149. The GBMI individual's liberty interest arises through statutoo/ and
!
constitutional law. For example,§ 46-14-312, MCA requires the Directo~ of
I I
DPHSS to transfer individuals sentenced GBMI to the Prison only if the Ptison
I i
"will better serve the [patient's] custody, care and treatment needs," and o*ly after
I
due consideration of the recommendations of the professionals providing tteatment
I
to the defendant and recommendations of the professionals who have eval+ated the
I
defendant. Section 53-21-142(8), MCA, further guarantees that individuais who
I
are committed to the State Hospital will have "the least restrictive conditio~s
I
necessary to achieve the purpose of commitment;" conditions can "restrict the
patient's liberty only to the extent necessary and consistent with the patien 's
treatment need, applicable requirements of law, and judicial orders." The ighth
Amendment to the U.S. Constitution protects GBMI individuals from crue and
I
I
unusual punishment, including the intentional deprivation of necessary meptal
health treatment.
47

Case 2:14-cv-00025-SEH Document 1 Filed 03/31/14 Page 48 of 54
I
150. As described above, GBMI individuals are arbitrarily transferred out of the State Hospital, in violation of law, and without proper notice and a flair opportunity to challenge the transfer decision. These arbitrary transfers infvitably
i
result in the intentional, cruel and unusual deprivation of necessary mentall health treatment to GBMI individuals, under more restrictive conditions.
151. By arbitrarily transferring individuals sentenced Guilty But Ill to the Prison without due consideration of individuals' custody, care an treatment needs, and without fair notice and an opportunity to be heard, d fondants Opper and Redfern deprive those individuals of procedural due process in violation of the Fourteenth Amendment to the United States Constitution.
COUNT II Cruel and Usual Punishment in Violation of the
Eighth Amendment to the U.S. Constitution 152. DRM incorporates the allegations of paragraphs 1-151 as if lly restated here. 153. By their policies, practices, and acts, the Prison Defendants v~olate the
I i
right of prisoners with serious mental illness to be free from cruel and un~sual
Constitu~on, punishment as guaranteed by the Eighth Amendment to the U.S.
enforceable through 42 U.S.C. § 1983.
48

Case 2:14-cv-00025-SEH Document 1 Filed 03/31/14 Page 49 of 54

154. As a matter of policy and practice, the Prison Defendants imppse
I
periods of solitary confinement and other forms of punishment upon prisofers with
'
serious mental illness that lead to the deterioration of their mental health. I
i
155. As a matter of policy and practice, the Prison Defendants fall ~o
I
provide adequate medical care to prisoners with serious mental illness, whtch leads

to the deterioration of the prisoners' mental health.

156. The Prison Defendants have long been aware of deleterious

consequences of these conditions of confinement that they impose on pris ners

with serious mental illness, but have failed to take reasonable corrective a tion.

157. By imposing these conditions of confinement while being aw re of

the resulting deleterious effects, the Prison Defendants are acting with deli

indifference to the serious medical needs of, and the substantial risk of ha to,

prisoners with serious mental illness.

COUNT III

Violation of the Americans With Disabilities Act

I

158. DRM incorporates the allegations of paragraphs 1-157 as if1lly

!

re~~~.

I

159. DRM's constituents are qualified individuals with disabilitieslas

defined in the Americans with Disabilities Act ("ADA"). They have men*l

impairments that substantially limit one or more major life activity, including but
' i
not limited to thinking, concentrating, interacting with others, and controlltng their
!

49

Case 2:14-cv-00025-SEH Document 1 Filed 03/31/14 Page 50 of 54

behavior. As state prisoners, all of DRM's constituents meet the essential

eligibility requirements for receipt of services or the participation in progr~ms or

I

activities provided by the DOC.

I

I

160. The DOC is a public entity as defined under Title II of the AJA, 42
I I
U.S.C. § 12131(1)(B).

i
161. The Prison Defendants knowingly and consistently discrimin4tes
I
against mentally disabled prisoners by failing to provide them with reasonible

accommodation for their disabilities and punishing them for behavior that s a

product of their disability.

162. By placing prisoners with serious mental illness in solitary

confinement, the Prison Defendants have denied prisoners with serious m tal

illness the benefits of the facility's services, programs and activities, inclu ing

education, programming, recreation, exercise, and mental health treatment and

services, thus discriminating against DRM' s constituents on the basis oft ir

disability in violation of 42 U.S.C. § 12132. Discrimination against priso ers with

serious mental illness occurs particularly because such prisoners cannot re eive

metal health services sufficient to counteract the effects solitary confinem nt,

behavior management plans, and other forms of punishment have on ment~l! ly ill

prisoners which is distinct from the impact it has on prisoners who are not I~entally

I

ill.

! !

50

Case 2:14-cv-00025-SEH Document 1 Filed 03/31/14 Page 51 of 54
163. The Prison Defendants discriminate against prisoners with seiious
mental illness on the basis of their disabilities. The Prison Defendants rouhnely
warehouse prisoners with serious mental illness in solitary confinement. ~laintiff
I
believes discovery will show that the State Prison Defendants disproporti9nally
place prisoners with serious mental illness in solitary confinement.
164. By placing prisoners with serious mental illness in solitary
confinement and imposing behavior management plans and other forms of
punishment, the Prison Defendants (a) have failed to furnish reasonable !
I
accommodation to prisoners with disabilities; (b) punish prisoners with serious
mental illnesses for disability-related conduct; and (c) deprive prisoners Jith
!
mental illnesses of access to adequate mental health service.
COUNT IV Violation of Section 504 of the Rehabilitation Act of 1973
I
165. DRM incorporates the allegations of paragraphs 1-164 as if rlly
restated here.
I
166. DRM' s constituents are qualified individuals with disabilitie~ as
defined in Section 504 of the Rehabilitation Act of 1973. They have meJa1
! i
impairments that substantially limit one or more major life activity, inclu~ing but
not limited to thinking, concentrating, interacting with others, and contro~ling their
behavior; they have records of having such an impairment; or they are reiarded as
having such an impairment. As state prisoners, all of DRM' s constituent$ meet the
51

Case 2:14-cv-00025-SEH Document 1 Filed 03/31/14 Page 52 of 54

essential eligibility requirements for receipt of services or the participatiod in
!
programs or activities provided by the DOC.
167. The DOC administers a program or activity that receives federal
financial assistance.
168. The Prison Defendants discriminate against mentally disableq
I
prisoners by failing to provide reasonable accommodation for their disabilities.
! I I
169. The Prison Defendants discriminate against mentally disabled
prisoners solely on the basis of their disabilities in violation of Section 504.
170. In placing prisoners with serious mental illness in solitary
confinement, the DOC Defendants have denied prisoners with mental illn~ss the
benefits ofthe facility's services, programs and activities, including education,
programming, recreation, exercise and mental health services, thus discriniinating
against DRM's constituents on the basis of their disability in violation of ~9 U.S.C.
§ 794.

for~ PRAYER FOR RELIEF
WHEREFORE, plaintiff Disability Rights Montana, Inc. prays

i
order

and judgment in which this Court:

A. Exercises continuing jurisdiction over this action;

B. Issues declaratory judgment that the DPHHS Defendants' act~ violate
I
the prisoners' rights to due process protected by the U.S. Constitution and ~hat

52

Case 2:14-cv-00025-SEH Document 1 Filed 03/31/14 Page 53 of 54
I
these acts and omissions continue to cause an ongoing risk of the violation] of those
rights;
'
C. Issues declaratory judgment that the Prison Defendants' acts tiolate
! !
the Eighth Amendment to the U.S. Constitution, and that these acts and o9iissions continue to cause an ongoing risk of the violation of those rights;
D. Issues declaratory judgment that the Prison Defendants' acts I constitute discrimination in violation of the Rehabilitation Act, 29 U.S.C. §794,
I
and the Americans with Disabilities Act of 1990, 42 U.S.C. §12132;
E. Issues injunctive relief to stop the constitutional and statutory!
violations described above, including injunctive relief that does the followtng: 1. Requires the DPHHS Defendants to take immediate st~s that
ensure that individuals sentenced Guilty But Mentally Ill to the Departmebt of
! I
Public Health and Human Services receive adequate due process prior to transfer to the Montana State Prison;
2. Requires the Prison Defendants to take immediate step* to
I
ensure that individuals with serious mental illness incarcerated at the Motitana State Prison receive constitutionally adequate mental health care;
3. Enjoins the Prison Defendants from placing prisoners 'fith
serious mental illness in solitary confinement;
53

Case 2:14-cv-00025-SEH Document 1 Filed 03/31/14 Page 54 of 54

F. Retains jurisdiction of this case until Defendants have fully c~mplied !
with the orders of this Court, and there is a reasonable assurance that Defepdants
i
will continue to comply in the future absent continuing jurisdiction;
G. Awards reasonable attorneys' fees, litigation expenses, and cqsts
pursuant to 42 U.S.C. 1988, 42 U.S.C. §12205 and/or 42 U.S.C. §794a
H. Orders all other relief the Court deems appropriate.

Dated: March 28, 2014

/s/ Kyle A. Gray HOLLAND & HART LLP
Attorneysfor Plaintiff Disability Rights Montana, Inc.

54

 
 FILED 
 Case 2:14-cv-00025-SEH Document 33 Filed 07/24/14 Page 1 of 10
JUL 2 4 2014
Cieri<, u.s District Court 

District Of Montana 
 Helena 


IN THE UNITED STATES DISTRICT COURT 
 FOR THE DISTRICT OF MONTANA 
 BUTTE DIVISION 


DISABILITY RlGHTS MONTANA, INC.,
Plaintiff,
vs.
RlCHARD OPPER, in his official capacity as Director of the Montana Department of Public Health and Human Services, et a!.,

CV 14-25-BU-SEH
MEMORANDUM AND ORDER

Defendants.

INTRODUCTION This case arises from what are claimed to be deficiencies in the State of

Montana's implementation of certain statutes related to the sentencing and commitment of persons convicted of a crime who are determined under Montana

-1­

Case 2:14-cv-00025-SEH Document 33 Filed 07/24/14 Page 2 of 10
law to be "suffering from a mental disease or defect or developmental disability that rendered the defendant unable to appreciate the criminality of the defendant's behavior or to conform the defendant's behavior to the requirements of law."\
Such persons are characterized in the Complaint as Guilty But Mentally III
(GBMI). Defendants, Richard Opper (Opper), current Director of Montana Public
Health and Human Services (DPPHS), and John Glueckert (Glueckert), the present Administrator of the Montana State Hospital (State Hospital), are named in a single count of the Complaint, Count 1. That Count relates to events described in Paragraphs 77-101 involving three unnamed persons identified only as Prisoner No.1, Prisoner No.2 and Prisoner No.3. Prisoner No.1 was sentenced GBMI in 2006 and transferred to the Montana State Prison in 2008. Prisoner No.2 was sentenced in 2002 and transferred to the Montana State Prison in 2007. Prisoner No.3 was sentenced in 2006 and transferred that same year. Events related to the transfer of each are found in Paragraph 79 (Prisoner No.1), Paragraph 86 (Prisoner No.2), and in Paragraphs 94 and 95 (Prisoner No.3).
I Mont. Code Ann. § 46-14-311 (1) (2013). -2­

Case 2:14-cv-00025-SEH Document 33 Filed 07/24/14 Page 3 of 10
Opper and Glueckert have moved under Fed. R. Civ. P. 12(b)(6) and 8(a) to dismiss.2 The motion is opposed.3
CLAIM The claim against Opper and Glueckert asserted to rise to the level of a liberty interest with federal due process protection under the Fourteenth Amendment is that "[i]ndividuals who have been found by a [Montana] court to be Guilty But Mentally III and committed to the custody of DPHHS possess a liberty interest to be free from arbitrary transfers out of the State Hospital and into other facilities, [namely, the Montana State Prison] when the result of such transfers will be detrimental to the GBMl individual's custody, care, and treatment needs.,,4
PRAYER FOR RELIEF The relief sought is direct and specific. No personal liability relief against Opper or Glueckert is claimed. Nor does Plaintiff seek damages for alleged past wrongs. It, likewise, does not challenge the validity of the state statutory program governing sentence of Prisoners No.1, No.2, and No.3 on constitutional grounds. Only what are claimed to be ongoing practices in implementing the statutory
2 (Doc. 17.) The remaining counts in the Complaint, II, III, and IV, are directed at other persons charged as "Prison Defendants" and are not placed in issue by the present motion .
3 (See Doc. 17 at 1.) 4 (Doc. 1 at 47.)
-3­

Case 2:14-cv-00025-SEH Document 33 Filed 07/24/14 Page 4 of 10
program, specifically Mont. Code. Ann. § 46-14-312 (2013),5 are the target of
requested declaratory and injunctive relief.
ISSUE
The issue before the Court, as framed by the pleadings and the prayer for
relief, is itself narrow. Does the Complaint adequately plead: (1) the existence of
a constitutionally-protected liberty interest; and (2) a violation of that protected
interest that survives Defendants Opper and Glueckert's Rule 12(b)(6) motion?
5 The statute provides, in pertinent part,
(2) If the court finds that the defendant at the time of the commission of the offense suffered from a mental disease or defect or developmental disability as described in 46-14-311, any mandatory minimum sentence prescribed by law for the offense need not apply. The court shall sentence the defendant to be committed to the custody of the director of the department of public health and human services to be placed, after consideration of the recommendations of the professionals providing treatment to the defendant and recommendations of the professionals who have evaluated the defendant, in an appropriate correctional facility, mental health facility, as defined in 53-21-102, residential facility, as defined in 53-20-102, or developmental disabilities facility, as defined in 53-20-202, for custody, care, and treatment for a definite period of time not to exceed the maximum term of imprisonment that could be imposed under subsection (1). The director may, after considering the recommendations of the professionals providing treatment to the defendant and recommendations of the professionals who have evaluated the defendant, subsequently transfer the defendant to another correctional, mental health, residential, or developmental disabilities facility that will better serve the defendant's custody, care, and treatment needs. The authority of the court with regard to sentencing is the same as authorized in Title 46, chapter 18, if the treatment of the individual and the protection of the public are provided for.
-4­

Case 2:14-cv-00025-SEH Document 33 Filed 07/24/14 Page 5 of 10
DISCUSSION
Sufficiency of Pleadings
Bell At!. Corp. v. Twombly6 and Ashcroft v. JqbaF furnish the backdrop for
analysis of the sufficiency of the Complaint.8 The Ninth Circuit has noted that
"[pJrior to Twombly, a complaint would not be found deficient if it alleged a set of
facts consistent with a claim entitling the plaintiff to relief. ,,9 However, post­
6 550 U.S. 544 (2007).
7 556 U.S. 662 (2009).
8 Plaintiff relies on Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011) to support a premise that notice pleading alone is still the proper standard. However, this is misplaced. Although the allegations in the claims section of the Starr complaint stated only mere conclusory allegations, there were a multitude of factual allegations contained in over twenty paragraphs in the complaint stating specific factual components relating directly to the defendant and his alleged misconduct as a prison official. See Starr, 652 F.3d at 1209-12. In fact, Starr recognizes a possible controversy between cases in other circuits post-Iqbal. The opinion addresses the pleading requirement discrepancy as follows:
But whatever the difference between these [post-Iqbal} cases, we can at least state the following two principles common to all of them. First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itselfeffectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.
Starr, 652 F.3d 1202, 1216 (emphasis added).
u.s. 9 Moss v. Secret Serv., 572 F.3d 962,972 (9th Cir. 2009)(citation omitted).
-5­

Case 2:14-cv-00025-SEH Document 33 Filed 07/24/14 Page 6 of 10
Twombly, complaints only alleging "labels and conclusions," "formulaic recitation[s]" or "naked assertion[s]" are inadequate pleadings and will not survive a Fed. R. Civ. P. 12(b)(6) motion to dismiss.1O Instead, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.,,,11 "Dismissal is proper when the complaint does not make out a cognizable legal theory or does not allege sufficient facts to support a cognizable legal theory.,,12
Liberty Interest Claimed The Court's opinion in Chappell v. Mandeville 13 contains an excellent summary of current Ninth Circuit law on a liberty interest claim of the sort advanced here.
A liberty interest can arise from one of two sources-either the Due Process Clause of the Fourteenth Amendment or state law. 14
10 Twombly, 550 U.S. at 555,557. II Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570); see Cousins v. Lockyer, 568 F.3d 1063,1067-68 (9th Cir. 2009)(finding the same). 12 Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011)(citation omitted). 13 706 F.3d 1052, 1054 (9th Cir. 2013). 14 Chappell, 706 F.3d at 1062 (citation omitted).
-6­

Case 2:14-cv-00025-SEH Document 33 Filed 07/24/14 Page 7 of 10
"[LJawfully incarcerated persons retain only a narrow range of protected liberty interests." ... Thus, "[aJs long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by prison authorities to judicial oversight."15
Only the most extreme changes in the conditions of confinement have been found to directly invoke the protections of the Due Process Clause, such as involuntary commitment to a mental institution ... 16
A state may create a liberty interest through statutes, prison regulations, and policies. 17
Sandin and its progeny made this much clear: to find a violation of a state-created liberty interest the hardship imposed on the prisoner must be "atypical and significant ... in relation to the ordinary incidents of prison life.,,18
"[AJtypical and significant hardship" is context-dependent and requires "fact by fact
15 Jd. at 1062-1063 (alteration in original)(citations omitted). 16 !d. at 1063 (citation omitted). 17 Jd. (citing Wilkinson v. Austin, 545 U.S. 209, 222 (2005); Neal v. Shimoda, 131 F.3d 818, 827 (9th Cir.1997)). 18 Jd. at 1064 (quoting Sandin v. Conner, 515 U.S. 472, 483-84 (1995)).
-7­

Case 2:14-cv-00025-SEH Document 33 Filed 07/24/14 Page 8 of 10
consideration,,,19 ... "[t]here is no single standard for determining whether a prison hardship is atypical and significant" and that analysis under this standard requires "case by case, fact by fact consideration.,,20 Notwithstanding the length and detail of the highly editorialized allegations in the fifty-four page Complaint, much of what is asserted is umelated to the single claim against Opper and Glueckert who assumed their respective positions in December 201221 and February 2010.22 Neither can be said to have had any personal involvement with or responsibility for DPPHS or the State Hospital in 2006,2007, or 2008 when Prisoners No.1, No.2, and No.3 are asserted to have been transferred. Moreover, the allegations related to the transfers fail to provide the necessary claim related and fact specificity mandated by the principles in Chappell and in keeping with Iqbal and Twombly. Formulaic recitations and conclusionary or naked assertions of arbitrary transfer, violation of law, absence of proper notice and fair opportunity to be heard are inadequate.
19Id. (quoting Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) opinion amended on denial ofreh'g, 135 F.3d 1318 (9th Cir. 1998)).
2°Id. (quoting Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003)) . 21 (See Doc. 18-2 at 1.) 22 (See Doc. 18-3 at 1.)
-8­

Case 2:14-cv-00025-SEH Document 33 Filed 07/24/14 Page 9 of 10
The Complaint purports to seek relief on behalf of all GBlVlI prisoners committed to the custody of the DPHHS, who, by ongoing practice "are arbitrarily transferred out of the State Hospital, in violation of law, and without proper notice and a fair opportunity to challenge the transfer decision.,,23 This blanket "one size fits all" approach is flawed on many levels.
The case as pleaded and for which relief is sought patently conflicts with the clear directive of Sandin and Ninth Circuit precedent that a "case by case" and "fact by fact" analysis must be undertaken to determine that a particular transfer, if it be a protected liberty interest, is shown to be violative of the "atypical and significant hardship" test.
The implicated Montana statute (Mont. Code Ann. § 46-14-312), which is not itself challenged, spells out a procedural format for addressing and acting on transfer questions which is to be followed on an individual, prisoner by prisoner basis. It defies logic and reason to assume or hypothesize that absent adequate allegations grounded in fact, applicable to a particular prisoner, that any constitutionally-protected liberty interest violation has taken place.
The pleading fails to appropriately allege that Prisoners No.1, No.2 or No. 3, or any of them, were in fact transferred to the Montana State Prison from the
23 (Doc. 1 at 48.) 
 -9­

Case 2:14-cv-00025-SEH Document 33 Filed 07/24/14 Page 10 of 10
State Hospital by process inconsistent with the requirements of law, or, that either Opper or Glueckert was personally involved with whatever process was followed. The allegations in the Complaint, as to Count I directed against Opper and Glueckert, do not meet the pleading standards required of Iqbal and Twombly.
No advisory opinion can be rendered or comment made as to practices or procedures that mayor may not have been undertaken or carried out. Moreover, the Court has made no ruling on a question which is not decided, namely, whether a particular prisoner determined GBMI, and committed to the custody of the Director of DPPHS may, in an appropriate case, claim a Fourteenth Amendment due process protected liberty interest in procedures carried out in effecting transfer from the State Hospital to the Montana State Prison. Unless and until an appropriate pleading is made on behalf of a person who claims that his or her constitutionally-protected rights were infringed, no justiciable issue is presented.
CONCLUSION Count I of the Complaint against Defendants Opper and Glueckert is dismissed.
-1-* DATED this ~I./~y of July, 20~4.
_~fII~ AME. HADDON United States District Judge
-10­

 
 Case 2:14-cv-00025-SEH Document 42 Filed 10/31/14 Page 1 of 76

James Park Taylor ACLU of Montana 241 E. Alder P.O. Box 9138 Missoula, MT 59807 Telephone: (406) 549-6159 Email: jpt42@hotmail.com

Jon E. Ellingson ACLU of Montana 241 E. Alder P.O. Box 9138 Missoula, MT 59807 Telephone: (406) 443-8590 Email: jonelling@gmail.com

Jeffrey A. Simmons Foley & Lardner LLP 150 East Gilman Street Madison, WI 53703-1482 Telephone: (608) 258-4267 Email: jsimmons@foley.com

Tammy H. Boggs Foley & Lardner LLP 3579 Valley Centre Drive, Suite 300 San Diego, CA 92130 Telephone: (858) 847-6700 Email: tboggs@foley.com

Kyle A. Gray Adrian A. Miller Holland & Hart LLP 401 N. 31st Street Suite 1500 Billings, MT 59101-1277 Telephone: (406) 252-2166 Email: kgray@hollandandhart.com aamiller@hollandhart.com

Anna Conley Attorney At Law P.O. Box 9101 Missoula, MT 59807 Telephone: (406) 830-0367 Email: anna@annaconley.com

Attorneys for Plaintiff Disability Rights Montana, Inc.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BUTTE DIVISION

DISABILITY RIGHTS MONTANA, INC.,
Plaintiff, vs.
4818-0285-6736.4

) Civil No. CV-14-25-BU-SEH

)

)

)

AMENDED COMPLAINT

)

)

)

Case 2:14-cv-00025-SEH Document 42 Filed 10/31/14 Page 2 of 76

RICHARD OPPER, in his official

)

capacity as Director of the Montana

)

Department of Public Health and Human )

Services; JOHN GLUECKERT, in his )

official capacity as Administrator of the )

Montana State Hospital; MIKE

)

BATISTA, in his official capacity as

)

Director of the Montana Department of )

Corrections; LEROY KIRKEGAARD, )

in his official capacity as warden of

)

Montana State Prison; UNNAMED

)

DEFENDANT NO. 1, in his or her

)

official capacity as Mental Health

)

Director of Montana State Prison;

)

UNNAMED DEFENDANT NO. 2, in )

his or her official capacity as Staff

)

Psychiatrist of Montana State Prison, )

)

Defendants.

