Case 7:16-cv-05527-NSR Document 1 Filed 07/12/16 Page 1 of 34

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

MICHELET CHARLES and CAROL SMALL,
Plaintiffs,
v.
COUNTY OF ORANGE, NEW YORK; COUNTY OF ORANGE SHERIFF'S DEPARTMENT; ORANGE COUNTY DEPARTMENT OF MENTAL HEALTH; NICOLE KAYE, Clinic Director, Orange County Correctional Facility, in her individual capacity; CARMEN ELIZONDO, former Clinic Director, Orange County Correctional Facility, in her individual capacity,
Defendants.

Case No. -16--cv--55-27
COMPLAINT AND JURY DEMAND

PRELIMINARY STATEMENT
1. Plaintiffs Michelet Charles and Carol Small are two individuals who suffer from serious, ongoing mental illnesses. They bring this civil rights action to challenge the dangerous, deliberately indifferent, and unconstitutional acts of Orange County and its employees in failing to provide any discharge planning to Plaintiffs when they were released from civil immigration detention at the Orange County Correctional Facility ("Orange County Detention Center"). Discharge planning is an essential part of mental healthcare in institutional settings and consists of a plan created prior to release to ensure that upon discharge from a provider's care, people with mental illnesses do not relapse, and face hospitalization, increased risk of suicide, homelessness, and other related instability. Defendants are constitutionally obliged to provide Plaintiffs with adequate medical care while they are confined to immigration detention.

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Although Defendants provided Plaintiffs with mental healthcare during their detention, they failed to provide fully adequate care by neglecting to create and implement a discharge plan before Plaintiffs were released.
2. During the many months that Defendants held Mr. Charles and Ms. Small in civil immigration detention in 2014 and 2015, they each received regular mental healthcare in the facility. Plaintiffs regularly met with psychiatrists. Plaintiffs received prescription medication to treat their illnesses. As a result of this course of treatment, before being released from civil immigration detention, Plaintiffs were stable and regularly taking appropriate medication. However, when Defendants discharged Mr. Charles and Ms. Small, they abruptly abandoned their care. Defendants made no attempt to plan for Plaintiffs' mental healthcare and medications to continue for even a few days until they could access new care. Instead, Defendants dlimped Plaintiffs on the street, with no means to access