)

)

)

)

4818-0285-6736.4

Case 2:14-cv-00025-SEH Document 42 Filed 10/31/14 Page 3 of 76
For its Amended Complaint in this action, plaintiff Disability Rights Montana, Inc. (“DRM”) alleges as follows:
INTRODUCTION 1. Individuals with serious mental illness who are incarcerated at the Montana State Prison (“State Prison” or “Prison”) are subjected to a cruel system that exacerbates, rather than treats and ameliorates, their mental illnesses. At the Prison, both prisoners sentenced to the Department of Corrections (“DOC”) and prisoners sentenced to the Department of Public Health and Human Services (“DPHHS”) as “Guilty But Mentally Ill” (sometimes herein “GBMI”) receive substantially inadequate mental health care and are warehoused in solitary confinement, and are thereby subjected to cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution. 2. Individuals sentenced GBMI are also subject to due process violations contrary to the Fifth and Fourteenth Amendment to the U.S. Constitution. GBMI prisoners are committed to the custody of the Director of the Department of Health and Human Services for treatment. These individuals are generally sent to the Montana State Hospital (“State Hospital” or “Hospital”) where they are placed in a therapeutic setting. State law allows the Director to transfer a GBMI prisoner to the State Prison only after he has considered the recommendations of professionals who have evaluated and provided treatment to the prisoner and only if the Prison
4818-0285-6736.4

Case 2:14-cv-00025-SEH Document 42 Filed 10/31/14 Page 4 of 76
will “better serve the prisoner’s custody, care and treatment needs.” Section 4614-312, Mont. Code Ann. The due process violations occur when the GBMI prisoners are transferred to the Prison. As set forth in more detail below with respect to the experiences of Prisoners Nos. 1-3 and 9, none of the GBMI prisoners who were transferred from the Hospital were given notice of the time and place of the meeting at which the proposed transfer was to be discussed. The prisoners had no opportunity to examine the evidence that was considered in support of a recommendation to transfer. The prisoners had no opportunity to be heard on the subject, to present evidence on their own behalf, to be assisted by counsel, or to contest the recommendation to the Director before the Director ordered the prisoners’ transfer to the Prison. There was no opportunity provided to appeal the decision of the Director. The procedure that DPHHS uses to transfer GBMI prisoners from the Hospital to the Prison is constitutionally defective and constitutes a violation of the prisoners’ right to due process.
3. GBMI prisoners are transferred to the Prison simply to open up Hospital bed space or to avoid treating prisoners who are disliked by staff, without consideration of the individuals’ mental health treatment needs. DPHHS officials and State Hospital staff know that the Prison is not equipped to meet the treatment needs of these individuals and that transfer to the Prison will not best serve GBMI prisoners’ custody, care and treatment needs. Despite this, DPHHS and Hospital
2
4818-0285-6736.4

Case 2:14-cv-00025-SEH Document 42 Filed 10/31/14 Page 5 of 76
staff transfer GBMI prisoners to the Prison to their detriment and without due process.
4. At the Prison, prisoners with serious mental illness are treated with suspicion and disdain, and their legitimate mental health needs are deliberately ignored. In 2011, the Prison’s warden estimated that approximately one-fifth of the Prison’s approximately 1,500 prisoners suffer from mental illness, yet the Prison’s Mental Health Treatment Unit (sometimes herein “MHTU”) has just 12 beds, some of which are regularly kept empty. Prison staff engage in a pattern of cruel and unusual punishment of prisoners with serious mental illness, including: routinely keeping prisoners with serious mental illness locked in solitary confinement 22 to 24-hours a day for months, and in some cases years, which makes their illnesses worse and leads to a cycle of misbehavior and further punishment; depriving prisoners with serious mental illness of clothes, bedding, proper food, and human contact as part of so-called “behavior management plans” that punish prisoners for behavior resulting from their mental illness; deliberately refusing to diagnose prisoners as suffering from mental illness despite clear evidence supporting such diagnoses; deliberately discontinuing prescriptions for necessary mental health medications; and failing to provide any meaningful treatment and therapy for the vast majority of prisoners with serious mental illness.
3
4818-0285-6736.4

Case 2:14-cv-00025-SEH Document 42 Filed 10/31/14 Page 6 of 76
This is a system where punishment without rehabilitation or treatment is the Prison Defendants’ standard practice for prisoners with serious mental illness.
5. These acts by Defendants violate the prisoners’ constitutional rights to due process (under the Fifth and Fourteenth Amendments to the United States Constitution), and to be free from cruel and unusual punishment (under the Eighth and Fourteenth Amendments to the United States Constitution), and prisoners’ rights to reasonable accommodations for their mental illness under the Americans with Disabilities Act and the Rehabilitation Act.
6. On behalf of all prisoners with serious mental illness at the Prison, including those sentenced GBMI and subjected to the State Hospital’s transfer practices and those sentenced to the DOC, DRM brings this action.
THE PARTIES 7. Plaintiff Disability Rights Montana, Inc. is a not-for-profit Montana corporation and the authorized protection and advocacy agency for Montana pursuant to the federal Protection and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. § 10801 et seq. Among other things, DRM is authorized by federal law to pursue legal, administrative, and other appropriate remedies to ensure that individuals with serious mental illness in state institutions are protected from abuse and neglect.
4
4818-0285-6736.4

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8. Individuals who have received or are receiving mental health services, or their family members, are substantially involved in DRM’s governance, including serving on DRM’s board of directors, and constitute at least 60 percent of DRM’s advisory council.
9. Defendant Richard Opper is Director of DPHHS and at all times relevant to this Complaint was acting within the scope of his employment and under color of state law in his capacity as Director of DPHHS. The Director of DPHHS is the custodian of every GBMI prisoner until the sentence of the prisoner is completely served or until the sentence is amended to remove the prisoner from the custody of the Director and transfer the prisoner to the Department of Corrections pursuant to § 46-14-312 (3) and (4), MCA, regardless of whether the prisoner is housed at the Hospital or the Prison. Consequently, Director Opper is responsible for supervising the custody, care and treatment of every GBMI prisoner who is housed at the Hospital or at the Prison. Section 46-14-312, MCA establishes a liberty interest for GBMI prisoners in remaining at the State Hospital unless another facility will better serve the individual’s custody, care and treatment needs. By sending GBMI prisoners to the Prison without notice, a hearing, or by use of the procedures prescribed by § 46-14-312 (3) and (4), MCA, Director Opper has violated the liberty interests of the GBMI prisoners. Under § 46-14-312 (2), MCA, no GBMI prisoner is transferred from the State Hospital to the State Prison
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without the approval of the Director of DPHHS. Director Opper is sued in his official capacity. In this capacity he is responsible for actions taken by himself and his predecessor.
10. Defendant John Glueckert is the Administrator of the State Hospital and at all times relevant to this Complaint was acting within the scope of his employment and under color of state law in his capacity as Administrator of the State Hospital. Defendant Glueckert and his predecessors have been personally involved in transferring GBMI patients to the Prison without due process. No recommendation to the Director of DPHHS for transferring a GBMI prisoner is made without the approval of the Administrator of the State Hospital. Mr. Glueckert is sued in his official capacity. In this capacity, he is responsible for actions taken by himself and his predecessor.
11. Defendants Opper and Gluekert are referred to collectively as the “State Hospital Defendants.”
12. Defendant Mike Batista is Director of the Montana Department of Corrections (“DOC”) and at all times relevant to this Complaint was acting within the scope of his employment and under color of state law in his capacity as Director of DOC. Director Batista is directly responsible for the administration of the Prison and has authority to direct the housing, discipline, treatment and care of
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prisoners with serious mental illness at the Prison. Director Batista is sued in his official capacity.
13. Defendant Leroy Kirkegaard is Warden of the Prison and at all times relevant to this Complaint was acting within the scope of his employment and under color of state law in his capacity as Warden. Warden Kirkegaard is directly responsible for the administration of the Prison and has authority to direct the housing, discipline, treatment and care of prisoners with serious mental illness at the Prison. Warden Kirkegaard is sued in his official capacity
14. Unnamed Defendant No. 1 is Director of Mental Health for the Prison and at all times relevant to this Amended Complaint was acting within the scope of his or her employment and under color of state law in his or her capacity as Director of Mental Health. Until recently, the Director of Mental Health was Jill Buck, who was named as a defendant in DRM’s original Complaint in this action. It is DRM’s understanding that Ms. Buck recently resigned from the position of Director of Mental Health and a replacement has not yet been named for the position. Unnamed Defendant No. 1 has authority to direct the housing, discipline, treatment and care of prisoners with serious mental illness at the Prison. In addition to the acts set forth below, Unnamed Defendant No. 1 regularly approves prisoners with serious mental illness for long term housing in solitary confinement and punitive isolation practices such as behavior management programs (“BMPs”)
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discussed below. Unnamed Defendant No. 1 approves solitary confinement, 24hour isolation in disciplinary detention, and BMPs as sanctions for behaviors that are products of mental illnesses. Unnamed Defendant No. 1 is sued in his or her official capacity.
15. Defendants Batista, Kirkegaard and Unnamed Defendant No. 1 have personally participated in providing inadequate mental health treatment to prisoners at the Prison. They have refused to take steps to ameliorate inadequate treatment made known to them by family members of impacted MSP family members. They have denied multiple grievances, mental health requests, and/or appeals regarding inadequate mental health treatment. They have direct oversight over all of the Prison’s practices described in the Complaint.
16. Unnamed Defendant No. 2 is the Staff Psychiatrist for the Prison and at all times relevant to this Amended Complaint was acting within the scope of his or her employment and under color of state law in his or her capacity as Staff Psychiatrist. Until recently, the Staff Psychiatrist was Dr. Peter Edwards, who was named as a defendant in DRM’s original Complaint in this action. It is DRM’s understanding that Dr. Edwards recently resigned from the position of Staff Psychiatrist and a replacement has not yet been named for the position. Unnamed Defendant No. 2 has authority to direct the housing, discipline, treatment and care
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of prisoners with serious mental illness at the Prison. Unnamed Defendant No. 2 is sued in his official capacity.
17. Director Batista, Warden Kirkegaard, Unnamed Defendant No. 1 and Unnamed Defendant No. 2 are referred to collectively as the “Prison Defendants.”
JURISDICTION AND VENUE 18. This court has jurisdiction of DRM’s claims pursuant to 28 U.S.C. §§ 1331 and 1343. 19. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b), and is proper in this Division pursuant to Local Rule 3.2(b), inter alia, because the unlawful transfers from the State Hospital occurred in Deer Lodge County. 20. This Court has authority pursuant to 42 U.S.C. § 1983 to order injunctive and declaratory relief. 21. This Court has authority pursuant to 42 U.S.C. §12188 to order injunctive relief to remedy violations of the Americans With Disabilities Act. 22. This Court has authority pursuant to 29 U.S.C. § 794a to order injunctive relief to remedy violations of the Vocational Rehabilitation and Other Rehabilitation Services Act.
FACTS The Prison’s Population Of Prisoners With Serious Mental Illness 23. Prisoners with serious mental illness make up a large percentage of the individuals incarcerated at the Prison. In 2011, the Prison Warden estimated
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that approximately one-fifth the Prison’s approximately 1,500 prisoners suffer from mental illness. The Prison’s Staff Psychiatrist has approximately 275 prisoners on his or her medication management caseload.
DPHHS’s Procedures For Transferring Prisoners To The Prison 24. In cases where an individual suffered from a mental disease or defect or developmental disability at the time he committed a crime, § 46-14-312, MCA directs a court to sentence that individual to the custody of the Director of DPHHS. Such sentences are known as “Guilty But Mentally Ill.” Section 46-14-312, MCA requires that the individual be placed in an appropriate facility after considering the recommendations of treatment professionals. In practice, most individuals sentenced GBMI are initially sent to the Forensic Wing of the State Hospital to receive appropriate mental health care. Once at the State Hospital, § 53-21-142(2), MCA guarantees patients the “right to the least restrictive conditions necessary to achieve the purpose of commitment.” 25. The Forensic Wing of the State Hospital has only 32 beds, which is insufficient for the number of GBMI individuals sentenced to DPHHS custody. GBMI patients may also reside in other wings of the State Hospital, or in group homes on the MSH campus. 26. The State Hospital has at least seven full-time psychiatrists available at all times for a population of approximately 209 patients, resulting in a
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psychiatrist-patient ratio of approximately 1 to 28. Every GBMI patient is assigned a treatment team, including a psychiatrist or advance practice psychiatric nurse, a social worker and a nurse, and in some cases, a treatment specialist and a recreation therapist.
27. Under § 46-14-312, MCA, the Director of DPHHS may transfer a GBMI patient to another correctional, mental health, residential or developmental disabilities facility only if that facility “will better serve the [patient’s] custody, care and treatment needs.” The DPHHS Director must consider “the recommendations of professionals providing treatment to the defendant and recommendations of the professionals who have evaluated the defendant” prior to ordering the patient’s transfer. In practice, however, the DPHHS Director ignores the patient’s custody, care and treatment needs and, instead, transfers patients to the Prison simply to open up additional beds at the State Hospital or to get rid of patients who are disliked by Hospital staff.
28. Although transfer recommendations are formally made by the Hospital’s Forensic Review Board (“FRB”), that review process is a sham. With no semblance of due process, the FRB rubber-stamps decisions already made by Hospital staff. Upon information and belief, the FRB has never recommended against transferring a patient to the Prison. Upon information and belief, the State
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Hospital is so confident of the outcome of FRB proceedings that the Hospital makes arrangements to transfer patients to the Prison before the FRB has even met.
29. This reality of the State Hospital’s transfer process was captured in a 2007 email from Jill Buck to Prison staff regarding an impending transfer of GBMI patients to the Prison, in which she wrote, “the Director of DPHHS wants to clear out as many GBMI’s that they can – which means they will come here. They heard that we have bed space so they want to fill us up!”
30. As described in the examples of Prisoners Nos. 1-3 and 9, a GBMI prisoner who is being transferred from the Hospital to the Prison receives none of the most elementary components of procedural due process before the transfer is effectuated. Under Montana state law, DPHHS retains ultimate responsible for GBMI-sentenced individual's custody, care and treatment needs. Despite this legal responsibility, once transferred, DPHHS does no follow up to ensure that GBMIindividuals are receiving adequate care, and to ensure that their custody care and treatment needs are being better met at the prison than at the state hospital. Once transferred, GBMI-individuals have no opportunity to seek transfer back to the state hospital, even if they are deteriorating and/or their custody, care and treatment needs are not better met at the prison.
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The Prison’s Practices Regarding Prisoners With Serious Mental Illnesses 31. Once transferred to the Prison, a GBMI patient’s mental health
treatment all but disappears and the patient becomes subject to conditions that are far more likely to make his mental illness worse than to make it better.
32. The Prison also houses many prisoners with serious mental illness sentenced directly to the DOC. These prisoners encounter the same inadequate mental health treatment and overuse of solitary confinement as GBMI patients transferred to the Prison.
33. The Prison’s treatment of prisoners with serious mental illness is constitutionally defective at every step of the treatment process. When prisoners arrive at the Prison, the Prison has no meaningful system for identifying, classifying, and monitoring prisoners with serious mental illness.
34. Prison officials do not know the number of prisoners with mental illness because they have no system to classify and track them.
35. The Prison has no policy or procedure to define or classify prisoners according to their level of mental health need.
36. The Prison’s initial screening of prisoners with serious mental illness during intake often occurs weeks after admission, which is far too long to identify suicidal prisoners or prisoners in mental crisis.
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37. The Prison’s level 2 mental health evaluation, which is conducted if a prisoner shows signs of mental illness during the initial screening, sometimes occurs weeks after the initial screening.
38. The Prison has no policy explaining how the information gathered from prisoners at intake should be processed or utilized, whether it should be taken into account when determining housing, custody level, or programming, or who should receive copies of the information.
39. The Prison does not create comprehensive treatment plans for prisoners with serious mental illness.
40. The Prison has no system for auditing, evaluating or ensuring the effectiveness of its mental health care program. MSP Mental Health Staff Mis-Diagnose Prisoners as “Faking” Mental Illness
41. MSP mental health staff, including Unnamed Defendant No. 1 and Unnamed Defendant No. 2, engage in a policy and practice of mis-diagnosing prisoners as feigning mental illness, and characterizing their behavior as manipulative, rather than a product of mental illness. As a result, a culture of suspicion, derision and mistrust toward prisoners with serious mental illness is prevalent at the Prison. This has wide-reaching ramifications for prisoners with serious mental illness, including increased custody levels, restrictive housing,
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disciplinary actions and sanctions, decreased access to education and programming, and a lesser chance of receiving parole once eligible.
42. The Prison’s most recent Staff Psychiatrist, Dr. Peter Edwards, believed that most prisoners with serious mental illness were either “faking it” or untreatable. During a 2013 panel discussion at the Prison for a legislative committee, Dr. Edwards stated that the majority of prisoners at the Prison, who people outside the Prison perceive as mentally ill, actually have untreatable personality disorders and “don’t want to change.”
43. As a result of his extraordinary indifference to the mental health conditions of the prisoners he is charged with treating, Dr. Edwards deliberately refused to diagnose prisoners as having mental illness, even where the prisoners had well-documented histories of such illnesses. Instead, Dr. Edwards commonly diagnosed prisoners as “malingering,” meaning the prisoner is supposedly feigning mental illness to obtain some other benefit.
44. Dr. Edwards also engaged in a pattern of deliberately discontinuing medications that prisoners have taken for years to treat their mental illnesses. Dr. Edwards regularly discontinued prisoners’ medications without considering the effect it will have on their mental illness.
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The Prison’s Use Of Solitary Confinement To Address The Behavioral Problems Of Prisoners With Serious Mental Illness
45. Rather than diagnosing, treating, and monitoring prisoners with serious mental illness, the Prison Defendants use solitary confinement—keeping prisoners isolated in cells for 22 to 24 hours a day for weeks and even months and years at a time—as a common means for addressing the behavioral problems associated with prisoners with serious mental illness. The Prison Defendants subject prisoners to solitary confinement without regard to whether prisoners’ behavior is a product of their mental illness or the effect that solitary confinement will have on their mental health.
46. The Prison has approximately 200 solitary confinement cells located in two “Locked Housing” units. Within Locked Housing there are various degrees of solitary confinement involving different levels of isolation and sensory deprivation. Even the most lenient forms of solitary confinement imposed by the Prison Defendants are detrimental to the health of prisoners with serious mental illness.
47. The cells in Locked Housing are small concrete single-person cells. 48. The cell doors in Locked Housing are solid metal with a small window and a food slot. Prisoners receive meals through the food slot and eat all of their meals in isolation in their cells.
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49. While in Locked Housing cells, prisoners experience little or no natural light. The cells in Locked Housing have only one small window, some of which are frosted or covered with metal.
50. It is common for prisoners in solitary confinement to hear screaming, crying or other disturbing noises by other prisoners who have serious mental illness and are psychotic or decompensating.
51. Prisoners in solitary confinement experience little human interaction. Prisoners have little ability to speak to or see other prisoners. All prisoners in solitary confinement are placed in restraints whenever they leave their cell.
52. Prisoners with serious mental illness who are placed in solitary confinement receive no therapy for their mental illness. The primary contact with mental health staff while they are in solitary confinement consists of weekly rounds by mental health technicians. Each visit during weekly rounds typically lasts no more than a few minutes and is conducted at the prisoner’s cell door, where other prisoners and corrections officers can hear what is said. As a result, prisoners with serious mental illness are often reluctant to share their mental health concerns during those rounds. The futility of this process causes prisoners with serious mental illness to suffer additional stress.
53. The least restrictive level of solitary confinement is known as “Max Population” or Levels 4 and 5 of “Administration Segregation” or “Ad Seg.” At
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Levels 4 and 5, prisoners are isolated in their cells at least 22 hours a day five days a week, and 24 hours a day two days a week. The out-of-cell time for a prisoner confined to these levels consists of one hour per day alone in a dayroom adjoining his cell, and one hour per day in a small outdoor caged area by himself. If a prisoner is not feeling well or does not wake up during the designated one-hour recreation period, which is often the case for prisoners with serious mental illness, the prisoner may not receive his one hour of outdoor time.
54. Prisoners in levels zero (0) through three (3) of Ad Seg are in their cells 23 hours per day five days a week, and 24 hours a day two days per week. The one hour of outdoor recreation time occurs in one of two outdoor areas, depending on the housing unit. One is a caged area linked to other caged areas attached to the housing structure, and the other is a small, cement-walled area that has a metal grate for a roof. At Level 0, prisoners receive no visits, one phone call per month after 30 days of clear conduct, and cannot engage in cell study or hobby, such as art. At Level 1, prisoners may make just two phone calls per month, and are allowed just one visit every other week. At Level 2, prisoners may make just three calls per month and may have just one visit per week.
55. In a more restrictive form of solitary confinement, referred to as “Restricted Ad Seg,” prisoners are kept in their cells 23 hours per day and experience heightened isolation. A prisoner in Restricted Ad Seg is ineligible for
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phone calls for the first 60 days. Restricted Ad Seg is broken into four levels, A – D, with A being the most restrictive. In Levels A and B, prisoners may not make phone calls or have visitors for the duration of time they remain on those levels. Prisoners who advance to Level C are entitled to one, fifteen minute phone call per month to immediate family members only. Prisoners are ineligible for visits until they receive 90 days of clear conduct. Prisoners receive one hour of outside recreation five days a week, however, if a prisoner is not feeling well or does not wake up during the designated one-hour recreation period, he may not receive his one hour of outdoor time.
56. Among the most extreme forms of solitary confinement imposed at the Prison is “Disciplinary Detention,” which is better known among prisoners and Prison staff as “The Hole.” The Hole is total isolation. Prisoners sent to The Hole are subjected to 24-hour isolation in their cell. Some cells used for The Hole have blacked-out windows, resulting in a total absence of natural light. Prisoners placed in The Hole are prohibited from having any reading materials for the first several days of detention, then subsequently have substantially restricted reading privileges. They cannot make phone calls or have visitors. They cannot participate in religious services or rehabilitative treatment programs. They receive no mental health therapy. They receive no indoor or outdoor recreation time
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whatsoever. The only out-of-cell time given to prisoners in The Hole consists of three, ten-minute showers per week.
57. Although the Prison’s formal policies prohibit a prisoner from spending more than 30 consecutive days in The Hole, Prison staff render that rule meaningless by transferring prisoners to other forms of solitary confinement for short periods of time at the end of 30 days and then returning the prisoner to The Hole for another 30 days. The Prison Defendants are aware of this practice.
58. The Prison regularly places prisoners with serious mental illness in all of the forms of solitary confinement described above for weeks and months at a time. Some prisoners with serious mental illness have spent years in various forms of solitary confinement during their time at the Prison.
59. Subjecting prisoners with serious mental illness to these forms of solitary confinement is dangerous to the prisoners’ health. Prisoners with serious mental illness who are subjected to solitary confinement have no means of controlling the symptoms of their illness. They are left utterly alone with few positive distractions and, as a result, may obsess on their own disordered thoughts and become increasingly more ill, known as “decompensating.” Prisoners with serious mental illness stated that months in solitary confinement at the Prison causes them to experience anxiety and paranoia, increased hostility, and increased depression. Prisoners experiencing auditory and visual hallucinations stated that
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their hallucinations become more intense while they are in solitary confinement at the Prison. One prisoner with serious mental illness explained that being placed in solitary confinement makes him feel like a young kid locked in a closet with nothing to do and, as a result, he spreads feces on the walls of his cell to keep bad spirits away.
60. Even when prisoners with serious mental illness are able to keep their outward behavior under control, long periods of solitary confinement cause the prisoners to lose their ability to interact with people and they become afraid to reintegrate into the general prison population and society. The Prison Defendants may view such pacification as “success” but, in fact, they are causing long-term harm to the prisoners’ mental health.
The Prison’s Use Of “Behavior Management Plans” To Punish Prisoners With Serious Mental Illness
61. In addition to solitary confinement, the Prison Defendants also subject prisoners with serious mental illness to “Behavior Management Plans” (“BMPs”) that punish prisoners for behavior that is a product of their mental illness, such as self-mutilation and smearing feces on cell walls. BMPs are an extreme form of punishment in which prisoners are kept in 24-hour isolation and deprived of the most basic elements of civilized life. In 2003, the Montana Supreme Court held that BMPs, in conjunction with other aspects of solitary confinement and inadequate mental health treatment, violate the Montana Constitution. Regardless,
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Prison Defendants continue to routinely utilize the practice for prisoners with serious mental illness.
62. A prisoner on a BMP starts out by having all of his prison clothing removed and being given just a mattress, blanket, and a suicide smock. At the start of a BMP all meals consist of a tasteless loaf of food (“nutraloaf”) delivered on a paper towel, and the prisoner is not allowed any running water in his cell. A guard must flush the toilet for the prisoner, and the prisoner must ask for water to wash his hands. In extreme forms of BMPs, prisoners must go to the bathroom through a grate on the floor.
63. Prisoners on BMPs can progress to less punitive levels of BMPs only by conforming their behavior to prison rules. But for prisoners with serious mental illness this can be impossible, as their illnesses makes it difficult or impossible for them to modify their behavior and they cannot comprehend the “logic” behind the BMP system. As result, BMPs exacerbate the prisoners’ mental illness and lead to further punishment for misbehavior.
64. The Prison Defendants place prisoners with serious mental illness on BMPs as a matter of course, without modifying the BMPs in any way to account for the previous failures of the BMPs to correct the prisoner’s behavior. BMPs are not an evidence-based practice. The Prison Defendants do not track whether
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BMPs actually work, or change behavior for specific prisoners or for the prison population generally.
65. Prison mental health staff do not take steps to prevent prisoners with serious mental illness from being placed on BMPs. In some instances, Prison mental health staff have encouraged the use of BMPs on prisoners with serious mental illness.
66. Although the Prison’s formal policies call for Prison mental health staff to assess a prisoner’s mental health status before allowing a prisoner to be placed on a BMP, that process is a sham. Prison policies require mental health staff to certify that “[t]he inmate’s present behavior is not the direct result of an Axis I serious mental disorder.” Because the Prison’s Staff Psychiatrist, deliberately refuses to diagnose prisoners as having Axis I serious mental disorders, the BMP certification process is a meaningless “check-the-box” exercise. Even where prisoners are diagnosed with an Axis I disorder, Prison mental health staff conclude that the prisoner’s behavior was not a direct result of that disorder. Upon information and belief, Prison mental health staff have never certified that a prisoner’s behavior was the direct result of an Axis I serious mental disorder.
67. Prison mental health staff “clear” prisoners to be placed on BMPs for six-month periods. During the six-month period, a prisoner can be placed on a
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BMP without input from mental health staff. During an inspection of the Prison by DRM’s psychiatric expert, Prison staff could not identify a single instance in which mental health staff intervened to discontinue a BMP.
68. Rather than protect prisoners with serious mental illness from the damaging effects of BMPs, mental health staff sometime encourage the use of BMPs for such prisoners. In one instance, Ms. Buck wrote to prison staff that two individuals sentenced GBMI to DPHHS would be “good candidates” for BMPs at the Prison.
The Prison Fails To Properly Address The Health Care Needs Of Prisoners With Serious Mental Illness
69. Prisoners with serious mental illness at the Prison receive little, if any, meaningful interaction with mental health clinicians. The Prison offers group therapy with mental health staff to only a very small percentage of the prisoners with serious mental illness, none of whom are in solitary confinement. An even smaller percentage of prisoners with serious mental illness receive individual therapy at the Prison.
70. For the vast majority of prisoners with serious mental illness, their interaction with mental health staff at the Prison consists of non-confidential weekly cell checks by mental health technicians at the cell door. Prisoners’ written requests for additional mental health care are regularly denied. The futility of requesting additional mental health care exacerbates prisoners’ mental illnesses.
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71. The Prison Defendants fail to respond appropriately to threats of suicide by prisoners with serious mental illness. The Prison’s most common response to a prisoner expressing thoughts of suicide is to place a prisoner on a BMP. This response causes prisoners to be reluctant to admit to thoughts of suicide and, as a result, increases the risk of suicide.
72. In at least two known instances, Dr. Edwards dismissed prisoners’ histories of previous suicide attempts, and the prisoners died shortly thereafter of apparent suicides.
73. The Prison does not have an adequate number of trained mental health staff to provide adequate mental health care to its prisoners. The Prison has 19 mental health staff positions to provide services to approximately 300 prisoners with serious mental illness. Many of those positions are perpetually vacant. The Prison has had a 75% turnover of its mental health staff during the last two years.
74. The majority of requests for mental health services by prisoners are addressed by the Prison’s six mental health technicians. The only educational requirement for the mental health technicians is a high school diploma. Despite the lack of training, qualifications and education these individuals receive, they are on the “front lines” for mental health treatment of prisoners with serious mental illness in solitary confinement. For example, mental health technicians are responsible for conducting “wellness checks” on prisoners during which they are
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tasked with evaluating a prisoner’s behavior, mood, thinking, quality of thinking, social well-being, and suicidal ideation.
75. Even the Prison’s Mental Health Treatment Unit has inadequate therapy and counseling for prisoners fortunate enough to be placed there.
76. The Prison’s corrections staff members receive just a four-hour class on mental health issues each year.
Examples Of The Experiences Of Prisoners With Serious Mental Illness 77. Below are examples of the experiences of several prisoners with
serious mental illness at the State Hospital and the Prison. Prisoner No. 1 78. Prisoner No. 1 is a 50-year-old who has spent most of his life in
correctional institutions and psychiatric hospitals. He has been committed to the State Hospital on seven occasions. In 2006, Prisoner No. 1 was sentenced Guilty But Mentally Ill and given a 15-year sentence to DPHHS. Among the reasons the Judge gave for the sentence was that “[t]he Defendant has substance and mental health issues and [DPHHS] is the best facility to address those conditions.”
79. DPHHS placed Prisoner No. 1 at the State Hospital, where he was diagnosed as schizophrenic and put on antipsychotic medications. Prisoner No. 1 resided at the State Hospital’s Residential Care Unit for some time, during which
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staff described him as “polite, friendly, cooperative, and socializing appropriately with staff and peers.”
80. The attitude of Hospital staff toward Prisoner No. 1 changed after they suspected him of stealing another patient’s jewelry. Hospital staff transferred Prisoner No. 1 to the Hospital’s forensic wing. On or about July 26, 2007, the Hospital’s Forensic Review Board then voted to recommend that the DPHHS Director transfer Prisoner No. 1 to the Prison. The Acting Director of DPHHS (in whose place Director Opper now stands and for whose conduct he is responsible) approved the transfer. The FRB stated that Prisoner No. 1’s “mental disease, [s]chizophrenia, has been stabilized with medications, and that he has achieved maximum hospital benefit.” The FRB stated, “[I]t is believed his needs will be better served at [the State Prison].” The Prison’s Director of Mental Health, Jill Buck, gave a different reason for the transfer. She told Prison staff that “the Director of DPHHS wants to clear out as many GBMI’s that they can – which means they will come here. They heard we have the bed space so they want to fill us up!” The Administrator (or his predecessor, for whose conduct he is responsible) also approved the transfer.
81. Prisoner No. 1 first learned that the Director was sending him from the Hospital to the Prison on the day of his transfer. He was working in the dayroom when, without warning, guards from the Prison approached him and
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secured his person. The guards did not tell him why they were taking him from the Hospital or where they were taking him. He did not want to be transferred and believes that the Hospital provided him with a better therapeutic environment.
82. Before DPHHS transferred Prisoner No. 1 from the State Hospital to the Prison, DPHHS did not provide the Prisoner any of the following procedural safeguards:
a. Reasonable notice that DPHHS was beginning the process that resulted in his transfer to the Prison.
b. Reasonable notice of the time and place of the meeting of the FRB at which time the Prisoner’s possible transfer would be considered.
c. A list of the witnesses and documents that would be presented in support of the request to transfer.
d. The assistance of legal counsel in presenting his case to the FRB.
e. The opportunity at, and/or before, the meeting of the FRB: - to confront and cross examine the witnesses who were heard by the FRB;
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- to examine the documents that the FRB relied upon in reaching its recommendation and present testimony regarding the documents;
- to present his own testimony in person; and - to present his own witnesses and documents on the subject,
including without limitation treating psychologists and physicians. f. An independent decision-maker making transfer determinations. g. An independent evaluation by a qualified mental health professional regarding whether a transfer to the Prison would better serve the Prisoner’s custody, care, and treatment needs. h. A written statement by the decision-maker setting forth the basis for the transfer determination and the evidence relied upon in reaching that determination. i. Timely notice of the recommendation of the FRB to the Director. j. The opportunity to contest the recommendation before the Director.
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k. Notice that the Director had adopted the recommendations of the FRB.
l. The opportunity to appeal the decision of the Director. 83. Prisoner No. 1 arrived at the Prison in 2008. From 2008 to 2012, Prison mental health staff repeatedly acknowledged his diagnosis of schizophrenia and he was prescribed multiple antipsychotic medications. Despite that diagnosis, Prison staff placed Prisoner No. 1 in solitary confinement and subjected him to BMPs for threatening self-harm. Prisoner No. 1 told Prison mental health staff that he wanted to cry when he was in solitary confinement and that he did not “do hole time well.” He said that in solitary confinement “all I do is suffer unmitigated hell in these cells all the time.” 84. In 2012, Dr. Edwards began meeting with Prisoner No. 1. After their second meeting, Dr. Edwards discontinued Prisoner No. 1’s prescription for the antipsychotic medication Risperdal. In his notes of the meeting, Dr. Edwards wrote, “I’m rather skeptical that this man has any kind of chronic disorder” and “he is probably not mentally ill either.” Six months later, Dr. Edwards wrote, “I am absolutely convinced this man is malingering,” and decided to taper off Prisoner No. 1’s antipsychotic medications with the goal of discontinuing them completely. Dr. Edwards speculated that Prisoner No. 1 “will act out in some way to
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supposedly prove his mental illness, but I will alert the whole mental health staff about this at our next meeting.”
85. Prisoner No. 1 exhausted his administrative remedies regarding inadequate mental health care at the Prison. In response to Prisoner No. 1’s appeal, the DOC Director wrote, “my review finds the matter has been given an appropriate level of attention by medical staff. I find no grounds for overturning prior decisions.”
86. Prisoner No. 1 currently reports having a progressively harder time managing his hallucinations and disorganized thoughts without proper medication. He is convinced that Dr. Edwards and other mental health staff are torturing him in exchange for large sums of money.
Prisoner No. 2 87. Prisoner No. 2 is a 43-year-old prisoner with a long history of mental illness, including diagnoses for psychotic disorders. Prisoner No. 2 has a full IQ of 78, which places him in the borderline range of intellectual functioning. He has been admitted to multiple psychiatric hospitals and attempted suicide several times. 88. In 2002, a district court judge found Prisoner No. 2 Guilty But Mentally Ill of a felony and misdemeanor, and committed him to DPHHS “for placement at [the State Hospital] for a period of fifteen (15) years.” There was no evidence that Prisoner No. 2 was a danger to other patients or staff at the State
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Hospital. He participated in required therapy groups and even resided at the lessrestrictive group home on the MSH campus. However, State Hospital staff found Prisoner No. 2’s personal hygiene offensive.
89. In 2007, State Hospital staff attempted to place Prisoner No. 2 in a community group home. When the effort to release Prisoner No. 2 to the community failed, Hospital staff decided instead to transfer him to the Prison. On July 23, 2007, a DPHHS employee emailed a Prison employee, informing him that Prisoner No. 2 was being transferred to MSP for “non-complaint [sic] with treatment.” Afterward, on July 26, 2007, the Forensic Review Board voted unanimously to recommend that the DPHHS director transfer Prisoner No. 2 to MSP “where it is believed his needs will be better served” because “he has achieved maximum hospital benefit.” On August 2, 2007, the acting DPHHS director (in whose place Director Opper now stands and for whose conduct he is responsible) issued a memo transferring Prisoner No. 2 to the Prison. The Administrator of the State Hospital (or his predecessor, for whose conduct he is responsible) also approved the transfer.
90. Prisoner No. 2 first learned that he was being transferred from the Hospital to the Prison on the day of his transfer. He states: “I was eating breakfast and was called from the eating area. I saw two prison guards and was taken to
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them. They strip searched me and put me in chains and shackles. I did not know that I was going to prison until I was put into the van.”
91. Before DPHHS transferred Prisoner No. 2 from the State Hospital to the Prison, DPHHS did not provide the Prisoner any of the following procedural safeguards:
a. Reasonable notice that DPHHS was beginning the process that resulted in his transfer to the Prison.
b. Reasonable notice of the time and place of the meeting of the FRB at which time the Prisoner’s possible transfer would be considered.
c. A list of the witnesses and documents that would be presented in support of the request to transfer.
d. The assistance of legal counsel in presenting his case to the FRB.
e. The opportunity at, and/or before, the meeting of the FRB: - to confront and cross examine the witnesses who were heard by the FRB; - to examine the documents that the FRB relied upon in reaching its recommendation and present testimony regarding the documents;
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- to present his own testimony in person; and - to present his own witnesses and documents on the subject,
including without limitation treating psychologists and physicians. f. An independent decision-maker making transfer determinations. g. An independent evaluation by a qualified mental health professional regarding whether a transfer to the Prison would better serve the Prisoner’s custody, care, and treatment needs. h. A written statement by the decision-maker setting forth the basis for the transfer determination and the evidence relied upon in reaching that determination. i. Timely notice of the recommendation of the FRB to the Director. j. The opportunity to contest the recommendation before the Director. k. Notice that the Director had adopted the recommendations of the FRB. l. The opportunity to appeal the decision of the Director.
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92. Of particular note in the case of this prisoner is the language of the Judgment that sentenced him to the custody of DPHHS: “pursuant to Section 4614-312, MCA, the defendant shall be returned to the Court upon discharge from the Montana State Hospital for determination of placement.” Prisoner No. 2 was not returned to the District Court upon discharge from the Hospital. Instead he was taken directly to the Prison.
93. Since arriving at the Prison, Prisoner No. 2 has spent over three years in solitary confinement for “bizarre” and “disruptive” behavior. For two months, Prisoner No. 2 was placed in the Prison’s MHTU, where mental health staff concluded that, although Prisoner No. 2 was previously diagnosed with serious mental illness, his problems were behavioral and stemmed from immaturity and other unknown sources. As a result, Prisoner No. 2 was transferred back to solitary confinement. Staff in the Prison’s Locked Housing Unit have repeatedly tried to get Prisoner No. 2 moved back to the MHTU, but MHTU staff refused to accept him.
94. Prison staff have continuously refused to consider Prisoner No. 2’s mental illness and developmental disabilities when addressing his behavior. Prison staff have placed Prisoner No. 2 on BMPs approximately 25 times for acts including actual and threatened self-harm, smearing feces in his cell, banging his head until it bled on his cell door while asking for real food instead of nutraloaf,
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crying and saying people on the floor were talking to him, attempting suicide, cutting himself with a broken deodorant stick, and hitting his cell door and screaming “help me help me” for 20 minutes. Prisoner No. 2 has spent weeks in 24-hour isolation in disciplinary detention for similar behaviors.
95. In 2012, Prison mental health staff discontinued Prisoner No. 2’s antipsychotic medications, which he had taken for many years, after he temporarily refused to take them. Prisoner No. 2’s subsequent requests for medications were denied. While unmedicated, Prisoner No. 2 was found guilty of multiple rule violations for bizarre behavior and self-harm and was subjected to BMPs, disciplinary detention and administrative segregation.
96. In July 2012, Dr. Edwards first met with Prisoner No. 2 and concluded, “In my opinion this man is simply malingering.” Dr. Edwards wrote, “[if] he is able to articulate in a more appropriate fashion what he thinks is wrong with him it might be appropriate to try him on an antidepressant. However, today he was bordering on being out of control and so in the end I did not start him on anything at this time.”
97. In a 2013 meeting, Dr. Edwards laughed at Prisoner No. 2 after he voiced negative symptoms from being unmedicated. When Prisoner No. 2 called Dr. Edwards a “prick,” Dr. Edwards threatened to send Prisoner No. 2 to 24-hour
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lock down unless he apologized, and diagnosed Prisoner No. 2 as malingering and removed Prisoner No. 2 from his medication caseload.
Prisoner No. 3 98. Prisoner No. 3 is 33 years old and has been on medications for mental health issues since he was a child. He has received diagnoses of serious mental illness throughout his life, including major depressive disorder. 99. Prisoner No. 3 has a long history of extreme self-harm. He has cut himself on numerous occasions, resulting in hospitalizations and near loss of life due to blood loss. In addition to cutting himself, he has also bitten through his own skin, ripped stitches, and reopened wounds with foreign objects. Prisoner No. 3 described self-harm impulses as coming over him “like a wave” that he is unable to resist. 100. Prisoner No. 3 has been transferred between the State Hospital and the Prison many times. On August 9, 2006, Prisoner No. 3 was found Guilty But Mentally Ill for a parole violation and sent to the State Hospital. During his stay at the Hospital he engaged in several instances of self-harm, including cutting himself with a razor and jamming screws and pencils into his arms and wounds, and sucking and biting on the injured area. 101. On or about December 1, 2006, the Forensic Review Board recommended that Prisoner No. 3 be transferred to the Prison, concluding that he
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“has showed no overt indications of mental disease or defect.” The DPHHS Director (in whose place Director Opper now stands and for whose conduct he is responsible) adopted the FRB’s recommendation and concluded that Prisoner No. 3 was “in need of long term behavior management in a more secure environment that can better protect him from the everyday items he uses to harm himself with” and recommended that the Prison continue his medications. The Administrator of the State Hospital (or his predecessor, for whose conduct he is responsible) also approved the transfer.
102. Prisoner No. 3 first learned that he was being sent from the Hospital to Prison on the day of his transfer. He states: “I didn’t know that I was being transferred to the Prison until the guards came and got me.”
103. Before DPHHS transferred Prisoner No. 3 from the State Hospital to the Prison, DPHHS did not provide the Prisoner any of the following procedural safeguards:
a. Reasonable notice that DPHHS was beginning the process that resulted in his transfer to the Prison.
b. Reasonable notice of the time and place of the meeting of the FRB at which time the Prisoner’s possible transfer would be considered.
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c. A list of the witnesses and documents that would be presented in support of the request to transfer.
d. The assistance of legal counsel in presenting his case to the FRB.
e. The opportunity at, and/or before, the meeting of the FRB: - to confront and cross examine the witnesses who were heard by the FRB; - to examine the documents that the FRB relied upon in reaching its recommendation and present testimony regarding the documents; - to present his own testimony in person; and - to present his own witnesses and documents on the subject, including without limitation treating psychologists and physicians.
f. An independent decision-maker making transfer determinations.
g. An independent evaluation by a qualified mental health professional regarding whether a transfer to the Prison would better serve the Prisoner’s custody, care, and treatment needs.
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h. A written statement by the decision-maker setting forth the basis for the transfer determination and the evidence relied upon in reaching that determination.
i. Timely notice of the recommendation of the FRB to the Director.
j. The opportunity to contest the recommendation before the Director.
k. Notice that the Director had adopted the recommendations of the FRB.
l. The opportunity to appeal the decision of the Director. 104. Prisoner No. 3 states that he did not wish to be transferred to the Prison and “I could have benefitted from longer at the Hospital. I was only there for about four months between August and December.” 105. Prisoner No. 3 spent two months in the MHTU at the Prison. While in the MHTU, he filled out a “treatment planning worksheet,” in which he listed the following ways Prison mental health staff could help him: “Be there to talk to me when I’m having problems. Groups with homework. Give me stuff to do so I can keep myself and my mind busy.” 106. Instead of giving Prisoner No. 3 the simple forms of help he requested, Prison staff transferred him to solitary confinement because the MHTU
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could not manage his self-harm behavior. Despite his GBMI sentence and previous diagnoses of mental illness, Ms. Buck concluded that Prisoner No. 3 had “no mental health history that would preclude an ad seg placement.”
107. At one point, Prison mental health staff discontinued Prisoner No. 3’s medications, based on the staff’s conclusion that “he appears to do as well/poorly, whether on or off Rx.”
108. The Prison’s most common response to Prisoner No. 3’s acts of selfharm is to place him on a BMP. He has spent significant periods of time on BMPs in 24-hour isolation, often in a padded cell. Prison staff have used force, including pepper spray, repeatedly on Prisoner No. 3 to extract him from his cell when he is engaging in self-harm. The longer he spent in solitary confinement and on BMPs, the worse his self-harm episodes became.
109. In July 2011, Prisoner No. 3 stated to Prison mental health staff that he had “been in locked housing for way too long” and was “wound up,” “stressed,” and worried about doing “something stupid” that would get him into trouble.
110. Upon being moved out of solitary confinement, in August 2011, Prisoner No. 3 murdered another prisoner. Prisoner No. 3 was found guilty of homicide and sentenced to the DOC for life without the possibility of parole.
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111. Prisoner No. 3 has since reported that within the last four months he has had four separate cutting events and needed transfusions of four pints of blood. He said, “I can’t control it.”
Prisoner No. 4 112. Prisoner No. 4 was diagnosed with bipolar disorder and schizophrenia and received various medications for those illnesses before arriving at the Prison. When the Judge sentenced him to the Prison, she recognized Prisoner No. 4’s mental health issues and “highly recommend[ed] that he be considered for placement in the mental health block at the Prison “because that seems to me that that’s going to be the best place for [him].” The Judge told Prisoner No. 4, “I would like to see things get turned around for you . . . . [Y]ou need . . . to find a person at [the Prison] that you can rely on, a person that is an employee of the [P]rison in the mental health block to be the person you look to getting answers as to how you need to act . . . .” 113. Despite the Judge’s express recommendation, Prisoner No. 4 was never placed in the MHTU at the Prison. Prison records suggest that Prisoner No. 4 spent more than half of his time at the Prison in solitary confinement. The Prison’s mental health staff stated that Prisoner No. 4 had “no known history of psychiatric problems or symptoms that would preclude Administrative Segregation for inappropriate behavior.”
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114. Within weeks of arriving at the Prison, Prisoner No. 4 told staff that he was hearing voices telling him to do things to himself and he threatened to kill himself. Shortly thereafter, Prisoner No. 4 was disciplined for smearing feces on himself, but a Prison therapist concluded that the conduct was not the result of a serious mental illness. A little more than a month later, Prisoner No. 4 was disciplined for banging his head against the wall and spreading feces on himself. In response, Prison mental health staff authorized placing Prisoner No. 4 in solitary confinement and authorized the use of a BMP. During his seven months at the Prison, Prisoner No. 4 met with Dr. Edwards just once, more than four months after his arrival.
115. Seven months after arriving at the Prison, Prisoner No. 4 was found dead in his cell as a result of hanging.
Prisoner No. 5 116. Prisoner No. 5 is 62 years old and was diagnosed with multiple serious mental illnesses before arriving at the Prison, including schizophrenia. Prisoner No. 5 hears the voice of a dog named Gene who directs him to harm himself. Prisoner No. 5 has repeatedly attempted to take out his own eyes. 117. Despite his previous diagnoses of serious mental illness, the Prison Defendants refuse to acknowledge that Prisoner No. 5 is mentally ill. Prison mental health staff have described Prisoner No. 5’s attempts to take his own eyes
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out and swallow objects as “manipulative” and “characterological,” rather than symptoms of mental illness. In 2012, Ms. Buck dismissed Prisoner No. 5’s statements about suffering visual hallucinations, stating: “it was obvious that he was making this stuff up as he went along – he isn’t delusional, it was deliberate.”
118. In 2012, Prisoner No. 5 began meeting with Dr. Edwards, who wrote, “I was informed that at some point the state hospital thought he was schizophrenic, however he does not appear to me to have anything that would necessarily be consistent with schizophrenia.” Dr. Edwards also wrote, “He claims to have an imaginary friend that he talks too [sic] and I’m highly skeptical of such complaints as this and would really not see this as being a thought disorder i.e., any kind of psychotic symptomatology. I would rather feel that he is in fact malingering.”
119. In December 2012, Dr. Edwards discontinued all of Prisoner No. 5’s medications for noncompliance without meeting with Prisoner No. 5 or investigating possible reasons for noncompliance. Prisoner No. 5’s stated reason refusing to take his medications was “the outerspace people and Gods and I don’t need any mental health medication.” Subsequently, Prisoner No. 5 received approximately 40 disciplinary violations, which Prison custody staff attributed to “medication noncompliance.”
120. Throughout 2013, Prisoner No. 5 engaged in self-harm and exhibited behavior that reflects paranoid and delusional beliefs. In April 2013, Dr. Edwards
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put him on an antipsychotic medication to treat Prisoner No. 5’s behavior, rather than a mental illness. Dr. Edwards described Prisoner No. 5 as talking “nonsense in an effort to try to fake being psychotic.” Dr. Edwards went on to explain, “[Prisoner No. 5] is current in the Max for smearing feces all over his wall that he claims was ‘an alien spaceship.’ Here again though, if one does not take into account the content of what he says, there is no evidence of a thought disorder. . . . I told him that I would see what his behavior is next week and if he stops threatening suicide, stops being manipulative, stops acting out that I would consider switching him to oral Haldol.”
121. Prison mental health staff have repeatedly approved standard disciplinary measures for Prisoner No. 5’s behavior for many years. Since 2005, Prisoner No. 5 has spent years in solitary confinement at the Prison. He reports feeling like a “young kid locked up in a closet” when he is in solitary. He spreads feces in his cell to “keep bad spirits away,” and engages in self-harm. He has been repeatedly disciplined and restrained for self-harm and behavior such as smearing feces, drinking Ajax, and swallowing glass.
Prisoner No. 6 122. Prisoner No. 6 has long-standing diagnoses of mental illness, including bi-polar disorder, post-traumatic stress disorder, and major depression.
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For many years, Prisoner No. 6 has taken lithium for his bi-polar disorder, as well as antidepressants and antipsychotic medications.
123. Prisoner No. 6 was assigned to the Prison’s MHTU on a few occasions, but his requests to return to the MHTU were denied because Prison staff concluded that his “mental illness diagnosis does not meet the criteria.”
124. The Prison Defendants have repeatedly ignored Prisoner No. 6’s mental illnesses when addressing his behavior and making his housing assignments. Prisoner No. 6 has spent more than eight years in solitary confinement. In solitary confinement, Prison mental health staff have observed Prisoner No. 6 decompensating. After years in solitary confinement, Prisoner No. 6 has expressed concern regarding his ability to reintegrate into the general prison population.
125. Prison staff have repeatedly placed Prisoner No. 6 in 24-hour isolation on BMPs for threatening to slice his throat, threatening to stab himself with pens, biting his arm and wrist and smearing the blood on the floor “to make the situation look worse than it actually was,” smearing blood on his cell, and writing a message in blood about wanting to die. Prison staff have used a taser gun and pepper spray to force Prisoner No. 6 to come out of his cell.
126. Prison mental health staff refuse to acknowledge the existence of Prisoner No. 6’s mental illness. In 2012, mental health staff concluded that
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Prisoner No. 6 was biting and picking at his arm “for the purpose of manipulating staff and receiving mental health services at his leisure.” They also concluded that his act of smearing blood on walls was “malingering his depression to gain attention.”
127. Prison staff are deliberately indifferent to the harmful effect of solitary confinement on Prisoner No. 6. In a 2011 document, Prison staff wrote that they were placing Prisoner No. 6 in solitary confinement with the goals of: “learn to deal with depression,” “learn to refrain from this type of behavior by working on his ‘people skills’ and thinking before he reacts,” and finding ways to “occupy his mind.”
128. After meeting with Prisoner No. 6, Dr. Edwards wrote, “I think most of his complaints were involving being in locked housing but I explained to him that there wasn’t anything I could do about that.”
129. When Prisoner No. 6 expressed frustration that Dr. Edwards was not trying to get to know him, Dr. Edwards wrote: “getting to know him is really not my job but rather medication management is what my job is.”
130. Dr. Edwards’ approach to medication management consisted of discontinuing the medication Prisoner No. 6 had been using to control his mental illness. In 2012, Dr. Edwards concluded that Prisoner No. 6 did not have bipolar disorder, despite previous diagnoses of that illness. Dr. Edwards then discontinued
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Prisoner No. 6’s lithium prescription. Prisoner No. 6 repeatedly asked to be restarted on lithium. In one request he wrote, “I need help not put on a shelf or really put in a cell 24/7 to hurt and feel hopeless and frustrated.” Dr. Edwards characterized those requests as “gamey” manipulation and wrote to Prisoner No. 6, “Unless you have evidence of mania (and you never have) I will not restart you on lithium” and “I will not restart you on Lithium because you do not have Bipolar disorder.” In his notes, Dr. Edwards wrote, “I think this man has too much suicide potential to be placed on something that would kill him anyway.”
Prisoner No. 7 131. Prisoner No. 7 is 70 years old and has received several mental illness diagnoses during his life, including schizophrenia, bi-polar disorder, major depression and personality disorders. 132. Prisoner No. 7’s mental illness manifests itself in, among other things, numerous acts of extreme self-mutilation. Over many years, Prisoner No. 7 has swallowed safety pins, razor blades, paper clips, needles, spoons, nails, and tacks. He has also inserted objects into his penis, including paper clips, foil and copper wires. Prisoner No. 7 has had over 30 stomach surgeries for swallowing foreign objects. 133. Prison staff view Prisoner No. 7’s acts of self-harm as “manipulative” and “not the result of serious mental illness.” Prison staff have housed Prisoner
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No. 7 in solitary confinement for several years, and have placed him on BMPs numerous times in response to his acts of self-harm.
134. From approximately 2005 to 2012, Prisoner No. 7 was prescribed a combination of medications that worked well for him, including Prozac, Lithium, Seroquel and Propranolol. During this time he engaged in few self-harm behaviors and worked as a janitor in the prison.
135. This all changed when Dr. Edwards began seeing Prisoner No. 7. Despite Prisoner No. 7’s consistent, historic diagnoses of major depression, Dr. Edwards concluded: “Axis I: Chart states major depression, but I don’t see any evidence for that.” Three months later, Dr. Edwards diagnosed Prisoner No. 7 with no Axis I mental health disorder.
136. In December 2012, Dr. Edwards wrote “it’s my understanding that [Prisoner No. 7] used to be quite a behavioral problem and he has been better behaviorally on this particular med regimen.” Despite this, the following month Dr. Edwards discontinued all of Prisoner No. 7’s medications because he had failed to comply with “pill pass” requirements. Prisoner No. 7 subsequently apologized for not going to pill pass and requested that his prescriptions be restarted. Dr. Edwards restarted and then discontinued several of Prisoner No. 7’s medications over the following months.
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137. Without his medications, Prisoner No. 7 began engaging in self-harm, including swallowing paperclips in 2013. In response, Dr. Edwards noted “in the past he has been so destructive to himself at this facility that he has cost the taxpayers hundreds of thousands of dollars. It’s my understanding that he actually has so much scar tissue that he cannot be operated again so at this point and time they’re simply monitoring where the paperclips are in his GI track.” Dr. Edwards concluded, “I don’t believe that any of these medications he has ever been on have been helpful to him. . . . I do not think that any kind of medication is going to be of much benefit and the most benefit that he would get is a placebo effect. Obviously I am not able to stop him from doing mutilation stop [sic] mutilation such as he recently did in regards to swallowing paper clips.”
138. When Prisoner No. 7 went to the Deer Lodge Medical Center for abdominal pain from swallowing paper clips, the physician there prescribed both antidepressant and antipsychotic medications for Prisoner No. 7.
139. In August 2013, Prisoner No. 7 was denied parole. In the report to the parole board, his case manager stated, “I am unable to support a release at this time without an extensive mental health component and an updated positive psychological report.”
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Prisoner No. 8 140. Prisoner No. 8 was 23-years old when he was sent to the Prison in February 2013. Prior to arriving at the Prison, he had spent two years at Yellowstone County Detention Facility (“YCDF”), where medical and mental health staff noted that he suffered from anxiety and depression and prescribed him antidepressants. 141. In June 2011, Prisoner No. 8’s mother died in a house fire. A few days later, he attempted to commit suicide by slashing his neck twice with a razor at YCDF. Medical reports indicated that he lost approximately one liter of blood as a result of his wounds. During the months afterward, Prisoner No. 8 continued to tell medical staff that he suffered from growing depression and anxiety. 142. Upon arriving at the Prison, Prisoner No. 8 informed medical and mental health staff of his suicide attempt, that he suffered from mental illness, that he believed he had bi-polar disorder and schizophrenia, and that he had been prescribed several medications for his mental illness. Nevertheless, Prison mental health staff determined that he had “no significant” mental health needs. 143. Prisoner No. 8 first met with Dr. Edwards in March 2013. In his meeting notes, Dr. Edwards dismissed the seriousness of Prisoner No. 8’s suicide attempt. He wrote: “[Prisoner No. 8] reports that he attempted suicide in 2011 by
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cutting his throat when his mother dies [sic]. However, I actually couldn’t even see a scar so it must not have been very serious.”
144. In May 2013, just three months after arriving at the Prison, Prisoner No. 8 was placed in solitary confinement for 90 days as a result of rule violations. In June 2013, Dr. Edwards met with Prisoner No. 8, but made no mention in his meeting notes of Prisoner No. 8 suffering from depression or other mental illnesses. However, Dr. Edwards wrote, “I am going to have one of the techs count his meds to make sure he has the right number within the next week or so.”
145. Prisoner No. 8 was released from solitary confinement on August 14, 2013. Nine days later corrections officers found him dead in his cell. Although no cause of death has been announced, medical staff who attempted to resuscitate Prisoner No. 8 were concerned that he had overdosed on drugs.
Prisoner No. 9 146. Prisoner No. 9 was found guilty, but mentally ill, of criminal endangerment and sentenced to the custody of the Director of DPHHS on March 27, 2013. The Director promptly placed him at the Montana State Hospital where he was diagnosed as suffering from paranoid schizophrenia and was treated with Seroquel.
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147. On October 7, 2013, after approximately six months at the Hospital, Prisoner No. 9 was transferred from the Hospital to the Prison. Both Director Opper and Administrator Gluekert approved the transfer.
148. No one at the Hospital informed Prisoner No. 9 that DPHHS was considering transferring him to the Prison. Indeed, he was being encouraged by the staff to continue to work toward classification level number 7 to give him a better chance at making parole. On the day that he was taken from the Hospital, he submitted a request to Dr. Virginia Hill to meet with the FRB to consider reclassifying him. Dr. Hill did not inform Prisoner No. 9 that his transfer to the Prison was imminent.
149. While attending group therapy later in the day, a mental health technician removed him from his activity and took him to two prison guards who transported him to the Prison. He did not know where he was being taken until he arrived at the Prison.
150. Before DPHHS transferred Prisoner No. 9 from the State Hospital to the Prison, the Director and the Administrator (and the Department as a whole) failed to provide Prisoner No. 9 with procedural safeguards necessary to comport with due process. Facilitating Prisoner No.9's transfer with no notice or opportunity to be heard, the Director and Administrator allowed guards to remove
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him from the Hospital to the Prison without providing to him or ensuring that he then received (or had earlier received) any of the following:
a. Reasonable notice that DPHHS was beginning the process that resulted in his transfer to the Prison.
b. Reasonable notice of the time and place of the meeting of the FRB at which time Prisoner No. 9’s possible transfer would be considered.
c. A list of the witnesses and documents that would be presented in support of the request to transfer.
d. The assistance of legal counsel in presenting his case to the FRB.
e. The opportunity at, and/or before, the meeting of the FRB: - to confront and cross examine the witnesses who were heard by the FRB; - to examine the documents that the FRB relied upon in reaching its recommendation and present testimony regarding the documents; - to present his own testimony in person; and
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- to present his own witnesses and documents on the subject, including without limitation treating psychologists and physicians.
f. An independent decision-maker making transfer determinations.
g. An independent evaluation by a qualified mental health professional regarding whether a transfer to the Prison would better serve the Prisoner’s custody, care, and treatment needs.
h. A written statement by the decision-maker setting forth the basis for the transfer determination and the evidence relied upon in reaching that determination.
i. Timely notice of the recommendation of the FRB to the Director.
j. The opportunity to contest the recommendation before the Director.
k. Notice that the Director had adopted the recommendations of the FRB.
l. The opportunity to appeal the decision of the Director. 151. After arriving at the Prison, Prisoner No. 9 was interviewed by Dr. Edwards who took him off his medications and told him that he was “not sick.”
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152. Prisoner No. 9 did not want to be transferred from the Hospital to the Prison and believes that the Hospital provided him with a better therapeutic environment.
Prisoner No. 10 153. Prisoner No. 10 was 32 years old when he was sent to the Prison from Gallatin County jail on or about May 12, 2014. Approximately one week before he was scheduled for transfer to the Prison, Prisoner No. 10 attempted suicide in his cell by biting a hole in his wrist approximately two inches in diameter. Questioned by a police officer at the hospital later that day, Prisoner No. 10 stated that he believed he was the son of God and has been alive for one thousand years. Prisoner No. 10 also stated that he believed his brother was the devil, becomes a spirit and possesses other people’s bodies in order to torment him, and tells him to commit acts of destruction. He also stated that he believed the jail was designed to “keep his mind locked up” and that someone or something had erased his memory. 154. Prisoner No. 10 started taking the antidepressant Citalopram to treat an apparent anxiety disorder approximately three days before this suicide attempt. 155. Prisoner No. 10 went through an initial clinical intake assessment the day he arrived at the Prison. The nurse who assessed him wrote that Prisoner No. 10 needed to be followed up with “soon” because of his recent suicide attempt and “emotionally sad” demeanor.
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156. The nurse who completed Prisoner No. 10’s Level 2 clinical intake assessment after his arrival at the Prison wrote in her report that Prisoner No. 10 complained that “a device has been drilled into, or implanted into my head.” She also wrote that Prisoner No. 10 was “sad,” “depressed,” and “dysthymic.” However, she did not recommend a psychiatric evaluation or treatment, psychological testing, or placement in a mental health group.
157. On June 20, 2014, Prisoner No. 10 became agitated during a trip to the infirmary and refused to leave when asked. When confronted by corrections officers, Prisoner No. 10 declared that his name was “Jesus” and accused Prison staff of trying to poison his food and water. He was subdued and placed in a Locked Housing unit.
158. The prison investigator recommended discipline for Prisoner No. 10 instead of mental health treatment, concluding that Prisoner No. 10’s behavior was “not symptomatic of a mental illness that would prevent knowledge of his actions.” Prisoner No. 10 was sentenced to 11 days in Locked Housing, retroactive to the date of the incident, during which time he was placed in solitary confinement.
159. Prisoner No. 10 met with Dr. Edwards on June 30, 2014. Dr. Edwards dismissed the import of Prisoner No. 10’s suicide attempt, writing “I think that was because he is in prison.” Prisoner No. 10 also told Dr. Edwards that he believed he was one thousand years old and had a device implanted in his head, but Dr.
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Edwards dismissed both of these claims as “feigned” psychosis. Dr. Edwards concluded that Prisoner No. 10 was not mentally ill “but I think he is probably most unhappy about being incarcerated at this point and [sic] time.” Dr. Edwards also concluded that Prisoner No. 10’s behavior and psychotic beliefs were evidence of “just frank malingering and being uncooperative” and the side effects of past substance abuse. He made no recommendations for mental health treatment or medication for Prisoner No. 10.
160. Prisoner No. 10 attempted suicide again on or about July 3, 2014, again by trying to chew through his arm and wrist. Corrections officers found him covered in blood and ordered him to submit to handcuffing at the door of his cell. When Prisoner No. 10 refused, the officers entered his cell and subdued him.
161. Prison records show that the corrections nurse who treated Prisoner No. 10 after this incident requested that he receive “urgent services.” Another health professional noted in Prisoner No. 10’s file that he should be monitored around the clock because of the threat that he would attempt suicide or engage in other self-harm. Dr. Edwards again took no action, writing that he had already seen Prisoner No. 10 and determined that he was “not psychotic.” Instead of receiving mental health treatment, Prisoner No. 10 was once again placed in a Locked Housing unit.
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162. In an e-mail dated July 8, 2014, Jill Buck wrote, “the mental health department feels [Prisoner No. 10] knowingly, willingly, and purposely engaged in self-harm behavior and should be held accountable for his actions.”
163. At his disciplinary hearing on July 11, 2014, Prisoner No. 10 was found guilty of infractions for refusing to obey a direct order, engaging in selfharm, and obstructing and hindering prison staff. He was sentenced to ten days in Locked Housing, retroactive to the date of the incident, during which time he was placed in solitary confinement.
164. On or about July 18, 2014, Prisoner No. 10 again tried to commit suicide by chewing through his arm and wrist and taking approximately 50 multivitamin tablets. On that same day, corrections officers observed Prisoner No. 10 drinking out of the toilet in his cell after he had fallen and hit his head on it. Rather than prescribe mental health treatment for Prisoner No. 10, Prison officials placed him on a BMP for “hindering” prison staff and once again sent him to a Locked Housing unit. Prison records show that the “hindering” charge was based on the fact that attending to Prisoner No. 10’s suicide attempt “caused the day to day operations of the unit to fall behind schedule.”
165. Medical records indicate that Prisoner No. 10 informed the medical professional who treated him at Deer Lodge Hospital following this incident that he bit his wrists and tried to suck his own blood “out of fear of metals in his
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blood.” These records also show that Deer Lodge Hospital recommended that Prisoner No. 10 receive “psychiatric follow up at the prison.”
166. According to notes taken by an investigator during an interview with Prisoner No. 10 four days later, Prisoner No. 10 told the investigator, “Look at me. I need serious medical attention. You guys just throw me in the hole. You’re hoping I . . . die. You’re trying to kill me!” The investigator dismissed Prisoner No. 10’s pleas for appropriate medical care, concluding that Prisoner No. 10 was unable “to focus on this incident rather than his accusations that [Prison] staff are neglecting him.”
167. At his subsequent disciplinary hearing, Prisoner No. 10 was found guilty of infractions for engaging in self-harm and for obstructing and hindering prison staff. He was sentenced to 11 days in Locked Housing, retroactive to the date of the incident, during which time he was placed in solitary confinement.
168. On August 4, 2014, a doctor treating Prisoner No. 10 observed that he suffered from “apparent persecutory delusions” and requested that his mental health be assessed “ASAP.” According to prison records, the only action taken was to send a “mental health technician” to perform a wellness check on Prisoner No. 10.
169. On August 30, 2014, a corrections nurse treated Prisoner No. 10 for reopening the wounds on his arm and requested that Prisoner No. 10 be assessed
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for continued self-harm. Once again, Dr. Edwards did not recommend any mental health treatment of Prisoner No. 10.
170. Throughout his time at the Prison, Prisoner No. 10 repeatedly appeared for “wellness checks” conducted by unqualified mental health technicians rather than qualified mental health professionals.
171. On September 23, 2014, Prisoner No. 10 was found sleeping in his cell near a plastic bag filled with blood. He refused to be handcuffed when directed by the corrections officers. Instead, he began flushing objects down the toilet in his cell. The corrections officers eventually entered the cell, secured Prisoner No. 10, and escorted him to the infirmary. He was later transferred to Locked Housing and placed in solitary confinement.
172. In a report on the incident, one of the corrections officers wrote that he found two bottles of orally ingestible pain reliever and two plastic deodorant rolls. Prisoner No. 10 had apparently broken one of the deodorant rolls to create several sharp pieces of plastic. That officer wrote, “[i]t is my [s]peculation that [Prisoner No. 10] is breaking the cases on [sic] deoderant [sic] to make a sharpened object to cut with, he is using the oral pain reliever as a numbing agent so he can cut himself. He closes the wound and covers it with deoderant [sic] to seal [the] wound area so it wont [sic] bleed but keep the area moist enough so he can continue cutting later.”
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173. The following day, Prisoner No. 10 was found dead in his Locked Housing cell. Although the official cause of death has not been released, prison records indicate his body was found on the floor “laying in a pool of blood under his blankets.” When prison staff found Prisoner No. 10’s body, they noted the blood on the floor had dried, his skin was cold, and rigor mortis had already begun to set in, all of which indicated he had been dead for several hours. Hand-written notes were discovered near Prisoner No. 10’s body.
The Prison Defendants Are Deliberately Indifferent To The Medical Needs Of Prisoners With Serious Mental Illness
174. All of the Prison Defendants are well-aware that the Prison’s treatment and care of prisoners with serious mental illness does not satisfy constitutional requirements. In its 2003 decision in Walker v. State, 2003 MT 134, 316 Mont. 103, 68 P.3d 872 (Mont. 2003), the Montana Supreme Court made it very clear that the Prison has a constitutional obligation to provide prisoners with appropriate mental health treatment and to eliminate disciplinary practices that exacerbate prisoners’ mental illnesses. The Court concluded that the Prison’s “behavior management plans” and living conditions constitute cruel and unusual punishment when they exacerbate the prisoner’s mental health condition.
175. In 2009, the DOC faced another lawsuit, Katka v. State, No. BDV 2009-1163 (1st Jud. Dist. Ct., Lewis and Clark Co.) challenging the Prison’s treatment and discipline practices for juveniles with mental illness. The DOC
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resolved Katka by entering into a 2012 settlement agreement requiring the Prison to implement changes regarding its housing and treatment of prisoners with serious mental illness and treatment of suicidal prisoners. Throughout discovery in that case, Prison officials heard from mental health experts addressing the deficiencies in the Prison’s use of solitary confinement and inadequate mental health treatment.
176. The Prison Defendants know that numerous national standards prohibit the practices they are engaging in with respect to prisoners with serious mental illness.
177. National Commission on Correctional Health Care Standards for Mental Health Services in Correctional Facilities, MH-E-07, states: “Inmates who are seriously mentally ill should not be confined under conditions of extreme isolation.” The Prison was accredited by the National Commission on Correctional Health Care in 2011.
178. American Correctional Association Standards for Adult Correctional Institutions 4-4249 states: “Total isolation as punishment for a rule violation is not an acceptable practice.”
179. American Bar Association Treatment of Prisoner Standards, 23-6:11, states: “Prisoners diagnosed with serious mental illness should not be housed in settings that may exacerbate their mental illness or suicide risk, particularly in settings involving sensory deprivation or isolation.”
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180. Society of Correctional Physicians’ Position Statement on Restricted Housing of Mentally Ill Inmates states: [P]rolonged segregation of inmates with serious mental illness, with rare exceptions, violates basic tenets of mental health treatment. Inmates who are seriously mentally ill should be either excluded from prolonged segregation status (i.e., beyond 4 weeks) or the conditions of their confinement should be modified in a manner that allows for adequate out-of-cell structured therapeutic activities and adequate time in an appropriately designed outdoor exercise area.” Several other related standards exist in addition to those listed in this Complaint.
181. In addition, Prisoners with serious mental illness regularly request and grieve the level of mental health care they are provided, including the negative impact of isolation, mental health staff discontinuing their needed medications and mental health staff ignoring previous diagnoses. In 2012 alone, Ms. Buck publicly stated that mental health staff answered over 2,000 mental health requests. Several prisoners have appealed the inadequacy of the mental health treatment they receive to the Prison Warden and ultimately to the DOC Director.
182. The Prison is regularly contacted by family members of prisoners with serious mental illness begging for their loved one to be put back on needed medications discontinued by Prison mental health staff. All of the Prison Defendants are aware of this.
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183. In addition, DRM has repeatedly informed Prison officials of the serious deficiencies in the Prison’s treatment of prisoners with serious mental illness.
184. On February 26, 2014, DRM sent Director Batista and Director Opper a letter describing all of the facts alleged in this Complaint. To DRM’s knowledge, to date, neither DOC nor DPHHS has made any modifications in their treatment of prisoners with serious mental illness.
COUNT I Denial of Procedural Due Process in Violation of the Fifth and
Fourteenth Amendments to the United States Constitution 185. DRM incorporates the allegations of paragraphs 1 - 184 as if fully restated here. 186. Individuals who have been found by a court to be Guilty But Mentally Ill and committed to the custody of DPHHS possess a liberty interest to be free from arbitrary transfers out of the State Hospital and into other facilities, when the result of such transfers will be detrimental to the GBMI individual’s custody, care, and treatment needs. 187. The GBMI individual’s liberty interest arises through statutory and constitutional law. For example, § 46-14-312, MCA requires the Director of DPHHS to transfer individuals sentenced GBMI to the Prison only if the Prison “will better serve the [patient’s] custody, care and treatment needs,” and only after
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due consideration of the recommendations of the professionals providing treatment to the defendant and recommendations of the professionals who have evaluated the defendant. Montana Code Ann. § 53-21-142(B) further guarantees that individuals who are committed to the State Hospital will have “the least restrictive conditions necessary to achieve the purpose of commitment;” conditions can “restrict the patient’s liberty only to the extent necessary and consistent with the patient’s treatment need, applicable requirements of law, and judicial orders.”
188. As described above, GBMI individuals are arbitrarily transferred out of the State Hospital, in violation of law, and without proper notice and a fair opportunity to challenge the transfer decision. These arbitrary transfers inevitably result in the intentional, cruel and unusual deprivation of necessary mental health treatment to GBMI individuals, under more restrictive conditions.
189. By arbitrarily transferring individuals sentenced Guilty But Mentally Ill to the Prison without due consideration of the individuals’ custody, care and treatment needs, and without fair notice and an opportunity to be heard, defendants Opper and Gluekert deprive those individuals of procedural due process in violation of the Fifth and Fourteenth Amendments to the United States Constitution.
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COUNT II Cruel and Usual Punishment in Violation of the
Eighth Amendment to the U.S. Constitution 190. DRM incorporates the allegations of paragraphs 1 - 189 as if fully restated here. 191. By their policies, practices, and acts, the Prison Defendants violate the right of prisoners with serious mental illness to be free from cruel and unusual punishment as guaranteed by the Eighth Amendment to the U.S. Constitution, enforceable through 42 U.S.C. § 1983. 192. As a matter of policy and practice, the Prison Defendants impose periods of solitary confinement and other forms of punishment upon prisoners with serious mental illness that lead to the deterioration of their mental health. 193. As a matter of policy and practice, the Prison Defendants fail to provide adequate medical care to prisoners with serious mental illness, which leads to the deterioration of the prisoners’ mental health. 194. The Prison Defendants have long been aware of deleterious consequences of these conditions of confinement that they impose on prisoners with serious mental illness, but have failed to take reasonable corrective action. 195. By imposing these conditions of confinement while being aware of the resulting deleterious effects, the Prison Defendants are acting with deliberate
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indifference to the serious medical needs of, and the substantial risk of harm to, prisoners with serious mental illness.
COUNT III Violation of the Americans with Disabilities Act 196. DRM incorporates the allegations of paragraphs 1 - 195 as if fully restated here. 197. DRM’s constituents are qualified individuals with disabilities as defined in the Americans with Disabilities Act (“ADA”). They have mental impairments that substantially limit one or more major life activity, including but not limited to thinking, concentrating, interacting with others, and controlling their behavior. As state prisoners, all of DRM’s constituents meet the essential eligibility requirements for receipt of services or the participation in programs or activities provided by the Montana DOC. 198. The DOC is a public entity as defined under Title II of the ADA, 42 U.S.C. § 12131(1)(B). 199. The Prison Defendants knowingly and consistently discriminate against mentally disabled prisoners by failing to provide them with reasonable accommodation for their disabilities and punishing them for behavior that is a product of their disability.
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200. By placing prisoners with serious mental illness in solitary confinement, the Prison Defendants have denied prisoners with serious mental illness the benefits of the facility’s services, programs and activities, including education, programming, recreation, exercise, and mental health treatment and services, thus discriminating against DRM’s constituents on the basis of their disability in violation of 42 U.S.C. § 12132. Discrimination against prisoners with serious mental illness occurs particularly because such prisoners cannot receive metal health services sufficient to counteract the effects solitary confinement, behavior management plans, and other forms of punishment have on mentally ill prisoners, which is distinct from the impact it has on prisoners who are not mentally ill.
201. The Prison Defendants discriminate against prisoners with serious mental illness on the basis of their disabilities. Prison Defendants routinely warehouse prisoners with serious mental illness in solitary confinement. Plaintiff believes discovery will show that the Prison Defendants disproportionally place prisoners with serious mental illness in solitary confinement.
202. By placing prisoners with serious mental illness in solitary confinement and imposing behavior management plans and other forms of punishment, the Prison Defendants (a) have failed to furnish reasonable accommodation to prisoners with disabilities; (b) punish prisoners with serious
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mental illnesses for disability-related conduct; and (c) deprive prisoners with serious mental illnesses of access to adequate mental health service.
COUNT IV Violation of Section 504 of the Rehabilitation Act of 1973 203. DRM incorporates the allegations of paragraphs 1 - 202 as if fully restated here. 204. DRM’s constituents are qualified individuals with disabilities as defined in Section 504 of the Rehabilitation Act of 1973. They have mental impairments that substantially limit one or more major life activity, including but not limited to thinking, concentrating, interacting with others, and controlling their behavior; they have records of having such an impairment; or they are regarded as having such an impairment. As state prisoners, all of DRM’s constituents meet the essential eligibility requirements for receipt of services or the participation in programs or activities provided by the DOC. 205. The DOC administers a program or activity that receives federal financial assistance. 206. The Defendants discriminate against mentally disabled prisoners by failing to provide reasonable accommodation for their disabilities. 207. The Prison Defendants discriminate against mentally disabled prisoners solely on the basis of their disabilities in violation of Section 504.
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208. In placing prisoners with serious mental illness in solitary confinement, the Prison Defendants have denied prisoners with serious mental illness the benefits of the facility’s services, programs and activities, including education, programming, recreation, exercise and mental health services, thus discriminating against DRM’s constituents on the basis of their disability in violation of 29 U.S.C. § 794.
PRAYER FOR RELIEF WHEREFORE, plaintiff Disability Rights Montana, Inc. prays for an order and judgment in which this Court: A. Exercises continuing jurisdiction over this action; B. Issues declaratory judgment that the DPHHS Defendants’ acts violate the prisoners’ rights to due process protected by the U.S. Constitution and that these acts and omissions continue to cause an ongoing risk of the violation of those rights; C. Issues declaratory judgment that the Prison Defendants’ acts violate the Eighth Amendment to the U.S. Constitution, and that these acts and omissions continue to cause an ongoing risk of the violation of those rights; D. Issues declaratory judgment that the Prison Defendants’ acts constitute discrimination in violation of the Rehabilitation Act, 29 U.S.C. §794, and the Americans with Disabilities Act of 1990, 42 U.S.C. §12132;
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E. Issues injunctive relief to stop the constitutional and statutory violations described above, including injunctive relief that does the following:
1. Requires the DPHHS Defendants to take immediate steps that ensure that individuals sentenced Guilty But Mentally Ill to the Department of Health and Human Services receive adequate due process prior to transfer to the Montana State Prison;
2. Requires the Prison Defendants to take immediate steps to ensure that individuals with serious mental illness incarcerated at the Montana State Prison receive constitutionally adequate mental health care;
3. Enjoins the Prison Defendants from placing prisoners with serious mental illness from in solitary confinement;
F. Retains jurisdiction of this case until the Prison Defendants have fully complied with the orders of this Court, and there is a reasonable assurance that Defendants will continue to comply in the future absent continuing jurisdiction;
G. Awards reasonable attorneys’ fees, litigation expenses, and costs pursuant to 42 U.S.C. § 1988, 42 U.S.C. § 12205 and/or 42 U.S.C. § 794a; and
H. Orders all other relief the Court deems appropriate.
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Dated: October 31, 2014

s/Jeffrey A. Simmons Jeffrey A. Simmons (Pro Hac Vice) Foley & Lardner LLP 150 East Gilman Street Madison, WI 53703-1482 Telephone: (608) 258-4267 Email: jsimmons@foley.com
s/Jon E. Ellingson Jon E. Ellingson James Park Taylor ACLU of Montana 241 E. Alder Missoula, MT 59807 Telephone: (406) 549-6159 Email: jpt42@hotmail.com jonelling@gmail.com
Tammy H. Boggs (Pro Hac Vice) Foley & Lardner LLP 3579 Valley Centre Drive, Suite 300 San Diego, CA 92130 Telephone: (858) 847-6700 Email: tboggs@foley.com
Anna Conley Attorney At Law P.O. Box 9101 Missoula, MT 59807 Telephone: (406) 830-0367 Email: anna@annaconley.com

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Kyle A. Gray Adrian A. Miller Holland & Hart LLP 401 N. 31st Street, Suite 1500 Billings, MT 59101-1277 Telephone: (406) 252-2166 Email: kgray@hollandandhart.com aamiller@hollandhart.com Attorneys for Plaintiff Disability Rights Montana, Inc.
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James Park Taylor Jon E. Ellingson ACLU of Montana 241 E. Alder P.O. Box 9138 Missoula, MT 59807 Telephone: (406) 549-6159 Email: jpt42@hotmail.com
jone@aclumontana.org

Kyle A. Gray Adrian A. Miller Holland & Hart LLP 401 N. 31st Street Suite 1500 Billings, MT 59101-1277 Telephone: (406) 252-2166 Email: kgray@hollandandhart.com
aamiller@hollandhart.com

Jeffrey A. Simmons Foley & Lardner LLP 150 East Gilman Street Madison, WI 53703-1482 Telephone: (608) 258-4267 Email: jsimmons@foley.com

Anna Conley Attorney At Law P.O. Box 9101 Missoula, MT 59807 Telephone: (406) 830-0367 Email: anna@annaconley.com

Attorneys for Plaintiff Disability Rights Montana, Inc.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BUTTE DIVISION

DISABILITY RIGHTS MONTANA, )

INC., on behalf of all persons sentenced )

to the custody of the Montana

)

Department of Public Health and Human )

Services as Guilty But Mentally Ill and )

who have been or may be transferred )

from the Montana State Hospital to the )

Montana State Prison,

)

)

Plaintiff,

)

)

vs.

)

)

RICHARD OPPER, in his official

)

capacity as Director of the Montana

)

Civil No. CV-14-25-BU-SEH
SECOND AMENDED COMPLAINT AS TO DEFENDANTS OPPER AND
GLUECKERT

Case 2:14-cv-00025-SEH Document 67 Filed 05/08/15 Page 2 of 13

Department of Public Health and Human )

Services; and

)

)

JOHN GLUECKERT, in his official

)

capacity as Administrator of the Montana )

State Hospital;

)

Defendants.

For its Second Amended Complaint against Defendants Richard Opper and John Glueckert, plaintiff Disability Rights Montana, Inc. (“DRM”) alleges as follows:
1. This is an action brought on behalf of all prisoners who have been sentenced to the custody of the Montana Department of Public Health and Human Services (“DPHHS”) as “Guilty But Mentally Ill” (“GBMI”) and who have been or may be transferred to the Montana State Prison, pursuant to Mont. Code Ann. § 4614-312. DRM brings claims on behalf of these prisoners pursuant to 42 U.S.C. § 1983 for ongoing violations of their right to procedural due process under the Fifth and Fourteenth Amendments of the United States Constitutions.
THE PARTIES 2. Plaintiff DRM is a not-for-profit Montana corporation and the authorized protection and advocacy agency for Montana pursuant to the federal Protection and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. § 10801 et seq. Among other things, DRM is authorized by federal law to pursue

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legal remedies to ensure that individuals with mental illness in state institutions are protected from abuse and neglect. Because prisoners with mental illness are DRM’s constituents, DRM has associational standing to bring claims on behalf of prisoners with mental illness as alleged in this lawsuit.
3. Individuals who have received or are receiving mental health services, or their family members, are substantially involved in DRM’s governance, including serving on DRM’s board of directors. DRM’s board of directors is comprised of ten members, two of whom either have received or are receiving mental health services, and three of whom have family members who have received or are receiving mental health services. DRM’s advisory council has eight members, seven of whom either have received or are receiving mental health services and one of whom has a family member who has received or is receiving mental health services.
4. Defendant Richard Opper is Director of DPHHS and is sued in his official capacity. At all times relevant to this Second Amended Complaint Director Opper was acting within the scope of his employment and under color of state law in his capacity as Director of DPHHS. The Director of DPHHS is the custodian of every GBMI individual until the sentence of the individual is completely served or until the sentence is amended to remove the individual from the custody of the Director and transfer the individual to the Department of
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Corrections pursuant to § 46-14-312 (3) and (4), MCA, regardless of whether the individual is housed at the Montana State Hospital (“State Hospital” or “Hospital”) or the Prison. In his official capacity, Director Opper is responsible for administering the policies and practices at issue with respect to the claim against him and has the authority to implement the relief sought in this action.
5. Defendant John Glueckert is the Administrator of the State Hospital and is sued in his official capacity. At all times relevant to this Second Amended Complaint, Mr. Glueckert was acting within the scope of his employment and under color of state law in his capacity as Administrator of the State Hospital. No recommendation to the Director of DPHHS for transferring a GBMI prisoner is made without the approval of the Administrator of the State Hospital. In his official capacity, Mr. Glueckert is responsible for administering the policies and practices at issue with respect to the claim against him and has the authority to implement the relief sought in this action.
6. Defendants Opper and Glueckert are referred to collectively as the “DPHHS Defendants.”
JURISDICTION AND VENUE 7. This court has jurisdiction of DRM’s claims pursuant to 28 U.S.C. §§ 1331 and 1343.
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8. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b), and is proper in this Division pursuant to Local Rule 3.2(b), inter alia, because the unlawful transfers from the State Hospital occurred in Deer Lodge County.
9. This Court has authority pursuant to 42 U.S.C. § 1983 to order injunctive and declaratory relief.
COUNT I Denial of Procedural Due Process in Violation of the Fifth and Fourteenth
Amendments to the United States Constitution 10. DRM incorporates the allegations of paragraphs 1 - 9 as if fully restated here. 11. DRM alleges that the DPHHS Defendants have violated the right of individuals sentenced Guilty But Mentally Ill to procedural due process as provided by the Fifth and Fourteenth Amendments to the United States Constitution. 12. DRM brings this claim on behalf of all individuals who have been sentenced by a court as Guilty But Mentally Ill and have been transferred or may be transferred from the State Hospital to the State Prison without procedural due process. 13. Individuals who have been found by a court to be Guilty But Mentally Ill and committed to the custody of DPHHS possess a liberty interest to be free from transfers out of the State Hospital and into other facilities, when the result of
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such transfers may be detrimental to the GBMI individuals’ custody, care, and treatment needs.
14. The GBMI individuals’ liberty interest arises through statutory and constitutional law. For example, § 46-14-312, MCA, requires the Director of DPHHS to transfer individuals sentenced GBMI to the Prison only if the Prison “will better serve the [patient’s] custody, care and treatment needs,” and only after due consideration of the recommendations of the professionals providing treatment to the defendant and recommendations of the professionals who have evaluated the defendant. Montana Code Ann. § 53-21-142(B) further guarantees that individuals who are committed to the State Hospital will have “the least restrictive conditions necessary to achieve the purpose of commitment;” conditions can “restrict the patient’s liberty only to the extent necessary and consistent with the patient’s treatment need, applicable requirements of law, and judicial orders.”
15. The DPHHS Defendants have engaged in a consistent and ongoing practice of transferring GBMI individuals from the State Hospital to the State Prison without procedural due process. DRM is aware of at least four instances in which the DPHHS Defendants transferred GBMI individuals from the State Hospital to the State Prison without any of the following procedural safeguards:
a. Reasonable notice that DPHHS was beginning the process that resulted in the individual’s transfer to the Prison.
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b. Reasonable notice of the time and place of the meeting of the Forensic Review Board (“FRB”) at which time the individual’s possible transfer would be considered.
c. A list of the witnesses and documents that would be presented in support of the request to transfer.
d. The assistance of legal counsel in presenting the individual’s case to the FRB.
e. The opportunity at, and/or before, the meeting of the FRB: - to confront and cross examine the witnesses who were heard by the FRB; - to examine the documents that the FRB relied upon in reaching its recommendation and present testimony regarding the documents; - to present his own testimony in person; and - to present his own witnesses and documents on the subject, including without limitation treating psychologists and physicians.
f. An independent decision-maker making transfer determinations.
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g. An independent evaluation by a qualified mental health professional regarding whether a transfer to the Prison would better serve the individual’s custody, care, and treatment needs.
h. A written statement by the decision-maker setting forth the basis for the transfer determination and the evidence relied upon in reaching that determination.
i. Timely notice of the recommendation of the FRB to the Director.
j. The opportunity to contest the recommendation before the Director.
k. Notice that the Director had adopted the recommendations of the FRB.
16. DPHHS currently reports that it transfers to the Department of Corrections an average of three GBMI individuals annually.
17. The opportunity to appeal the decision of the Director. In all four instances known to DRM, the GBMI individuals did not learn of the decision to transfer them to the State Prison until the day the transfer occurred. These unlawful transfers began at least as early as 2007 and the most recent of these transfers known to DRM occurred in December 2013.
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18. The four prisoners described above are James Larson, James Patrick, Shaun Morrison, and Justin Bear. All four of these prisoners have a history of suffering from serious mental illness.
19. James Larson has a history of suffering from schizophrenia. 20. James Patrick has a history of psychotic disorders. 21. Shaun Morrison has a history of major depressive disorder. 22. Justin Bear has a history of schizophrenia. 23. DRM believes that the DPHHS Defendants’ practice of denying GBMI individuals procedural due process is ongoing because of DPHHS’s long history of this practice and, at present, DPHHS is actively opposing legislation that would require it to provide the procedural protections that DRM alleges DPHHS is denying to the GBMI individuals in its custody. 24. By transferring GBMI individuals to the State Prison, the DPHHS Defendants are subjecting those individuals to conditions that pose an atypical and significant hardship because the State Prison does not provide proper care to individuals suffering from serious mental illness and subjects such individuals to conditions that exacerbate their mental illness. 25. The State Hospital has at least seven full-time psychiatrists available at all times for a population of approximately 209 patients, resulting in a psychiatrist-patient ratio of approximately 1 to 28. Every GBMI patient is
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assigned a treatment team, including a psychiatrist or advance practice psychiatric nurse, a social worker and a nurse, and in some cases, a treatment specialist and a recreation therapist. At the State Prison by contrast, there is only one psychiatrist who serves approximately 275 prisoners on his caseload.
26. In addition, the following practices at the State Prison impose an atypical and significant hardship on prisoners sentenced GBMI:
a. placing prisoners with serious mental illness in various forms of solitary confinement for 22 to 24 hours per day for months and years at a time;
b. placing prisoners with serious mental illness on behavior management plans that involve solitary confinement and extreme restrictions of privileges;
c. having no standards for determining whether placing a prisoner with serious mental illness in solitary confinement or on a behavior management plan will be harmful to the prisoner’s mental health;
d. engaging in a pattern of refusing to properly diagnose prisoners as suffering from serious mental illness;
e. engaging in a pattern of refusing to provide prisoners with medications for serious mental illness;
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f. failing to have a system in place to review and evaluate the diagnosing and prescribing practices of its mental health staff;
g. failing to have a system to classify prisoners according to their mental health needs;
h. failing to adequately consider prisoners’ serious mental illnesses when making decisions about prisoners’ housing and custody levels; and
i. having no system in place for auditing, evaluating or ensuring the effectiveness of its mental health care program in treating prisoners with serious mental illness.
27. Three of the four prisoners identified by DRM as having been transferred to the State Prison without procedural due process were subsequently placed in solitary confinement and on behavior management plans that are dangerous to their mental health.
28. DRM seeks a declaration that the practices of the DPHHS Defendants deny GBMI individuals procedural due process in violation of the Fifth and Fourteenth Amendments to the United State Constitution and an injunction requiring the DPHHS Defendants to provide all GBMI individuals the procedural protections necessary to protect their interests.
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PRAYER FOR RELIEF WHEREFORE, plaintiff Disability Rights Montana, Inc. prays for an order and judgment in which this Court: A. Exercises continuing jurisdiction over this action; B. Issues declaratory judgment that the DPHHS Defendants’ acts violate the prisoners’ rights to procedural due process protected by the U.S. Constitution and that these acts and omissions continue to cause an ongoing risk of the violation of those rights; C. Issues injunctive relief to stop the constitutional violations described above and requires the DPHHS Defendants to provide individuals sentenced Guilty But Mentally Ill with all of the procedural protections required by the United States Constitution. D. Awards reasonable attorneys’ fees, litigation expenses, and costs pursuant to 42 U.S.C. § 1988; and E. Orders all other relief the Court deems appropriate.
Respectfully submitted this 8th day of May, 2015. s/Jeffrey A. Simmons Jeffrey A. Simmons (Pro Hac Vice) Foley & Lardner LLP 150 East Gilman Street Madison, WI 53703-1482 Telephone: (608) 258-4267 Email: jsimmons@foley.com 12

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s/Jon E. Ellingson Jon E. Ellingson James Park Taylor ACLU of Montana 241 E. Alder Missoula, MT 59807 Telephone: (406) 549-6159 Email: jpt42@hotmail.com
jonelling@gmail.com Anna Conley Attorney At Law P.O. Box 9101 Missoula, MT 59807 Telephone: (406) 830-0367 Email: anna@annaconley.com
Kyle A. Gray Adrian A. Miller Holland & Hart LLP 401 N. 31st Street, Suite 1500 Billings, MT 59101-1277 Telephone: (406) 252-2166 Email: kgray@hollandandhart.com
aamiller@hollandhart.com
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James Park Taylor Jon E. Ellingson ACLU of Montana 241 E. Alder P.O. Box 9138 Missoula, MT 59807 Telephone: (406) 549-6159 Email: jpt42@hotmail.com
jone@aclumontana.org

Kyle A. Gray Adrian A. Miller Holland & Hart LLP 401 N. 31st Street Suite 1500 Billings, MT 59101-1277 Telephone: (406) 252-2166 Email: kgray@hollandandhart.com
aamiller@hollandhart.com

Jeffrey A. Simmons Foley & Lardner LLP 150 East Gilman Street Madison, WI 53703-1482 Telephone: (608) 258-4267 Email: jsimmons@foley.com

Anna Conley Attorney At Law P.O. Box 9101 Missoula, MT 59807 Telephone: (406) 830-0367 Email: anna@annaconley.com

Attorneys for Plaintiff Disability Rights Montana, Inc.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BUTTE DIVISION

DISABILITY RIGHTS MONTANA, )

INC., on behalf of all prisoners with

)

serious mental illness confined to the )

Montana State Prison,

)

)

Plaintiff,

)

)

vs.

)

)

MIKE BATISTA, in his official capacity )

as Director of the Montana Department )

of Corrections; LEROY KIRKEGARD, )

in his official capacity as warden of

)

Montana State Prison,

)

)

Defendants.

)

Civil No. CV-14-25-BU-SEH
SECOND AMENDED COMPLAINT
AGAINST DEFENDANTS MIKE BATISTA AND LEROY KIRKEGARD

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For its Second Amended Complaint in this action, plaintiff Disability Rights Montana, Inc. (“DRM”) alleges as follows:
1. This is an action brought on behalf of all prisoners with serious mental illness who are confined to the Montana State Prison (“State Prison” or “Prison”). DRM brings claims on behalf of these prisoners pursuant to 42 U.S.C. § 1983 for ongoing violations of their constitutional right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution.
THE PARTIES 2. Plaintiff DRM is a not-for-profit Montana corporation and the authorized protection and advocacy agency for Montana pursuant to the federal Protection and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. § 10801 et seq. Among other things, DRM is authorized by federal law to pursue legal remedies to ensure that individuals with serious mental illness in state institutions are protected from abuse and neglect. Because prisoners with serious mental illness are DRM’s constituents, DRM has associational standing to bring claims on behalf of prisoners with serious mental illness as alleged in this lawsuit. 3. Individuals who have received or are receiving mental health services, or their family members, are substantially involved in DRM’s governance, including serving on DRM’s board of directors. DRM’s board of directors is comprised of ten members, two of whom either have received or are receiving
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mental health services, and three of whom have family members who have received or are receiving mental health services. DRM’s advisory council has eight members, seven of whom either have received or are receiving mental health services and one of whom has a family member who has received or is receiving mental health services.
4. Defendant Mike Batista is Director of the Montana Department of Corrections (“DOC”) and is sued in his official capacity. At all times relevant to this Second Amended Complaint, Director Batista was acting within the scope of his employment and under color of state law in his capacity as Director of DOC. Director Batista is directly responsible for the administration of the Prison and has authority to direct the housing, discipline, treatment and care of prisoners with serious mental illness at the Prison. In his official capacity, Director Batista is responsible for administering the policies and practices at issue with respect to the claims against him and has the authority to implement the relief sought in this action.
5. Defendant Leroy Kirkegard is Warden of the State Prison and is sued in his official capacity. At all times relevant to this Second Amended Complaint Warden Kirkegard was acting within the scope of his employment and under color of state law in his capacity as Warden. Warden Kirkegard is directly responsible for the administration of the Prison and has authority to direct the housing,
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discipline, treatment and care of prisoners with serious mental illness at the Prison. In his official capacity, Warden Kirkegard is responsible for administering the policies and practices at issue with respect to the claims against him and has the authority to implement the relief sought in this action.
6. Director Batista and Warden Kirkegard are referred to collectively as the “DOC Defendants.”
JURISDICTION AND VENUE 7. This court has jurisdiction over DRM’s claims pursuant to 28 U.S.C. §§ 1331 and 1343. 8. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b), and is proper in this Division pursuant to Local Rule 3.2(b), inter alia, because the unlawful transfers from the State Hospital that are at issue in DRM’s claims against Richard Opper and John Glueckert, which were part of this action as originally filed, occurred in Deer Lodge County. 9. This Court has authority pursuant to 42 U.S.C. § 1983 to order injunctive and declaratory relief.
COUNT I Cruel and Usual Punishment in Violation of the
Eighth Amendment to the U.S. Constitution 10. DRM incorporates the allegations of paragraphs 1 - 9 as if fully restated here.
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11. DRM alleges that the DOC Defendants have subjected, and are continuing to subject, prisoners with serious mental illness to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.
12. The DOC defines a “serious mental illness” as “a clinical disorder of thought, mood or anxiety included under Axis I of the DSM; e.g., schizophrenia, major depression, bi-polar disorder, PTSD, or panic disorder and inmates who were previously diagnosed with such mental illness unless there is certification in the record that the diagnosis has been changed or altered as a result of a subsequent mental health evaluation by a licensed mental health professional. It does not include personality disorders; i.e., borderline, antisocial, or paranoid personality disorders.” The DOC uses this definition for purposes of administering behavior management plans that it imposes as punishment for prisoners.
13. The DOC does not have a consistent method for categorizing prisoners with mental illness. For example, the State Prison’s Operational Procedure MSP 3.5.3 regarding Mental Health Cases in Locked Housing Status, addresses only “Severe Mental Health Problems,” which it defines broadly as “any organic, mental or emotional impairment, which has a substantial adverse effect on an inmate’s cognitive or volitional function.”
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14. A more appropriate definition of “serious mental illness,” that is accepted by mental health professionals and would better identify those prisoners who are adversely affected by the actions of the DOC Defendants alleged here, is as follows:
A. A current diagnosis or significant history of any of the following types of DSM-5 diagnoses, even if there are no current symptoms: 1. Schizophrenia 2. Delusional Disorder 3. Schizophreniform Disorder 4. Schizoaffective Disorder 5. Brief Psychotic Disorder 6. Substance/Medication-Induced Psychotic Disorder 7. Major Depressive Disorders 8. Bi-polar Disorder
B. Other DSM-5 Disorders that are commonly characterized by breaks with reality, or perceptions of reality, that lead the individual to experience significant functional impairment involving acts of self-harm or other behaviors that have a seriously adverse effect on life or on mental or physical health.
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C. A current diagnosis or history of an intellectual disability (including mental retardation), a dementia, traumatic brain injury or other cognitive disorder that results in a significant functional impairment involving acts of self-harm or other behaviors that have a seriously adverse effect on life or on mental or physical health.
D. A current diagnosis or history of a severe personality disorder that is manifested by episodes of psychosis or depression, and results in significant functional impairment involving acts of self-harm or other behaviors that have a seriously adverse effect on life or on mental or physical health.
15. Regardless, under any legitimate definition of “serious mental illness” the DOC Defendants are subjecting prisoners with serious mental illness to cruel and unusual punishment by engaging in at least the following practices:
a. placing prisoners with serious mental illness in various forms of solitary confinement for 22 to 24 hours per day for months and years at a time;
b. placing prisoners with serious mental illness on behavior management plans that involve solitary confinement and extreme restrictions of privileges;
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c. having no standards for determining whether placing a prisoner with serious mental illness in solitary confinement or on a behavior management plan will be harmful to the prisoner’s mental health;
d. engaging in a pattern of refusing to properly diagnose prisoners as suffering from serious mental illness;
e. engaging in a pattern of refusing to provide prisoners with medications for serious mental illness;
f. failing to have a system in place to review and evaluate the diagnosing and prescribing practices of its mental health staff;
g. failing to have a system to classify prisoners according to their mental health needs;
h. failing to adequately consider prisoners’ serious mental illnesses when making decisions about prisoners’ housing and custody levels; and
i. having no system in place for auditing, evaluating or ensuring the effectiveness of its mental health care program in treating prisoners with serious mental illness.
16. In 2011, the Prison Warden estimated that approximately one-fifth the Prison’s approximately 1,500 prisoners suffer from mental illness. The Prison’s
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staff psychiatrist has approximately 275 prisoners on his or her medication management caseload.
17. It is well known in the correctional community and in the mental health treatment community that subjecting prisoners to extended periods of solitary confinement is detrimental to their mental health.
18. For example, National Commission on Correctional Health Care Standards for Mental Health Services in Correctional Facilities, MH-E-07, states: “Inmates who are seriously mentally ill should not be confined under conditions of extreme isolation.”
19. Society of Correctional Physicians’ Position Statement on Restricted Housing of Mentally Ill Inmates states: “[P]rolonged segregation of inmates with serious mental illness, with rare exceptions, violates basic tenets of mental health treatment. Inmates who are seriously mentally ill should be either excluded from prolonged segregation status (i.e., beyond 4 weeks) or the conditions of their confinement should be modified in a manner that allows for adequate out-of-cell structured therapeutic activities and adequate time in an appropriately designed outdoor exercise area.”
20. In March 2015, United States Supreme Court Justice Anthony Kennedy, in testimony before the House Appropriation Subcommittee on Financial
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Services and General Government, said “Solitary confinement literally drives men mad.”
21. The DOC Defendants are aware of the fact that solitary confinement is detrimental to the health of prisoners with serious mental illness. In particular, the DOC Defendants are aware of the National Commission on Correctional Health Care Standards for Mental Health Services in Correctional Facilities, because the DOC Defendants have sought certification from that organization.
22. The State Prison uses at least four general forms of solitary confinement to punish prisoners with mental illness: administrative segregation, restricted administrative segregation, disciplinary detention, and behavior modification plans. All of the forms of solitary confinement involve subjecting the prisoner to being locked in his cell alone for 22 to 24 hours a day, seven days a week. The DOC Defendants refer to these forms of solitary confinement as “Locked Housing.”
23. In the least restrictive form of administrative segregation, prisoners are isolated in their cells at least 22 hours a day, five days a week, and 24 hours a day, two days a week. The out-of-cell time for prisoners in the least restrictive forms of administrative segregation consists of one hour per day alone in a dayroom adjoining his cell, and one hour per day in a small outdoor caged area by himself. If there is inclement weather, the one hour of outdoor recreation may be
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cancelled. If a prisoner is not feeling well or does not wake up during the designated one-hour outdoor recreation period, which is often the case for prisoners with serious mental illness, the prisoner may not receive his one hour of outdoor time.
24. Prisoners with serious mental illness who are placed in solitary confinement receive no therapy for their mental illness. The primary contact with mental health staff while they are in solitary confinement consists of weekly rounds by mental health technicians. Each visit during weekly rounds typically lasts no more than a few minutes and is conducted at the prisoner’s cell door, where other prisoners and corrections officers can hear what is said. As a result, prisoners with serious mental illness are often reluctant to share their mental health concerns during those rounds. The futility of this process causes prisoners with serious mental illness to suffer additional stress.
25. In more restrictive forms of administrative segregation and in restricted administrative segregation, prisoners are locked in their cells at least 23 hours per day, five days a week, and 24 hours a day, two days a week. Prisoners in these forms of solitary confinement receive one hour of outdoor recreation time five days a week. Again, if the prisoner is not feeling well or asleep, or if there is inclement weather, the prison may not receive the one hour of outdoor recreation time.
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26. Disciplinary detention is among the most extreme forms of solitary confinement imposed at the Prison. Disciplinary detention is referred to by prisoners and Prison staff as “The Hole.” The Hole is total isolation. Prisoners sent to The Hole are subjected to 24-hour isolation in their cell. Some cells used for The Hole have blacked-out windows, resulting in a total absence of natural light. Prisoners placed in The Hole cannot make phone calls or have visitors. They cannot participate in religious services or rehabilitative treatment programs. They receive no mental health therapy. They receive no indoor or outdoor recreation time whatsoever. The only out-of-cell time given to prisoners in The Hole consists of three, ten-minute showers per week.
27. Behavior management plans (“BMPs”) are a form of punishment that involves a combination of solitary confinement and extreme reduction in privileges. Under a BMP, a prisoner is kept in 24-hour isolation. A prisoner on a BMP starts out by having all of his prison clothing removed and being given just a mattress, blanket, and a suicide smock. At the start of a BMP all meals consist of a tasteless loaf of food (“nutraloaf”) delivered on a paper towel, and the prisoner is not allowed any running water in his cell. A guard must flush the toilet for the prisoner, and the prisoner must ask for water to wash his hands. In extreme forms of BMPs, prisoners must go to the bathroom through a grate on the floor.
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28. Staff at the Prison has placed individual prisoners with serious mental illness on BMPs numerous times, without modifying the BMP to account for the prisoner’s mental illness or the failure of previous BMPs to alter the prisoner’s behavior.
29. Although the Prison’s formal policies call for Prison mental health staff to certify that “[t]he inmate’s present behavior is not the direct result of an Axis I serious mental disorder” before placing a prisoner on a BMP, the DOC and the Prison have no standards to guide mental health staff in making that determination and do not require mental health staff to document the factual bases for their decisions. Under the Prison’s policies, Prison mental health staff certify prisoners in advance to be subjected to BMPs at any time during the following six months.
30. Rather than protect prisoners with serious mental illness from the damaging effects of BMPs, mental health staff sometimes encourage the use of BMPs for such prisoners. In one instance, a Prison mental health staff person wrote to prison staff that two individuals sentenced Guilty But Mentally Ill would be “good candidates” for BMPs at the Prison.
31. The Prison regularly places prisoners with serious mental illness in all of the forms of solitary confinement described above for weeks and months at a
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time. Some prisoners with serious mental illness have spent years in various forms of solitary confinement during their time at the Prison.
32. Prisoners with serious mental illness at the Prison receive little, if any, meaningful interaction with mental health clinicians. The Prison offers group therapy with mental health staff to only a very small percentage of the prisoners with serious mental illness, none of whom are in solitary confinement. An even smaller percentage of prisoners with serious mental illness receive individual therapy at the Prison.
33. For the vast majority of prisoners with serious mental illness, their interaction with mental health staff at the Prison consists of non-confidential weekly cell checks by mental health technicians at the cell door. Prisoners’ written requests for additional mental health care are regularly denied. The futility of requesting additional mental health care exacerbates prisoners’ mental illnesses.
34. The DOC Defendants fail to respond appropriately to threats of suicide by prisoners with serious mental illness. The Prison’s most common response to a prisoner expressing thoughts of suicide is to place a prisoner on a BMP. This response causes prisoners to be reluctant to admit to thoughts of suicide and, as a result, increases the risk of suicide.
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Representative Examples of Prisoners With Serious Mental Illness Who Have Experienced Cruel and Unusual Punishment 35. Below are examples of the experiences of nine prisoners who suffered from serious mental illness and were subjected to solitary confinement and improper mental health care at the State Prison. The examples demonstrate an ongoing pattern of behavior at the Prison that indicates that numerous prisoners with serious mental illness – not just the nine identified below – have been subjected to cruel and unusual punishment and that all prisoners with serious mental illness at the Prison are at significant risk for suffering cruel and unusual punishment in the future. James Larson 36. James Larson was sentenced Guilty But Mentally Ill (“GBMI”) in 2006. Among the reasons the Judge gave for the sentence was that “[t]he Defendant has substance and mental health issues and [the Montana State Hospital] is the best facility to address those conditions.” The Montana Department of Public Health and Social Services placed Mr. Larson at the State Hospital, where he was diagnosed as schizophrenic and put on antipsychotic medications. 37. Mr. Larson arrived at the Prison in 2008. From 2008 to 2012, Prison mental health staff repeatedly acknowledged his diagnosis of schizophrenia and he was prescribed multiple antipsychotic medications. Despite that diagnosis, Prison staff repeatedly placed Mr. Larson in solitary confinement and subjected him to
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BMPs for threatening self-harm. Mr. Larson told Prison mental health staff that he wanted to cry when he was in solitary confinement and that he did not “do hole time well.” He said that in solitary confinement “all I do is suffer unmitigated hell in these cells all the time.”
38. Despite his GBMI sentence and his previous diagnoses of suffering from serious mental illness, in 2012 Prison mental health staff decided that Mr. Larson was faking his mental illness and decided to taper off his antipsychotic medications.
39. Mr. Larson is currently confined to the Prison’s Locked Housing unit. 40. The DOC Defendants are aware of the cruel and unusual punishment Mr. Larson has been subjected to because he exhausted his administrative remedies regarding inadequate mental health care at the Prison through an appeal to the DOC Director. James Patrick 41. In 2002, a district court judge found James Patrick Guilty But Mentally Ill. In 2007, DPHHS transferred Mr. Patrick to the State Prison. Since arriving at the Prison, Mr. Patrick has spent over three years in solitary confinement for “bizarre” and “disruptive” behavior. For two months, Mr. Patrick was placed in the Prison’s Mental Health Treatment Unit (“MHTU”) where, despite his previous diagnoses of serious mental illness, Prison mental health staff
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concluded that his problems were behavioral and stemmed from immaturity and other unknown sources. As a result, Prison staff transferred Mr. Patrick back to solitary confinement.
42. Prison staff have continuously refused to consider Mr. Patrick’s mental illness when addressing his behavior. Prison staff have placed Mr. Patrick on BMPs approximately 25 times for acts including actual and threatened selfharm, smearing feces in his cell, banging his head until it bled on his cell door while asking for real food instead of nutraloaf, crying and saying people on the floor were talking to him, attempting suicide, cutting himself with a broken deodorant stick, and hitting his cell door and screaming “help me help me” for 20 minutes. Mr. Patrick has spent weeks in 24-hour isolation in disciplinary detention for similar behaviors.
43. In 2012, Prison mental health staff discontinued Mr. Patrick’s antipsychotic medications, which he had taken for many years, after he temporarily refused to take them. Mr. Patrick’s subsequent requests for medications were denied. While unmedicated, Mr. Patrick was found guilty of multiple rule violations for bizarre behavior and self-harm and was subjected to BMPs, disciplinary detention and administrative segregation.
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Shaun Morrison 44. Shaun Morrison has received diagnoses of serious mental illness throughout his life, including major depressive disorder. He also has a long history of extreme self-harm. He has cut himself on numerous occasions, resulting in hospitalizations and near loss of life due to blood loss. In addition to cutting himself, he has also bitten through his own skin, ripped stitches, and reopened wounds with foreign objects. 45. In 2006, Mr. Morrison was sentenced Guilty But Mentally Ill. That same year, DPHHS transferred him to the State Prison. 46. While at the Prison, Mr. Morrison spent two months at the MHTU. During that time, he filled out a “treatment planning worksheet,” in which he listed the following ways Prison mental health staff could help him: “Be there to talk to me when I’m having problems. Groups with homework. Give me stuff to do so I can keep myself and my mind busy.” 47. Instead, Prison staff transferred him to solitary confinement because the MHTU could not manage his self-harm behavior. Despite his GBMI sentence and previous diagnoses of mental illness, Prison staff said that Mr. Morrison had “no mental health history that would preclude an ad seg placement.”
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48. At one point, Prison mental health staff discontinued Mr. Morrison’s medications, based on the staff’s conclusion that “he appears to do as well/poorly, whether on or off Rx.”
49. The Prison’s most common response to Mr. Morrison’s acts of selfharm has been to place him on a BMP. He has spent significant periods of time on BMPs in 24-hour isolation, often in a padded cell. The longer he spent in solitary confinement and on BMPs, the worse his self-harm episodes became.
50. In July 2011, Mr. Morrison stated to Prison mental health staff that he had “been in locked housing for way too long” and was “wound up,” “stressed,” and worried about doing “something stupid” that would get him into trouble.
51. Upon being moved out of solitary confinement, in August 2011, Mr. Morrison murdered another prisoner. Mr. Morrison was found guilty of homicide and sentenced to the DOC for life without the possibility of parole.
Cory Weis 52. Cory Weis was diagnosed with bipolar disorder and schizophrenia and received various medications for those illnesses before arriving at the Prison. When the Judge sentenced him to the Prison, she recognized Mr. Weis’s mental health issues and “highly recommend[ed] that he be considered for placement in the mental health block at the Prison because that seems to me that that’s going to be the best place for [him].”
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53. Despite the Judge’s express recommendation, Mr. Weis was never placed in the MHTU at the Prison. Prison records suggest that Mr. Weis spent more than half of his time at the Prison in solitary confinement. The Prison’s mental health staff stated that Mr. Weis had “no known history of psychiatric problems or symptoms that would preclude Administrative Segregation for inappropriate behavior.”
54. Within weeks of arriving at the Prison, Mr. Weis told staff that he was hearing voices telling him to do things to himself and he threatened to kill himself. Shortly thereafter, Mr. Weis was disciplined for smearing feces on himself, but a Prison therapist concluded that the conduct was not the result of a serious mental illness. A little more than a month later, Mr. Weis was disciplined for banging his head against the wall and spreading feces on himself. In response, Prison mental health staff authorized placing Mr. Weis in solitary confinement and authorized the use of a BMP. During his seven months at the Prison, Mr. Weis met with the Prison psychiatrist just once, more than four months after his arrival.
55. Seven months after arriving at the Prison, Mr. Weis was found dead in his cell as a result of hanging.
Marty Hayworth 56. Marty Hayworth was diagnosed with multiple serious mental illnesses before arriving at the Prison, including schizophrenia. Mr. Hayworth hears the
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voice of a dog named Gene who directs him to harm himself. Mr. Hayworth has repeatedly attempted to take out his own eyes.
57. Despite his previous diagnoses of serious mental illness, Prison staff have refused to acknowledge that Mr. Hayworth is mentally ill. Prison mental health staff has described Mr. Hayworth’s attempts to take his own eyes out and swallow objects as “manipulative” and “characterological,” rather than symptoms of mental illness.
58. In 2012, the Prison psychiatrist diagnosed Mr. Hayworth as malingering (i.e. faking) mental illness. The psychiatrist also discontinued all of Mr. Hayworth’s medications without meeting with him or investigating possible reasons for noncompliance. Mr. Hayworth’s stated reason for refusing to take his medications was “the outerspace people and Gods and I don’t need any mental health medication.” Subsequently, Mr. Hayworth received approximately 40 disciplinary violations, which Prison custody staff attributed to “medication noncompliance.”
59. Prison mental health staff has repeatedly approved standard disciplinary measures for Mr. Hayworth’s behavior for many years. Since 2005, Mr. Hayworth has spent years in solitary confinement at the Prison. He reports feeling like a “young kid locked up in a closet” when he is in solitary. He spreads feces in his cell to “keep bad spirits away,” and engages in self-harm. He has been
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repeatedly disciplined and restrained for self-harm and behavior such as smearing feces, drinking Ajax, and swallowing glass.
60. In April 2015, Mr. Hayworth contacted DRM to tell them that he believed Prison staff were constructing a cross on which to crucify him.
Paul Parker 61. Paul Parker has long-standing diagnoses of mental illness, including bi-polar disorder, post-traumatic stress disorder, and major depression. For many years, Mr. Parker has taken lithium for his bi-polar disorder, as well as antidepressants and antipsychotic medications. 62. Prison staff have repeatedly ignored Mr. Parker’s mental illnesses when addressing his behavior and making his housing assignments. Mr. Parker has spent more than eight years in solitary confinement. In solitary confinement, Prison mental health staff has observed Mr. Parker decompensating. After years in solitary confinement, Mr. Parker has expressed concern regarding his ability to reintegrate into the general prison population. 63. Prison staff have repeatedly placed Mr. Parker in 24-hour isolation on BMPs for threatening to slice his throat, threatening to stab himself with pens, biting his arm and wrist and smearing the blood on the floor “to make the situation look worse than it actually was,” smearing blood on his cell, and writing a message in blood about wanting to die.
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64. Prison mental health staff refuse to acknowledge the existence of Mr. Parker’s mental illness. In 2012, mental health staff concluded that Mr. Parker was biting and picking at his arm “for the purpose of manipulating staff and receiving mental health services at his leisure.” They also concluded that his act of smearing blood on walls was “malingering his depression to gain attention.”
65. Prison staff have been deliberately indifferent to the harmful effect of solitary confinement on Mr. Parker. In a 2011 document, Prison staff wrote that they were placing Mr. Parker in solitary confinement with the goals of: “learn to deal with depression,” “learn to refrain from this type of behavior by working on his ‘people skills’ and thinking before he reacts,” and finding ways to “occupy his mind.”
66. After Mr. Parker met with the Prison psychiatrist, the psychiatrist wrote: “I think most of his complaints were involving being in locked housing but I explained to him that there wasn’t anything I could do about that.”
67. In 2012, the Prison psychiatrist concluded that Mr. Parker did not have bi-polar disorder, despite previous diagnoses of that illness. The psychiatrist then discontinued Mr. Parker’s lithium prescription and refused to restart it.
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Walter Taylor 68. Walter Taylor is 70 years old and has received several mental illness diagnoses during his life, including schizophrenia, bi-polar disorder, major depression and personality disorders. 69. Mr. Taylor’s mental illness manifests itself in, among other things, numerous acts of extreme self-mutilation. Over many years, Mr. Taylor has swallowed safety pins, razor blades, paper clips, needles, spoons, nails, and tacks. He has also inserted objects into his penis, including paper clips, foil and copper wires. Mr. Taylor has had over 30 stomach surgeries for swallowing foreign objects. 70. Prison staff views Mr. Taylor’s acts of self-harm as “manipulative” and “not the result of serious mental illness.” Prison staff have housed Mr. Taylor in solitary confinement for several years, and have placed him on BMPs numerous times in response to his acts of self-harm. 71. From approximately 2005 to 2012, Mr. Taylor was prescribed a combination of medications that worked well for him, including Prozac, Lithium, Seroquel and Propranolol. During this time he engaged in few self-harm behaviors and worked as a janitor in the prison.
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72. In approximately 2012, however, the Prison psychiatrist decided that Mr. Taylor was not suffering from a serious mental illness and discontinued all of Mr. Taylor’s medications.
73. Without his medications, Mr. Taylor began engaging in self-harm, including swallowing paperclips in 2013.
74. In August 2013, Mr. Taylor was denied parole. In the report to the parole board, his case manager stated, “I am unable to support a release at this time without an extensive mental health component and an updated positive psychological report.”
Cleveland Boyer 75. Cleveland Boyer was 23-years old when he was sent to the Prison in February 2013. Prior to arriving at the Prison, he had spent two years at Yellowstone County Detention Facility (“YCDF”), where medical and mental health staff noted that he suffered from anxiety and depression and prescribed him antidepressants. 76. In June 2011, Mr. Boyer’s mother died in a house fire. A few days later, he attempted to commit suicide by slashing his neck twice with a razor at YCDF. 77. Upon arriving at the Prison, Mr. Boyer informed medical and mental health staff of his suicide attempt, that he suffered from mental illness, that he
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believed he had bi-polar disorder and schizophrenia, and that he had been prescribed several medications for his mental illness. Nevertheless, Prison mental health staff determined that he had “no significant” mental health needs.
78. The Prison psychiatrist dismissed the seriousness of Mr. Boyer’s suicide attempt, writing: “Boyer reports that he attempted suicide in 2011 by cutting his throat when his mother dies [sic]. However, I actually couldn’t even see a scar so it must not have been very serious.”
79. Two months after seeing the psychiatrist and just three months after arriving at the Prison, Prison staff placed Mr. Boyer in solitary confinement for 90 days as a result of rule violations. Mr. Boyer was released from solitary confinement on August 14, 2013. Nine days later corrections officers found him dead in his cell. Although no cause of death has been announced, medical staff who attempted to resuscitate Mr. Boyer were concerned that he had overdosed on drugs.
Matthew Brandemihl 80. Matthew Brandemihl was 32 years old when he was sent to the Prison from Gallatin County jail on or about May 12, 2014. Approximately one week before he was scheduled for transfer to the Prison, Mr. Brandemihl attempted suicide in his cell by biting a hole in his wrist approximately two inches in diameter. Questioned by a police officer at the hospital later that day, Mr.
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Brandemihl stated that he believed he was the son of God and has been alive for one thousand years, and that his brother was the devil and becomes a spirit and possesses other people’s bodies in order to torment him, and tells him to commit acts of destruction.
81. Mr. Brandemihl started taking the antidepressant Citalopram to treat an apparent anxiety disorder approximately three days before this suicide attempt.
82. According to Prison records, during his clinical intake at the Prison, Mr. Brandemihl complained that “a device has been drilled into, or implanted into my head” and appeared “sad” and “depressed.” The nurse who evaluated him, however, did not recommend a psychiatric evaluation or treatment, psychological testing, or placement in a mental health group.
83. On June 20, 2014, Mr. Brandemihl became agitated during a trip to the infirmary and refused to leave when asked. When confronted by corrections officers, Mr. Brandemihl declared that his name was “Jesus” and accused Prison staff of trying to poison his food and water. The prison investigator recommended discipline for Mr. Brandemihl instead of mental health treatment, concluding that his behavior was “not symptomatic of a mental illness that would prevent knowledge of his actions.” Mr. Brandemihl was sentenced to 11 days in Locked Housing.
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84. In 2014, the Prison psychiatrist concluded that Mr. Brandemihl’s behavior and psychotic beliefs were evidence of “just frank malingering and being uncooperative” and the side effects of past substance abuse. He made no recommendations for mental health treatment or medication for Mr. Brandemihl.
85. In July 2014, Mr. Brandemihl attempted suicide again by trying to chew through his arm and wrist. In response, Prison staff placed Mr. Brandemihl in Locked Housing. In an e-mail dated July 8, 2014, Prison staff wrote, “the mental health department feels [Mr. Brandemihl] knowingly, willingly, and purposely engaged in self-harm behavior and should be held accountable for his actions.”
86. Later that month, Mr. Brandemihl again tried to commit suicide by chewing through his arm and wrist and taking approximately 50 multivitamin tablets. On that same day, corrections officers observed Mr. Brandemihl drinking out of the toilet in his cell after he had fallen and hit his head on it. Rather than prescribe mental health treatment for Mr. Brandemihl, Prison officials placed him on a BMP for “hindering” prison staff and once again sent him to a Locked Housing unit. Prison records show that the “hindering” charge was based on the fact that attending to Mr. Brandemihl’s suicide attempt “caused the day to day operations of the unit to fall behind schedule.”
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87. Medical records indicate that Mr. Brandemihl informed the medical professional who treated him at Deer Lodge Hospital following this incident that he bit his wrists and tried to suck his own blood “out of fear of metals in his blood.” These records also show that Deer Lodge Hospital recommended that Mr. Brandemihl receive “psychiatric follow up at the prison.”
88. At his subsequent disciplinary hearing, Mr. Brandemihl was found guilty of infractions for engaging in self-harm and for obstructing and hindering prison staff. He was sentenced to 11 days in Locked Housing.
89. On August 4, 2014, a doctor treating Mr. Brandemihl observed that he suffered from “apparent persecutory delusions” and requested that his mental health be assessed “ASAP.” According to prison records, the only action taken was to send a “mental health technician” to perform a wellness check on Mr. Brandemihl.
90. On September 23, 2014, Mr. Brandemihl was found sleeping in his cell near a plastic bag filled with blood. He refused to be handcuffed when directed by the corrections officers. Instead, he began flushing objects down the toilet in his cell. As a result, he was again transferred to Locked Housing and placed in solitary confinement.
91. Shortly thereafter, Mr. Brandemihl was found dead in his Locked Housing cell. Although the official cause of death has not been released, prison
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records indicate his body was found on the floor “laying in a pool of blood under his blankets.” When prison staff found Mr. Brandemihl’s body, they noted the blood on the floor had dried, his skin was cold, and rigor mortis had already begun to set in, all of which indicated he had been dead for several hours.
92. The Defendants are well-aware that the Prison’s treatment and care of prisoners with serious mental illness does not satisfy constitutional requirements. In its 2003 decision in Walker v. State, 2003 MT 134, 316 Mont. 103, 68 P.3d 872 (Mont. 2003), the Montana Supreme Court made it very clear that the Prison has a constitutional obligation to provide prisoners with appropriate mental health treatment and to eliminate disciplinary practices that exacerbate prisoners’ mental illnesses. The Court concluded that the Prison’s “behavior management plans” and living conditions constitute cruel and unusual punishment when they exacerbate the prisoner’s mental health condition.
93. In 2009, the DOC faced another lawsuit, Katka v. State, No. BDV 2009-1163 (1st Jud. Dist. Ct., Lewis and Clark Co.) challenging the Prison’s treatment and discipline practices for juveniles with mental illness. The DOC resolved Katka by entering into a 2012 settlement agreement requiring the Prison to implement changes regarding its housing and treatment of prisoners with serious mental illness and treatment of suicidal prisoners. Throughout discovery in that
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case, Prison officials heard from mental health experts addressing the deficiencies in the Prison’s use of solitary confinement and inadequate mental health treatment.
94. In addition, Prisoners with serious mental illness regularly request and grieve the level of mental health care they are provided, including the negative impact of isolation, mental health staff discontinuing their needed medications and mental health staff ignoring previous diagnoses. In 2012 alone, a Prison staff member publicly stated that mental health staff answered over 2,000 mental health requests. Several prisoners have appealed the inadequacy of the mental health treatment they receive to the Prison Warden and ultimately to the DOC Director.
95. In addition, DRM has repeatedly informed Prison officials of the serious deficiencies in the Prison’s treatment of prisoners with serious mental illness.
96. On February 26, 2014, DRM sent Director Batista a letter describing many of the facts alleged in this Second Amended Complaint. To DRM’s knowledge, to date, the DOC Defendants have not made any modifications in their treatment of prisoners with serious mental illness.
97. Given their knowledge of these practices, and their knowledge of the serious harm that can be caused by these practices, and their refusal to change these practices, the DOC Defendants have been deliberately indifferent to the
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serious medical needs of prisoners with serious mental illness at the Montana State Prison.
PRAYER FOR RELIEF WHEREFORE, plaintiff Disability Rights Montana, Inc. prays for an order and judgment in which this Court: A. Exercises continuing jurisdiction over this action; B. Issues declaratory judgment that the DOC Defendants’ acts violate the Eighth Amendment to the U.S. Constitution, and that these acts and omissions continue to cause an ongoing risk of the violation of those rights; C. Issues injunctive relief to stop the constitutional violations described above, including injunctive relief that:
1. Requires the DOC Defendants to take immediate steps to ensure that individuals with serious mental illness incarcerated at the Montana State Prison receive constitutionally adequate mental health care;
2. Enjoins the DOC Defendants from placing prisoners with serious mental illness in solitary confinement;
D. Retains jurisdiction of this case until the DOC Defendants have fully complied with the orders of this Court, and there is a reasonable assurance that the DOC Defendants will continue to comply in the future absent continuing jurisdiction;
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E. Awards reasonable attorneys’ fees, litigation expenses, and costs
pursuant to 42 U.S.C. § 1988 and 42 U.S.C. § 12205; and
F. Orders all other relief the Court deems appropriate.
Respectfully submitted this 8th day of May, 2015.
s/Jeffrey A. Simmons Jeffrey A. Simmons (Pro Hac Vice) Foley & Lardner LLP 150 East Gilman Street Madison, WI 53703-1482 Telephone: (608) 258-4267 Email: jsimmons@foley.com
s/Jon E. Ellingson Jon E. Ellingson James Park Taylor ACLU of Montana 241 E. Alder Missoula, MT 59807 Telephone: (406) 549-6159 Email: jpt42@hotmail.com
jonelling@gmail.com
Anna Conley Attorney At Law P.O. Box 9101 Missoula, MT 59807 Telephone: (406) 830-0367 Email: anna@annaconley.com
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Kyle A. Gray Adrian A. Miller Holland & Hart LLP 401 N. 31st Street, Suite 1500 Billings, MT 59101-1277 Telephone: (406) 252-2166 Email: kgray@hollandandhart.com
aamiller@hollandhart.com
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DISABILITY RIGHTS MONTANA, INC., on behalf of all prisoners with serious mental illness confined to the Montana State Prison,
Plaintiff-Appellant,
v.
MIKE BATISTA, in his official capacity as Director of the Montana Department of Corrections; LEROY KIRKEGARD, in his official capacity as warden of Montana State Prison,
Defendants-Appellees.

No. 15-35770 D.C. No.
2:15-cv-00022-SEH
OPINION

Appeal from the United States District Court for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted March 7, 2019 Seattle, Washington
Filed July 19, 2019

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Before: Ronald M. Gould and Richard A. Paez, Circuit Judges, and Janis Graham Jack,* District Judge.

Opinion by Judge Gould

SUMMARY**

Prisoner Civil Rights
The panel reversed the district court’s dismissal of a prisoner civil rights complaint, remanded for further proceedings, and reassigned the case to a different district court judge.
Plaintiff, Disability Rights Montana, alleged pursuant to 42 U.S.C. § 1983 that the Director of the Montana Department of Corrections and the Warden of the Montana State Prison violated the Eighth Amendment rights of “all prisoners with serious mental illness who are confined to the Montana State Prison.” The district court dismissed the complaint for failing to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
The panel held that the complaint, which described the horrific treatment of prisoners, was supported by factual allegations more than sufficient to “state a claim to relief that was plausible on its face” under Bell Atlantic Corp. v.

* The Honorable Janis Graham Jack, United States District Judge for the Southern District of Texas, sitting by designation.
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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Twombly, 550 U.S. 544, 570 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

The panel noted that the complaint alleged that prisoners with serious mental illness were denied diagnosis and treatment of their conditions, described a distressing pattern of placing mentally ill prisoners in solitary confinement for “weeks and months at a time” without significant mental health care, alleged the frequent, improper use of this punishment for behavior arising from mental illness, marshalled relevant quotations from national prison health organizations about the unacceptability of subjecting prisoners to extensive solitary confinement, and alleged that the defendants did not respond appropriately to threats of suicide by mentally ill prisoners, increasing the risk of suicide. With respect to the subjective prong of the Eighth Amendment claim, the complaint also included more than sufficient allegations that defendants knew that prisoners with serious mental illness were being exposed to a substantial risk of serious harm and were indifferent to that risk.

The panel held that reassignment to a different district court judge was required to preserve the appearance of justice. The panel noted that the district court had mistaken this case for another case brought by plaintiff against a different defendant and upon being advised of its mistake, had declined to revisit its decision, thereby letting an obviously incorrect decision stand.

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COUNSEL

Jeffrey A. Simmons (argued), Foley & Lardner LLP, Madison, Wisconsin; Alex Rate (argued), American Civil Liberties Union of Montana, Missoula, Montana; Kyle Gray and Adrian Miller; Holland & Hart LLP, Billings, Montana; Plaintiff-Appellant.

Thomas J. Leonard (argued), William L. Crowley, Mary Cile Glover-Rogers, Boone Karlberg P.C., Missoula, Montana; Colleen E. Ambrose, Special Assistant Attorney General, Montana Department of Corrections, Helena, Montana; for Defendants-Appellees.

Elisabeth Centeno Lopez, Alexandre H. Rene, Helen Vera, and Jonathan R. Ference-Burke, Ropes & Gray LLP, Washington, D.C.; Diane Smith Howard, National Disability Rights Network, Washington, D.C.; for Amici Curiae National Disability Rights Network and Ten Jurisdictions’ Protection and Advocacy Agencies.

OPINION
GOULD, Circuit Judge:
Disability Rights Montana, Inc. (“DRM”) alleges, pursuant to 42 U.S.C. § 1983, that the Director of the Montana Department of Corrections and the Warden of the Montana State Prison (the “DOC defendants”) have violated the Eighth Amendment rights of “all prisoners with serious mental illness who are confined to the Montana State Prison.” The district court dismissed DRM’s complaint for failing to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). However, DRM’s complaint, which

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describes the horrific treatment of prisoners, is supported by factual allegations more than sufficient to “state a claim to relief that is plausible on its face” under Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). We therefore reverse the district court’s dismissal of the complaint, remand for further proceedings, and reassign the case to a different district court judge.
I
A
The Protection and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. § 10801 et seq. (“PAIMI Act”), provides funds to maintain state level agencies for the protection of and advocacy for individuals with mental illness, and provides those designated agencies with the authority to investigate and seek legal remedies for abuse of such individuals. 42 U.S.C. § 10807(a). Plaintiff DRM is the PAIMI agency for Montana. As such, DRM is the organization tasked by Congress with “ensur[ing] that the rights of individuals with mental illness are protected” and “protect[ing] and advocat[ing] for the rights of such individuals through activities to ensure the enforcement of the Constitution and Federal and State statutes” for Montana’s mentally ill individuals. 42 U.S.C. § 10801(b)(1)–(2).
Under this authority, DRM challenges the treatment of individuals with serious mental illness in the Montana State Prison.1 DRM claims that the DOC defendants have

1 The district court expressed skepticism about whether the term “serious mental illness” has a legally cognizable meaning. It is unclear

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violated the rights of “all prisoners with serious mental illness who are confined to the Montana State Prison . . . to be free from cruel and unusual punishment” though policies and practices in place at the prison. DRM’s complaint is divided into roughly three sections. The first section of the complaint contains system-wide allegations about the treatment of inmates with “serious mental illness” in the Montana prison. The second section contains detailed allegations about particular inmates to illustrate the treatment seriously mentally ill patients are given in Montana’s prison. The third section alleges several different ways that the DOC defendants had been placed on notice of the risks posed by their treatment of prisoners with serious mental illness.
The complaint alleges that the defendants act under the color of state law in administering the prison and that they remain responsible for administering the policies and practices that are the subject of the complaint. Specifically, the complaint isolates nine prison practices and/or policies that DRM contends are constitutionally suspect:
1) placing prisoners with serious mental illness in various forms of solitary confinement for 22 to 24 hours per day for months and years at a time;

from the record what motivates this skepticism, but we note that the Supreme Court’s decision in Brown v. Plata was itself concerned with “[p]risoners in California with serious mental illness” and directly held that such prisoners are entitled to a certain standard of mental health care. 563 U.S. 493, 503 (2011); see also Coleman v. Wilson, 912 F. Supp. 1282, 1301 (E.D. Cal. 1995) (holding that case law sufficiently “provides a legal gloss” on the term “serious mental disorder”). Both our court and the district court lack authority to second guess this holding. Moreover, the complaint alleges a specific definition of “serious mental illness.”

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2) placing prisoners with serious mental illness on behavior management plans that involve solitary confinement and extreme restrictions of privileges;
3) having no standards for determining whether placing a prisoner with serious mental illness in solitary confinement or on a behavior management plan will be harmful to the prisoner’s mental health;
4) engaging in a pattern of refusing to properly diagnose prisoners as suffering from serious mental illness;
5) engaging in a pattern of refusing to provide prisoners with medications for serious mental illness;
6) failing to have a system in place to review and evaluate the diagnosing and prescribing practices of its mental health staff;
7) failing to have a system to classify prisoners according to their mental health needs;
8) failing to adequately consider prisoners’ serious mental illnesses when making decisions about prisoners’ housing and custody levels; and
9) having no system in place for auditing, evaluating or ensuring the effectiveness of its mental health care program in treating prisoners with serious mental illness.
The complaint goes on to allege specific facts supporting the existence of these policies and their effect on prisoners with serious mental illness. For instance, the complaint alleges that the mental health treatment community has established that “subjecting prisoners to extended periods of

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solitary confinement is detrimental to their mental health,” citing statements from national correctional health organizations on the inappropriateness of using such punishments on the seriously mentally ill. The complaint then describes in detail the solitary confinement procedures used at the prison, alleging that “[t]he Prison regularly places prisoners with serious mental illness in all of the forms of solitary confinement described above for weeks and months at a time.” The complaint alleges that prison staff identify individuals with serious mental illness as “good candidates” for solitary confinement, placing them in solitary confinement for weeks and months at a time. The complaint further alleges that the DOC defendants subject prisoners to being locked alone in their cells for 22 to 24 hours a day, seven days a week, and that while in solitary confinement, a prisoner’s “primary contact with mental health staff . . . lasts no more than a few minutes and is conducted at the prisoner’s cell door,” with no privacy from other prisoners or staff. Throughout the first section, the complaint supports its objection to each of the policies and practices listed with specific factual descriptions of how prisoners are typically treated and the accessibility and quality of mental health care at the prison.
The second section of the complaint provides allegations, consistent with the system-wide allegations, concerning nine individual prisoners. In substance, the allegations are horrifying, involving prisoners with very severe symptoms of mental illness who went largely untreated and who were subjected to extreme and lengthy solitary confinement punishments. The policies and practices DRM alleged to be in place at the prison are evident in these examples. The facts alleged in these illustrative examples include numerous instances of prison mental health staff deciding to limit prisoners’ access to prescribed

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mental health medication, including staff denying mentallyill inmates their medications entirely. In graphic detail, DRM’s complaint describes how these policies and practices allegedly harm the mental health of prisoners, harm that allegedly culminated in the suicides of three of the described prisoners.2
The third section of DRM’s complaint specifically alleges the DOC defendants’ involvement in the complained of policies and practices. DRM alleges that defendants are aware of the fact that solitary confinement harms prisoners with serious mental illness, are aware of prison mental health standards that contradict their practices, have no standards for guiding mental health staff in the punishment of prisoners misbehaving because of mental illness, have been made aware of the plight of seriously mentally ill prisoners through repeated administrative and grievance proceedings, have been sued twice in Montana for their treatment of mentally ill prisoners, and have been repeatedly informed of the deficiencies of their treatment of prisoners with serious mental illness by DRM itself. Based on this description of the DOC defendants’ knowledge of the objectionable policies, DRM finally alleges that “[g]iven their knowledge of these practices, and their knowledge of the serious harm that can be caused by these practices, and their refusal to change these practices, the DOC Defendants have been deliberately indifferent to the serious medical needs of prisoners with serious mental illness.”

2 The district court expressed skepticism about the legal relevance of facts about deceased prisoners to the current claim. But these allegations, if true, would clearly provide powerful support to DRM’s claim that Montana’s punishing treatment of prisoners with serious mental illness is constitutionally defective. See e.g., Plata, 563 U.S. at 508, 519 (discussing the suicides of prisoners kept in administrative segregation as evidence of defective prison mental health care).

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B
DRM initially included these Eighth Amendment claims against the DOC defendants in a broader suit that also alleged due process claims against the Montana Department of Public Health and Human Services (“DPHHS”). The due process claims concerned how people convicted as “Guilty But Mentally Ill” were transferred between the Montana State Hospital and the Montana State Prison. At a status conference, the district court orally ordered DRM to replead its claims in separate complaints, confusingly theorizing that there should be three separate cases.3 DRM then filed two separate complaints—separating the Eighth Amendment claims against the DOC defendants from the due process claims against the DPHHS. This appeal only concerns the case against the DOC defendants.
Shortly after the claims were separated, the DOC defendants filed a motion to dismiss the Eighth Amendment case for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The district court decided this motion in a hearing held immediately after a hearing on a motion to dismiss in the separate case brought against the DPHHS. At the conclusion of the hearing in the present case, the district court orally granted the motion to dismiss, ostensibly holding that the claims were not “adequately pleaded to withstand this Iqbal/Twombly Motion to Dismiss.” However, the court’s stated rationale was focused entirely on the due process claims that were at issue in the suit against DPHHS, repeatedly mentioning “liberty interest,”

3 The district court left counsel “discretion” in how to design the new complaints, but suggested they might be separated into the claims of deceased prisoners, seriously mentally ill prisoners, and Guilty But Mentally Ill prisoners. Those three categories of prisoners are not mutually exclusive.

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“transfer,” and a statute governing transfers between the hospital and the prison. The court did not give an explanation as to how DRM had failed to plead an Eighth Amendment claim against the DOC defendants. The DPHHS defendants filed a motion requesting that the district court revisit its orders on the motions on the basis that the court had mistaken the two cases for one another. Before DRM could do the same, the district court issued an order denying the motion and again stating that it had correctly dismissed the case against the DOC defendants. This appeal resulted.
II
A
We review dismissals under rule 12(b)(6) de novo. Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 890 (9th Cir. 2019). The standard for surviving a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) after the Supreme Court’s decisions in Twombly and Iqbal is that the plaintiff must provide “a short and plain statement of the claim showing the pleader is entitled to relief” which “contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Sheppard v. David Evans & Assoc., 694 F.3d 1045, 1048 (9th Cir. 2012) (citing Twombly, 550 U.S. at 555, and Iqbal, 556 U.S. at 678). To meet this burden, “the nonconclusory ‘factual content’” of DRM’s complaint and “reasonable inferences from that content,” must be at least “plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (citing Twombly, 550 U.S. at 557). We must “take all allegations of material fact as true and construe them in the light most favorable to the nonmoving party.” Steinle v. City and Cty. of S.F., 919

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F.3d 1154, 1160 (9th Cir. 2019) (quoting Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995)).
B.
With respect to the substance of DRM’s complaint asserting a 42 U.S.C. § 1983 violation of prisoners’ right to be free of cruel and unusual punishment, a large body of Supreme Court law governs, most recently the Supreme Court’s decision in Brown v. Plata, where the Supreme Court explained that “[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man.” Brown v. Plata, 563 U.S. 493, 510 (2011) (quoting Atkins v. Virginia, 536 U.S. 304, 311 (2002)). Consistent with that concept and the clear connections between mental health treatment and the dignity and welfare of prisoners, the Eighth Amendment’s prohibition against cruel and unusual punishment requires that prisons provide mental health care that meets “minimum constitutional requirements.” Id. at 501; see also Doty v. Cty. of Lassen, 37 F.3d 540, 546 (9th Cir. 1994) (holding that “the requirements for mental health care are the same as those for physical health care needs”). When the level of a prison’s mental health care “fall[s] below the evolving standards of decency that mark the progress of a maturing society,” the prison fails to uphold the constitution’s dignitary principles. Plata, 563 U.S. at 505 n.3.
“A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 828 (1994) (citing Helling v. McKinney, 509 U.S. 25 (1993)); see also Parsons v. Ryan, 754 F.3d 657, 677 (9th Cir. 2014); Graves v. Arpaio, 623 F.3d 1043, 1049 (9th Cir. 2010); Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th Cir. 1995). Where a plaintiff alleges systemwide deficiencies, “policies

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and practices of statewide and systematic application [that] expose all inmates in [the prison’s] custody to a substantial risk of serious harm,” we assess the claim through a twopronged inquiry. 4 Parsons, 754 F.3d at 676; see also Plata, 563 U.S. at 505 n.3 (noting that “[p]laintiffs rely on systemwide deficiencies in the provision of medical and mental health care that, taken as a whole, subject sick and mentally ill prisoners in California to ‘substantial risk of harm’”). The first, objective, prong requires that the plaintiff show that the conditions of the prison pose “a substantial risk of serious harm.” Farmer, 511 U.S. at 834 (1994) (citing Helling, 509 U.S. at 35). The second, subjective, prong requires that the plaintiff show that a prison official was deliberately indifferent by being “aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists,” and “also draw[ing] the inference.” Farmer, 511 U.S. at 837.
Consistent with this well-established precedent, DRM’s complaint states a claim and survives a motion to dismiss under Rule 12(b)(6) if it contains sufficient factual allegations to make it plausible, taking all the allegations as true, that (1) the prison policies and practices DRM describes expose inmates with serious mental illness to a substantial risk of serious harm and (2) that the DOC defendants are deliberately indifferent to that risk.

4 These cases are different from those in which a plaintiff alleges “that the care provided on any particular occasion to any particular inmate (or group of inmates) was insufficient.” Parsons, 754 F.3d at 677. Moreover, cases like this one for official or supervisory liability must meet a different standard than cases for municipal liability. The DOC defendants’ numerous citations to the municipal liability standard are therefore unhelpful.

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III
The district court’s oral ruling on the motion appears to have confused this case with the case filed against the DPHHS. Despite ostensibly ruling that DRM had failed to meet the Twombly/Iqbal pleading standard, the district court did not engage with the factual allegations in DRM’s complaint, choosing instead to discuss the possible existence of a due process liberty interest based on the facts alleged against the DPHHS in the other case. Because the district court declined to reconsider or further explain its ruling, our de novo review of the district court’s order is the first application of the Iqbal/Twombly standard to DRM’s complaint. We conclude that DRM has stated a claim on which relief could be granted. DRM’s complaint plausibly alleges that the DOC defendants were deliberately indifferent under the established two-prong test, and it alleges specific facts to support each element.5
A
DRM’s complaint contains sufficient factual allegations to make it plausible that the prison’s policies and practices pose a substantial risk of serious harm to prisoners with serious mental illness, satisfying the objective element. DRM made extensive factual allegations about the effect that the prison’s punishment practices have on prisoners with serious mental illness. DRM’s complaint alleged that prisoners with serious mental illness are denied diagnosis and treatment of their conditions, described a distressing

5 The DOC defendants’ contention that DRM does not have standing to seek injunctive or declaratory relief pursuant to the Prison Litigation Reform Act (“PLRA”) is baseless. The PLRA addresses the scope of injunctive relief and not the pleading requirements plaintiffs face. See 18 U.S.C. § 3626(a)(1)(A).

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pattern of placing mentally ill prisoners in solitary confinement for “weeks and months at a time” without significant mental health care, alleged the frequent, improper use of this punishment for behavior arising from mental illness, marshalled relevant quotations from national prison health organizations about the unacceptability of subjecting prisoners to extensive solitary confinement, and alleged that the defendants did not respond appropriately to threats of suicide by mentally ill prisoners, increasing the risk of suicide. Far from being “a wholly conclusory statement” of its claim, DRM’s complaint provides detailed allegations on each of these points, reflecting significant information about the function of the prison and its policies with respect to the seriously mentally ill. Twombly, 550 U.S. at 561.
These allegations, by themselves, were enough to make it plausible that prison policies and practices pose a substantial risk of serious harm. See Sheppard, 694 F.3d at 1048–49. But these allegations make up only a portion DRM’s complaint. About half of the complaint included further factual allegations supporting the existence of harmful prison policies and the risk of serious harm that they pose. There were allegations that the defendants’ policies caused prisoners’ mental health to get substantially worse, resulted in prisoners inflicting self-harm, and contributed, on at least three occasions, to prisoners committing suicide. To require more would overstate what needs to be alleged to state a claim at the beginning of a lawsuit before discovery. See Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
Analyzing the sufficiency of a complaint is “a context specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. The complaint’s allegations that these practices and policies compromise the health and dignity of prisoners with

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serious mental illness are thoroughly consistent with common sense and legal experience. See, e.g., Plata, 563 U.S. at 503–04 (noting that prisoners “with serious mental illness do not receive minimal, adequate care” when they spend “months in administrative segregation” with “harsh and isolated conditions” and “limited mental health services”); Graves v. Arpaio, 48 F. Supp. 3d 1318, 1335 (D. Ariz. 2014) (“Holding inmates with serious mental illness in prolonged isolated confinement may cause serious illness and needless suffering in violation of the Eighth Amendment.”); Coleman v. Brown, 938 F. Supp. 3d 955, 979–80 (E.D. Cal. 2013) (holding that “seriously mentally ill inmates placed in administrative segregation units continued to face a substantial risk of harm”); Coleman v. Wilson, 912 F. Supp. 1282, 1320–22 (E.D. Cal. 1995) (holding that a prison violated the Eighth Amendment by imposing administrative segregation on mentally ill inmates without providing proper care). DRM’s allegations are also consistent with the expert evidence quoted in the complaint and provided by the amicus brief, which argues that “medical and social-science researchers . . . have demonstrated that solitary confinement can lead to or exacerbate mental illness and psychological deterioration,” including increasing the risk of suicide. DRM’s complaint plausibly alleges that prison policies and practices pose a substantial risk of serious harm to prisoners who are seriously mentally ill.
B
With respect to the subjective prong of DRM’s Eighth Amendment claim, the complaint also includes more than sufficient allegations. DRM provides four different kinds of support for its claim that the DOC defendants knew that prisoners with serious mental illness are being exposed to a

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substantial risk of serious harm and were indifferent to that risk. See Farmer, 511 U.S. at 842 (holding that “it is enough that the official acted or failed to act despite his knowledge of substantial risk of serious harm”). DRM’s complaint alleged (1) that Montana’s prison has been sued twice complaining about factually similar conditions at the prison, (2) that the prison sought certification from a national prison health care body whose mental health care standards would put them on notice of these problems, (3) that the DOC defendants receive regular grievances and appeals from prisoners complaining about the prison’s treatment of their mental illness, and (4) that DRM itself has “repeatedly informed Prison officials of the serious deficiencies in the Prison’s treatment of prisoners with serious mental illness.” Each of these allegations, if taken as true, plausibly supports the view that the DOC defendants knew about the risks to which prisoners were exposed and that the DOC defendants deliberately chose to maintain the harmful policies. See, e.g., Lemire v. Cal. Dep’t of Corr. and Rehab., 726 F.3d 1062, 1078 (9th Cir. 2013) (concluding that plaintiffs stated a claim for deliberate indifference where “litigation specifically alerted prison officials to the acute problem of inmate suicides”); Hunt v. Dental Dep’t, 865 F.2d 198, 201 (9th Cir. 1989) (holding that a dispute of fact prevented summary judgment on deliberate indifference where a grievance form could have put defendant on notice to plaintiff’s request for treatment).
Defendants argue that these allegations are insufficient to defeat a motion to dismiss on the subjective prong of the Eighth Amendment inquiry. But the information in DRM’s complaint speaks to precisely the sort of “circumstances [that] suggest that the defendant-official being sued had been exposed to information concerning the risk . . . sufficient to permit a trier of fact to find that the defendant official had

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actual knowledge of the risk.” Farmer, 511 U.S. at 842–43. Even independent of these allegations, it is plausible that DRM’s allegations could succeed because of an inference that “the official[s] knew of a substantial risk from the very fact that the risk was obvious.” Id. at 842.
IV
DRM contends that the case should be reassigned to a different district court judge on remand. “Absent proof of personal bias on the part of the district judge, remand to a different judge is proper only under unusual circumstances.” United States v. Reyes, 313 F.3d 1152, 1159 (9th Cir. 2002). We have long held that whether these unusual circumstances obtain depends on three factors:
(1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.
United States v. Arnett, 628 F.2d 1162, 1165 (9th Cir. 1979) (quoting United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977) (en banc)); see also Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1034 (9th Cir. 2012) (applying these factors from Arnett). These factors are not evenly weighed, however, and we have established that “[t]he first two factors are equally important, and a finding of either is sufficient to support reassignment on remand.” Krechman v. Cty. of

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Riverside, 723 F.3d 1104, 1112 (9th Cir. 2013) (citing United States v. Sears, Roebuck & Co., Inc., 785 F.2d 777, 780 (9th Cir. 1986)); see also Manley v. Rowley, 847 F.3d 705, 712–13 (9th Cir. 2017).
In this case, although we do not suggest that the district court acted with ill will or with actual bias against plaintiffs, we hold that reassignment is required to preserve the appearance of justice. When the district court dismissed DRM’s claims, its oral reasoning concerned the case against the DPHHS defendants, and in our view had nothing to do with this case. The district court was then presented with a motion by the DPHHS defendants pointing out that the district court had erred in confusing the case against the DOC defendants with the case against the DPHHS defendants. Yet, the district court declined to revisit its decision, letting an obviously incorrect decision stand that resulted in this appeal with the issues it presents. Because the district court did not correct its mistake and issue a reasoned decision, the district court’s error has more impact on plaintiffs than a mere oversight.
As we have previously held, “adamancy in erroneous rulings may justify remand to [a] different judge.” Reyes, 313 F.3d at 1159–60 (citing Sears, Roebuck & Co., 785 F.2d at 780). This holding reflects the sound reasoning that judges who have insisted on erroneous rulings, even when their errors are obvious and have been highlighted for the court, might not appear to the disfavored parties to be likely to decide in accord with the law in the future. When a district court errs in this way, especially when the court gives no plausible justification for its decision, parties and observers may justifiably doubt whether the future disposition of their matter in the continuing proceedings will be based on proper considerations of law and equity. In such circumstances, we

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conclude that the appearance of justice requires that judicial decisions be responsive to the facts and rational arguments before the court. The appearance of justice is undermined when a court’s actions are unresponsive to those considerations. When a court confuses two different cases and chooses to erroneously dismiss a party’s claim rather than to revisit its decision, its actions are sufficiently unresponsive to those considerations as to merit reassignment. Because this case remains at the pleading stage, “any duplication of judicial efforts will be minimal,” and the benefits of reassigning will far outweigh the costs. Manley, 847 F.3d at 713.
V
This case is controlled by the Supreme Court’s decisions in Brown v. Plata and in Farmer v. Brennan. Under Brown v. Plata, an Eighth Amendment claim is made out if prisoners with serious mental illnesses face a substantial risk of serious harm, and this is met with deliberate indifference to their condition. This makes good sense because once persons are incarcerated, they can no longer see to their own medical needs. In these circumstances, the state, which incarcerated them and limited their ability to seek care for themselves, stands in a unique relation that requires it to provide necessary medical care and protect against serious medical risks. Under Farmer, a prisoner meets the first prong of the test for cruel and unusual punishment if he or she can show that prison policies or practices pose a “substantial risk of serious harm.” The second prong is met upon showing of deliberate indifference, which, as Farmer makes clear, is shown adequately when a prison official is aware of the facts from which an inference could be drawn about the outstanding risk, and the facts permit us to infer that the prison official in fact drew that inference, but then

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consciously avoided taking appropriate action. Here, the facts alleged are adequate to support the claim that has been asserted under these principles.
Iqbal and Twombly require only that a plausible claim be alleged, not that it can be proven with certainty. Enough facts are plausibly alleged in the complaint so that this matter should not have been dismissed without further process. We reverse the district court’s judgment and remand to a different district court judge for further proceedings consistent with this opinion.
REVERSED AND REMANDED.

 
 Case: 2:14-cv-25 As of: 10/07/2019 08:28 PM MDT 1 of 11
U.S. District Court District of Montana (Butte) CIVIL DOCKET FOR CASE #: 2:14−cv−00025−SEH

CLOSED

Disability Rights Montana v. Opper et al Assigned to: Judge Sam E Haddon Cause: 42:1983 Civil Rights Act
Plaintiff Disability Rights Montana Inc.

Date Filed: 03/31/2014 Date Terminated: 04/12/2016 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Adrian Ann Miller SULLIVAN MILLER LAW PLLC 3860 Avenue B, Suite C East Billings, MT 59102 406−403−7066 Fax: 406−294−5702 Email: adrian.miller@sullivanmiller.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna C. Conley MISSOULA COUNTY ATTORNEY 200 W Broadway, County Courthouse Missoula, MT 59802 406−258−4737 Email: aconley@missoulacounty.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey A. Simmons FOLEY & LARDNER LLP − MADISON 150 East Gilman Street, Suite 5000 Madison, WI 53703−1482 608−257−5035 Fax: 608−258−4258 Email: jsimmons@foley.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jon E. Ellingson Attoney At Law 141 North Ave. East Missoula, MT 59801 406−546−9084 Email: jonelling@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kyle A. Gray HOLLAND & HART PO Box 639 Billings, MT 59103−0639 406−252−2166 Fax: 252−1669 Email: kgray@hollandhart.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew D. Lee FOLEY & LARDNER LLP − MADISON

Case: 2:14-cv-25 As of: 10/07/2019 08:28 PM MDT 2 of 11
150 East Gilman Street, Suite 5000 Madison, WI 53703−1482 608−258−4203 Fax: 608−258−4258 Email: mdlee@foley.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tammy H. Boggs FOLEY & LARDNER LLP − SAN DIEGO 3579 Valley Centre Drive, Suite 300 San Diego, CA 92130 858−847−6739 Fax: 858−792−6773 Email: tboggs@gmail.com TERMINATED: 02/20/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
James Park Taylor ACLU OF MONTANA 241 E. Alder PO Box 9138 Missoula, MT 59807 406−549−6159 Fax: 406−549−5177 Email: jpt42@hotmail.com ATTORNEY TO BE NOTICED

V. Defendant Richard Opper in his official capacity as Director of the Montana Department of Public Health and Human Services
Defendant John Glueckert in his official capacity as Administrator of the Montana State Hospital

represented by Paulette Kohman DPHHS/Office of Legal Affairs PO Box 202951 Helena, MT 59620−2951 406−444−1258 Fax: 406−444−1258 Email: pkohman@mt.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Alan Kauffman DRAKE LAW FIRM 111 North Last Chance Gulch Suite 3J Arcade Building PO Box 1181 Helena, MT 59624−1181 406−495−8080 Fax: 406−495−1616 Email: michael@drakemt.com ATTORNEY TO BE NOTICED
represented by Paulette Kohman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Alan Kauffman

Case: 2:14-cv-25 As of: 10/07/2019 08:28 PM MDT 3 of 11

(See above for address) ATTORNEY TO BE NOTICED

Defendant
Mike Batista in his offical capacity as Director of the Montana Department of Corrections

represented by Mary Cile Glover Rogers BOONE KARLBERG, P.C. 201 West Main Street, Suite 300 PO Box 9199 Missoula, MT 59807−9199 406−454−6646 Fax: 406−549−6804 Email: mgloverrogers@boonekarlberg.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas J. Leonard BOONE KARLBERG, P.C. 201 West Main Street, Suite 300 PO Box 9199 Missoula, MT 59807−9199 406−543−6646 Fax: 549−6804 Email: tleonard@boonekarlberg.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

William L. Crowley BOONE KARLBERG, P.C. 201 West Main Street, Suite 300 PO Box 9199 Missoula, MT 59807−9199 406−543−6646 Fax: 549−6804 Email: bcrowley@boonekarlberg.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen E. Ambrose MONTANA DEPARTMENT OF CORRECTIONS P. O. Box 201301 Helena, MT 59620−1301 406−444−4152 Fax: 444−1494 Email: cambrose@mt.gov ATTORNEY TO BE NOTICED

Defendant
Cathy Redfern in her offical capacity as Health Services Bureau Chief for the Montana Department of Corrections TERMINATED: 10/31/2014

represented by Mary Cile Glover Rogers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas J. Leonard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William L. Crowley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen E. Ambrose

Case: 2:14-cv-25 As of: 10/07/2019 08:28 PM MDT 4 of 11

(See above for address) ATTORNEY TO BE NOTICED

Defendant
Leroy Kirkegaard in his official capacity as Staff Psychiatrist of Montana State Prison

represented by Mary Cile Glover Rogers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas J. Leonard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William L. Crowley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen E. Ambrose (See above for address) ATTORNEY TO BE NOTICED

Defendant
Jill Buck in her official capacity as Mental Health Director of Montana State Prison TERMINATED: 10/31/2014

represented by Mary Cile Glover Rogers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas J. Leonard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William L. Crowley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen E. Ambrose (See above for address) ATTORNEY TO BE NOTICED

Defendant
Dr. Peter Edwards in his official capacity as Staff Psychiatrist of Montana State Prison TERMINATED: 10/31/2014

represented by Mary Cile Glover Rogers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas J. Leonard (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William L. Crowley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen E. Ambrose (See above for address) ATTORNEY TO BE NOTICED

Case: 2:14-cv-25 As of: 10/07/2019 08:28 PM MDT 5 of 11

Defendant Unnamed Defendant No. 1 in his or her official capacity as Mental Health Director of Montana State Prison
Defendant Unnamed Defendant No. 2 in his or her official capacity as Staff Psychiatrist of Montana State Prison

represented by William L. Crowley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William L. Crowley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/31/2014 03/31/2014 03/31/2014 03/31/2014 04/29/2014 04/29/2014 05/06/2014 05/06/2014 05/06/2014 05/06/2014 05/06/2014 05/20/2014
05/20/2014
05/21/2014

# Docket Text
1 COMPLAINT against Disability Rights Montana, filed by Disability Rights Montana. (Attachments: # 1 Civil Cover Sheet) (ELL, ) (Entered: 03/31/2014)
2 Summons Issued as to Mike Batista, Jill Buck, Peter Edwards, John Glueckert, Leroy Kirkegaard, Richard Opper, Cathy Redfern. (Originals mailed to cnsl for service) (ELL, ) (Entered: 03/31/2014)
3 Corporate Disclosure Statement by Disability Rights Montana. (Gray, Kyle) (Entered: 03/31/2014)
Filing fee: $ 400.00, receipt number 0977−1383631 (ELL, ) (Entered: 03/31/2014)
4 WAIVER OF SERVICE Returned Executed by Disability Rights Montana. Richard Opper waiver sent on 4/2/2014, answer due 6/2/2014. (Gray, Kyle) (Entered: 04/29/2014)
5 WAIVER OF SERVICE Returned Executed by Disability Rights Montana. John Glueckert waiver sent on 4/2/2014, answer due 6/2/2014. (Gray, Kyle) (Entered: 04/29/2014)
6 WAIVER OF SERVICE Returned Executed by Disability Rights Montana. Leroy Kirkegaard waiver sent on 4/2/2014, answer due 6/2/2014. (Gray, Kyle) (Entered: 05/06/2014)
7 WAIVER OF SERVICE Returned Executed by Disability Rights Montana. Jill Buck waiver sent on 4/2/2014, answer due 6/2/2014. (Gray, Kyle) (Entered: 05/06/2014)
8 WAIVER OF SERVICE Returned Executed by Disability Rights Montana. Peter Edwards waiver sent on 4/2/2014, answer due 6/2/2014. (Gray, Kyle) (Entered: 05/06/2014)
9 WAIVER OF SERVICE Returned Executed by Disability Rights Montana. Cathy Redfern waiver sent on 4/2/2014, answer due 6/2/2014. (Gray, Kyle) (Entered: 05/06/2014)
10 WAIVER OF SERVICE Returned Executed by Disability Rights Montana. Mike Batista waiver sent on 4/2/2014, answer due 6/2/2014. (Gray, Kyle) (Entered: 05/06/2014)
11 Unopposed MOTION Jeffrey A. Simmons to Appear Pro Hac Vice ( Filing fee $ 250 receipt number MTX900007224.) Anna C. Conley appearing for Plaintiff Disability Rights Montana (Attachments: # 1 Exhibit Affidavit of Jeffrey A. Simmons, # 2 Exhibit Proposed Order) (Conley, Anna) (Entered: 05/20/2014)
12 Unopposed MOTION Tammy H. Boggs to Appear Pro Hac Vice ( Filing fee $ 250 receipt number MTX900007224.) Anna C. Conley appearing for Plaintiff Disability Rights Montana (Attachments: # 1 Exhibit Affidavit of Tammy H. Boggs, # 2 Exhibit Proposed Order) (Conley, Anna) (Entered: 05/20/2014)
13 ORDER granting 11 Motion to Appear Pro Hac Vice for atty Jeffrey A. Simmons. Signed by Judge Sam E Haddon on 5/21/2014. (ELL, ) (Entered: 05/21/2014)

Case: 2:14-cv-25 As of: 10/07/2019 08:28 PM MDT 6 of 11

05/21/2014 05/21/2014 06/02/2014 06/02/2014 06/02/2014
06/03/2014 06/04/2014 06/05/2014 06/23/2014 06/30/2014 07/01/2014 07/07/2014 07/10/2014 07/15/2014
07/15/2014
07/15/2014
07/16/2014
07/16/2014

14 ORDER granting 12 Motion to Appear Pro Hac Vice for atty Tammy H. Boggs. Signed by Judge Sam E Haddon on 5/21/2014. (ELL, ) (Entered: 05/21/2014)
15 Letter to atty Boggs re ECF Registration (Attachments: # 1 Letter to atty Simmons re ECF Registration) (ELL, ) (Entered: 05/21/2014)
16 Joint ANSWER to 1 Complaint by Mike Batista, Jill Buck, Peter Edwards, Leroy Kirkegaard, Cathy Redfern. (Crowley, William) (Entered: 06/02/2014)
17 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Paulette Kohman appearing for Defendants John Glueckert, Richard Opper (Kohman, Paulette) (Entered: 06/02/2014)
18 Brief/Memorandum in Support re 17 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by John Glueckert, Richard Opper. (Attachments: # 1 Appendix Appendix I: Fact Excerpts re Opper n Glueckert, # 2 Exhibit Exhibit A: DPHHS Website printout, # 3 Exhibit DPHHS Press Release) (Kohman, Paulette) (Entered: 06/02/2014)
Remark: phv counsel T. Boggs is now a registered user and will receive electronic notices in this matter and for the Dist of MT. (DED, ) (Entered: 06/03/2014)
19 NOTICE of Acknowledgment of Pro Hac Vice Order by Disability Rights Montana re 14 Order on Motion to Appear Pro Hac Vice and Acceptance of Admission by Tammy Boggs (Boggs, Tammy) (Entered: 06/04/2014)
20 NOTICE of Acknowledgment of Pro Hac Vice Order by Disability Rights Montana (Simmons, Jeffrey) (Entered: 06/05/2014)
21 RESPONSE to Motion re 17 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Disability Rights Montana. (Simmons, Jeffrey) (Entered: 06/23/2014)
22 NOTICE of Appearance by James Park Taylor on behalf of All Plaintiffs (Taylor, James) (Entered: 06/30/2014)
23 NOTICE of Change of Address by Anna C. Conley (Conley, Anna) (Entered: 07/01/2014)
24 REPLY to Response to Motion re 17 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by John Glueckert, Richard Opper. (Kohman, Paulette) (Entered: 07/07/2014)
25 NOTICE of Appearance by Jon E. Ellingson on behalf of All Plaintiffs (Ellingson, Jon) (Entered: 07/10/2014)
26 MOTION to Strike Defendants Richard Opper And John Glueckerts Argument Regarding Eleventh Amendment Defense, Or Alternatively For Leave To File A Sur−Reply In Response Thereto Jeffrey A. Simmons appearing for Plaintiff Disability Rights Montana (Simmons, Jeffrey) (Entered: 07/15/2014)
27 Brief/Memorandum in Support re 26 MOTION to Strike Defendants Richard Opper And John Glueckerts Argument Regarding Eleventh Amendment Defense, Or Alternatively For Leave To File A Sur−Reply In Response Thereto filed by Disability Rights Montana. (Simmons, Jeffrey) (Entered: 07/15/2014)
28 ORDER Setting Hearing on Motion 17 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM : GENA EALES CONTRACTED TO REPORT, Motion Hearing set for 7/23/2014 at 01:00 PM in Butte, MT before Judge Sam E Haddon. Signed by Judge Sam E Haddon on 7/15/2014. (HEG, ) Modified on 7/17/2014 to add court reporter information (ELL, ). (Entered: 07/15/2014)
29 ORDER granting in part and denying in part 26 Motion to Strike. Pla shall have to and incl 7/22/14 in which to file a sur−reply brief directed to the issue of Eleventh Amendment sovereign immunity. Signed by Judge Sam E Haddon on 7/16/2014. (ELL, ) (Entered: 07/16/2014)
30 RESPONSE to Motion re 26 MOTION to Strike Defendants Richard Opper And John Glueckerts Argument Regarding Eleventh Amendment Defense, Or Alternatively For Leave To File A Sur−Reply In Response Thereto filed by John Glueckert, Richard Opper. (Kohman, Paulette) (Entered: 07/16/2014)

Case: 2:14-cv-25 As of: 10/07/2019 08:28 PM MDT 7 of 11

07/21/2014 07/23/2014
07/24/2014 08/04/2014
09/05/2014 09/05/2014 09/05/2014 09/05/2014 09/09/2014 09/16/2014
09/16/2014 10/15/2014 10/31/2014 11/10/2014 11/10/2014
11/10/2014 11/17/2014

31 REPLY to Response to Motion re 17 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Sur−Reply Brief filed by Disability Rights Montana. (Simmons, Jeffrey) (Entered: 07/21/2014)
32 MINUTE ENTRYMinute Entry for proceedings held before Judge Sam E Haddon: Motion Hearing held on 7/23/2014 re 17 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by John Glueckert, Richard Opper. Present in courtroom are Paulette Kohman for dft Opper and Glueckert. Jeffrey Simmons and James Taylor for Pla Disability Rights Montana. Stmts by Kohman and Simmons. Court will take the matter under advisement. Hearing commenced at 1:00 p.m. and concluded at 2:15 p.m.. (Court Reporter Gena Eales.) (Law Clerk: Bryan Dake), (Hearing held in Butte, Montana) (ELL, ) (Entered: 07/23/2014)
33 ORDER. Count I of the Complaint against Defendants Opper and Glueckert is dismissed. Signed by Judge Sam E Haddon on 7/24/2014. (ELL, ) (Entered: 07/24/2014)
34 PRELIMINARY PRETRIAL CONFERENCE ORDER. Preliminary Pretrial Statement due by 9/5/2014. Joint Discovery Plan due by 9/5/2014. Pretrial Conference set for 9/16/2014 at 10:00 AM in Helena, MT before Judge Sam E Haddon. Signed by Judge Sam E Haddon on 8/4/2014. (APP, ) (Entered: 08/04/2014)
35 STATEMENT OF STIPULATED FACTS by Disability Rights Montana. (Simmons, Jeffrey) (Entered: 09/05/2014)
36 JOINT DISCOVERY PLAN by Disability Rights Montana. (Simmons, Jeffrey) (Entered: 09/05/2014)
37 PRELIMINARY PRETRIAL STATEMENT by Mike Batista, Jill Buck, Peter Edwards, Leroy Kirkegaard, Cathy Redfern. (Crowley, William) (Entered: 09/05/2014)
38 PRELIMINARY PRETRIAL STATEMENT by Disability Rights Montana. (Simmons, Jeffrey) (Entered: 09/05/2014)
39 NOTICE of Appearance by Colleen E. Ambrose on behalf of Mike Batista, Jill Buck, Peter Edwards, Leroy Kirkegaard, Cathy Redfern (Ambrose, Colleen) (Entered: 09/09/2014)
40 SCHEDULING ORDER: Status Conference by Telephone set for 2/16/2016 at 11:00 AM in Helena, MT before Judge Sam E Haddon. Amended Pleadings due by 10/31/2014. Discovery due by 12/4/2015. Joinder of Parties due by 10/31/2014. Motions due by 1/22/2016. Proposed Pretrial Order due by 4/1/2016. Signed by Judge Sam E Haddon on 9/16/2014. (ELL, ) (Entered: 09/16/2014)
MINUTE ENTRYMinute Entry for proceedings held before Judge Sam E Haddon: Initial Pretrial Conference held on 9/16/2014. (LJF, Lisa) (Entered: 09/17/2014)
41 STIPULATION for Protective Order by Disability Rights Montana. (Simmons, Jeffrey) (Entered: 10/15/2014)
42 AMENDED COMPLAINT against Mike Batista, John Glueckert, Leroy Kirkegaard, Richard Opper, filed by Disability Rights Montana. (Simmons, Jeffrey) (Entered: 10/31/2014)
43 Unopposed MOTION for Extension of Time to File Response to First Amended Complaint Paulette Kohman appearing for Defendants John Glueckert, Richard Opper (Attachments: # 1 Text of Proposed Order) (Kohman, Paulette) (Entered: 11/10/2014)
44 ORDER granting 43 Motion for Extension of Time to File. Defendants Opper and Glueckert's time to respond to the First Amended Complaint is extended to November 21, 2014. Signed by Judge Sam E Haddon on 11/10/2014. (ASG, ) (Entered: 11/10/2014)
Set/Reset Deadlines: John Glueckert answer due 11/21/2014; Richard Opper answer due 11/21/2014. (ASG, ) (Entered: 11/10/2014)
45 Joint ANSWER to 42 Amended Complaint by Mike Batista, Leroy Kirkegaard, Unnamed Defendant No. 1, Unnamed Defendant No. 2. (Crowley, William) (Entered:

Case: 2:14-cv-25 As of: 10/07/2019 08:28 PM MDT 8 of 11

11/21/2014 11/21/2014 11/25/2014 11/25/2014
12/19/2014 01/16/2015 02/20/2015 04/17/2015 04/20/2015 04/20/2015 04/20/2015 04/24/2015
04/24/2015 04/24/2015

11/17/2014)
46 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Amended Complaint) Paulette Kohman appearing for Defendants John Glueckert, Richard Opper (Kohman, Paulette) (Entered: 11/21/2014)
47 Brief/Memorandum in Support re 46 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Amended Complaint) filed by John Glueckert, Richard Opper. (Kohman, Paulette) (Entered: 11/21/2014)
48 Unopposed MOTION for Extension of Time to File Response/Reply as to 46 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Amended Complaint) Anna C. Conley appearing for Plaintiff Disability Rights Montana (Attachments: # 1 Text of Proposed Order) (Conley, Anna) (Entered: 11/25/2014)
49 ORDER granting 48 Motion for Extension of Time to File Response/Reply re 46 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Amended Complaint) Responses due by 12/19/2014. Replies due by 1/16/2015. Motions ripe 12/19/2014. All remaining deadlines in the Court's Order of 9/16/2014 remain in effect. Signed by Judge Sam E Haddon on 11/25/2014. (DED, ) (Entered: 11/25/2014)
50 RESPONSE to Motion re 46 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Amended Complaint) filed by Disability Rights Montana. (Simmons, Jeffrey) (Entered: 12/19/2014)
51 REPLY to Response to Motion re 46 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Amended Complaint) filed by John Glueckert, Richard Opper. (Kohman, Paulette) (Entered: 01/16/2015)
52 NOTICE of Withdrawal of Counsel: Tammy H. Boggs withdrawing from the case, filed by Disability Rights Montana (Boggs, Tammy) (Entered: 02/20/2015)
53 Order Setting: Gena Eales to report for hearing. Status Conference set for 4/24/2015 at 10:00 AM in Helena, MT before Judge Sam E Haddon. Signed by Judge Sam E Haddon on 4/17/2015. (ELL, ) Modified on 4/20/2015 to update reporter info (DED, ). (Entered: 04/17/2015)
54 MOTION for Leave to Appear for Leave to Appear by Telephone Jeffrey A. Simmons appearing for Plaintiff Disability Rights Montana (Simmons, Jeffrey) (Entered: 04/20/2015)
55 AFFIDAVIT in Support re 54 MOTION for Leave to Appear for Leave to Appear by Telephone filed by Disability Rights Montana. (Simmons, Jeffrey) (Entered: 04/20/2015)
56 ORDER granting 54 Motion for Leave to Appear by Telephone at the 4/24/15 status conf. Signed by Judge Sam E Haddon on 4/20/2015. (ELL, ) (Entered: 04/20/2015)
57 MINUTE ENTRY for proceedings held before Judge Sam E Haddon: Status Conference held on 4/24/2015. Present in the Courtroom are Jon Ellingson for Plaintiff, Paulette Kohman and Thomas Leonard for Defendants. Plaintiff PHV counsel Jeffery Simons present telephonically. Court advises parties of the purpose of todays hearing, summarizing matter to date. The Court orders a different approach to ensure the issues can be addressed. New complaints are to be filed. Complaints are to be separated into as many complaints as necessary to address the issues. Amended pleadings with simultaneous briefs in support are due by Friday, 5/8/15. The parties are to meet and confer by 5/8/15. Court will set a conference call on Monday, 5/11. Nothing further from the parties. Recess. (Court Reporter Gena Eales.) (Law Clerk: C. Sime), (Hearing held in Helena) (HEG, ) (Entered: 04/24/2015)
58 ORDER denying 46 Motion to Dismiss First Amended Complaint as to Them without prejudice to renewal as appropriate and directed to the amended pleadings. Signed by Judge Sam E Haddon on 4/24/2015. (NOS, ) (Entered: 04/24/2015)
59 Order Setting: Telephonic Status Conference set for 5/11/2015 at 01:00 PM before Judge Sam E Haddon. Signed by Judge Sam E Haddon on 4/24/2015. (NOS, ) (Entered: 04/24/2015)

Case: 2:14-cv-25 As of: 10/07/2019 08:28 PM MDT 9 of 11

04/24/2015 04/27/2015
05/04/2015 05/06/2015 05/06/2015 05/06/2015 05/08/2015 05/08/2015 05/08/2015 05/08/2015 05/11/2015 05/19/2015 05/20/2015
06/05/2015
06/05/2015

60 TRANSCRIPT DESIGNATION ORDER FORM by Disability Rights Montana for proceedings held on 04/24/2015 before Judge Sam E. Haddon. Court reporter Gena Eales. Transcript due by 4/27/2015. (Simmons, Jeffrey) (Entered: 04/24/2015)
61 TRANSCRIPT of Status Conference re 57 Status Conference, held on 4/24/2015, before Judge Haddon per 60 Transcript Designation Order Form. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER, the Clerks Office or the court reporter NOTICE: A NOTICE OF INTENT TO REQUEST REDACTION MUST BE FILED WITHIN 14 DAYS OF THIS FILING. Contact Court Reporter Gena Eales, 406−381−1645. Transcript Redaction Procedures . Redaction Request due 5/18/2015. Redacted Transcript Deadline set for 5/28/2015. Release of Transcript Restriction set for 7/27/2015. (DED, ) (Entered: 04/27/2015)
Set/Reset Hearings: Status Conference set for 5/11/2015 at 01:00 PM in Helena, MT before Judge Sam E Haddon. (ELL, ) Modified on 5/5/2015 to update reporter info (DED, ). Modified on 5/6/2015 to remove reporter info as this is a telephone status conference and reporter not required (DED, ). (Entered: 05/04/2015)
62 NOTICE by Mike Batista, Leroy Kirkegaard, Unnamed Defendant No. 1, Unnamed Defendant No. 2 re 59 Order Setting Telephonic Status Conference (Leonard, Thomas) (Entered: 05/06/2015)
63 NOTICE by John Glueckert, Richard Opper of Phone numbers for 5−11−2015 status conference (Kohman, Paulette) (Entered: 05/06/2015)
64 NOTICE by Disability Rights Montana of Contact Information for Telephonic Status Conference on May 11, 2015 (Simmons, Jeffrey) (Entered: 05/06/2015)
65 TRANSCRIPT DESIGNATION ORDER FORM by Mike Batista, Leroy Kirkegaard, Unnamed Defendant No. 1, Unnamed Defendant No. 2 for proceedings held on 04/24/2015 before Judge Hon. Sam E. Haddon. Court reporter Gena Eales. Transcript due by 6/15/2015. (Leonard, Thomas) (Entered: 05/08/2015)
66 AMENDED COMPLAINT Second Amended Complaint against Mike Batista, Leroy Kirkegaard, filed by Disability Rights Montana. (Simmons, Jeffrey) (Entered: 05/08/2015)
67 AMENDED COMPLAINT Second Amended Complaint against John Glueckert, Richard Opper, filed by Disability Rights Montana. (Simmons, Jeffrey) (Entered: 05/08/2015)
68 Brief/Memorandum in Support re 66 Amended Complaint, 67 Amended Complaint filed by Disability Rights Montana. (Simmons, Jeffrey) (Entered: 05/08/2015)
MINUTE ENTRYMinute Entry for proceedings held before Judge Sam E Haddon: Status Conference held on 5/11/2015. (LJF, Lisa) (Entered: 05/19/2015)
69 JOINT DISCOVERY PLAN by Disability Rights Montana. (Simmons, Jeffrey) (Entered: 05/19/2015)
70 Order Setting: motions to dismiss complaint filed by 6/5/2015, response filed by 7/3/2015, and reply filed by 7/24/15. All remaining deadlines established in Court's Scheduling Order of 9/16/14 are vacated. All other pretrial deadlines will be set by further order of the court. Signed by Judge Sam E Haddon on 5/20/2015. (DED, ) (Entered: 05/20/2015)
71 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Paulette Kohman appearing for Defendants John Glueckert, Richard Opper (Kohman, Paulette) Modified on 8/19/2015 b>Martin−Lake Asso to report for hearing on 9/3/15 (DED, ). Modified on 8/26/2015 Martin−Lake to report for hearing (DED, ). (Entered: 06/05/2015)
72 Brief/Memorandum in Support re 71 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by John Glueckert, Richard Opper. (Attachments: # 1 Exhibit Exh A DPHHS webpage re Opper, # 2 Exhibit Exh B DPHHS News Release re Glueckert) (Kohman, Paulette) (Entered: 06/05/2015)

Case: 2:14-cv-25 As of: 10/07/2019 08:28 PM MDT 10 of 11

06/24/2015 06/25/2015 06/25/2015 07/03/2015 07/16/2015 07/24/2015 08/19/2015 09/02/2015 09/02/2015 09/02/2015 09/03/2015 09/03/2015
09/03/2015 09/03/2015

73 MOTION Mathew D. Lee to Appear Pro Hac Vice ( Filing fee $ 250 receipt number MTX900008509.) Jon E. Ellingson appearing for Plaintiff Disability Rights Montana (Attachments: # 1 Affidavit, # 2 Text of Proposed Order) (Ellingson, Jon) (Entered: 06/24/2015)
74 ORDER granting 73 Motion to Appear Pro Hac Vice for Attorney Matthew D. Lee for Disability Rights Montana. Signed by Judge Sam E Haddon on 6/25/2015. (ELL, ) (Entered: 06/25/2015)
75 Letter to atty Lee re Registration to ECF with copy of Order granting PHV. (ELL, ) (Entered: 06/25/2015)
76 RESPONSE to Motion re 71 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Disability Rights Montana. (Simmons, Jeffrey) (Entered: 07/03/2015)
77 NOTICE of Acknowledgment of Pro Hac Vice Order by Disability Rights Montana (Lee, Matthew) (Entered: 07/16/2015)
78 REPLY to Response to Motion re 71 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by John Glueckert, Richard Opper. (Kohman, Paulette) (Entered: 07/24/2015)
79 ORDER Setting Hearing on Motion 71 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM : Contract Court Reporter is Needed, Motion Hearing set for 9/3/2015 at 10:00 AM in Helena, MT before Judge Sam E Haddon. Signed by Judge Sam E Haddon on 8/19/2015. (ELL, ) (Entered: 08/19/2015)
80 MOTION leave to appear by phone at hearing on motion to dismiss Jeffrey A. Simmons appearing for Plaintiff Disability Rights Montana (Simmons, Jeffrey) (Entered: 09/02/2015)
81 Emergency MOTION for Leave to Appear by telephone at hearing on motion to dismiss Jeffrey A. Simmons appearing for Plaintiff Disability Rights Montana (Simmons, Jeffrey) (Entered: 09/02/2015)
82 AFFIDAVIT in Support re 81 Emergency MOTION for Leave to Appear by telephone at hearing on motion to dismiss filed by Disability Rights Montana. (Simmons, Jeffrey) (Entered: 09/02/2015)
83 ORDER granting 81 Motion for Leave to Appear Telephonic at 9/3/15 hearing. Signed by Judge Sam E Haddon on 9/3/2015. Phone call placed to Mr. Simmons advising of order. (DED, ) (Entered: 09/03/2015)
84 MINUTE ENTRYMinute Entry for proceedings held before Judge Sam E Haddon: Motion Hearing held on 9/3/2015 re 71 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by John Glueckert, Richard Opper. Mr. Ellingson present in courtroom and Mr. Simmons present telephonically on behalf of Plainitff. Paulette Kohman present for Defendants in CV−14−25 and Thomas Leonard present for Defendants in CV−14−25 and CV−15−22. Court will approach motions separately and hear arguments in CV−14−25 and then CV−15−22. Court hears from Ms. Kohman, Mr. Ellingson responds, and Ms. Kohman replies; Mr. Ellingson presents a sur−reply. Court finds facts pleaded are sufficient to allow matter to proceed, and denies Defendants 12(b)(6) Motion to be Dismiss. Court hears argument regarding CV−15−22 matter. Mr. Leonard heard on behalf of Defendants, Mr. Ellingson responds, and Mr. Leonard replies. Court presents its findings and grants Defendants Rule 12(b)(6) Motion to Dismiss Hearing commenced at 10:00 am and concluded at 10:39 am. (Court Reporter Julie Lake.) (Law Clerk: Carolyn Sime), (Hearing held in Helena) (DED, ) (Entered: 09/03/2015)
85 ORDER denying 71 Motion to Dismiss for Failure to State a Claim Signed by Judge Sam E Haddon on 9/3/2015. (ELL, ) (Entered: 09/03/2015)
86 PRELIMINARY PRETRIAL CONFERENCE ORDERPreliminary Pretrial Statement due by 9/25/2015. Joint Discovery Plan due by 9/25/2015. Pretrial Conference set for 10/6/2015 at 10:00 AM in Helena, MT before Judge Sam E Haddon. Signed by Judge Sam E Haddon on 9/3/2015. (ELL, ) (Entered: 09/03/2015)

Case: 2:14-cv-25 As of: 10/07/2019 08:28 PM MDT 11 of 11

09/04/2015 09/08/2015
09/21/2015 09/21/2015 09/21/2015
09/21/2015 09/22/2015 09/25/2015 09/25/2015 09/25/2015 09/25/2015 10/06/2015 10/06/2015 10/08/2015
10/09/2015 03/31/2016

87 TRANSCRIPT DESIGNATION ORDER FORM by John Glueckert, Richard Opper for proceedings held on 09−03−2015 before Judge Haddon. Court reporter Julie Lake. Transcript due by 9/14/2015. (Kohman, Paulette) (Entered: 09/04/2015)
88 TRANSCRIPT of Motion to Dismiss held on September 3, 2015, before Judge Haddon. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER, the Clerks Office or the court reporter NOTICE: A NOTICE OF INTENT TO REQUEST REDACTION MUST BE FILED WITHIN 14 DAYS OF THIS FILING. Contact Court Reporter Julie Lake, 406−543−6477. Transcript Redaction Procedures . Redaction Request due 9/29/2015. Redacted Transcript Deadline set for 10/9/2015. Release of Transcript Restriction set for 12/7/2015. (ELL, ) (Entered: 09/08/2015)
89 MOTION to Amend/Correct 72 Brief/Memorandum in Support, Paulette Kohman appearing for Defendants John Glueckert, Richard Opper (Kohman, Paulette) (Entered: 09/21/2015)
90 Brief/Memorandum in Support re 89 MOTION to Amend/Correct 72 Brief/Memorandum in Support, filed by John Glueckert, Richard Opper. (Kohman, Paulette) (Entered: 09/21/2015)
91 Joint MOTION for Extension of Time to File Extension of Preliminary Conference Date and Deadlines for Joint Discovery Plan, Preliminary Pretrial Statements, and Defendants' Answer Jeffrey A. Simmons appearing for Plaintiff Disability Rights Montana (Attachments: # 1 Text of Proposed Order Proposed Order) (Simmons, Jeffrey) (Entered: 09/21/2015)
92 AFFIDAVIT in Support re 91 Joint MOTION for Extension of Time to File Extension of Preliminary Conference Date and Deadlines for Joint Discovery Plan, Preliminary Pretrial Statements, and Defendants' Answer Declaration of Jon Ellingson filed by Disability Rights Montana. (Simmons, Jeffrey) (Entered: 09/21/2015)
93 ORDER denying 89 Motion to Amend/Correct; denying 91 Motion for Extension of Time to File (SEE ORDER FOR COMPLETE DETAILS) Signed by Judge Sam E Haddon on 9/22/2015. (ELL, ) (Entered: 09/22/2015)
94 STATEMENT OF STIPULATED FACTS by Disability Rights Montana. (Simmons, Jeffrey) (Entered: 09/25/2015)
95 PRELIMINARY PRETRIAL STATEMENT by Disability Rights Montana. (Simmons, Jeffrey) (Entered: 09/25/2015)
96 JOINT DISCOVERY PLAN by Disability Rights Montana. (Simmons, Jeffrey) (Entered: 09/25/2015)
97 PRELIMINARY PRETRIAL STATEMENT by John Glueckert, Richard Opper. (Attachments: # 1 Exhibit MSH Policy FP−01, # 2 Exhibit MOU between DPHHS and MT DOC) (Kohman, Paulette) (Entered: 09/25/2015)
98 NOTICE of Appearance by Michael Alan Kauffman on behalf of John Glueckert, Richard Opper (Kauffman, Michael) (Entered: 10/06/2015)
MINUTE ENTRYMinute Entry for proceedings held before Judge Sam E Haddon: Initial Pretrial Conference held on 10/6/2015. (LJF, Lisa) (Entered: 10/27/2015)
99 SCHEDULING ORDER: Telephone Status Conference set for 3/7/2017 at 11:00 AM in Helena, MT before Judge Sam E Haddon. Amended Pleadings due by 3/4/2016. Discovery due by 11/4/2015. Joinder of Parties due by 3/4/2016. Motions due by 2/10/2017. Signed by Judge Sam E Haddon on 10/8/2015. (ELL, ) (Entered: 10/08/2015)
100 ANSWER to 67 Amended Complaint by John Glueckert, Richard Opper. (Kauffman, Michael) (Entered: 10/09/2015)
101 STIPULATION of Dismissal Without Prejudice by Disability Rights Montana. (Simmons, Jeffrey) (Entered: 03/31/2016)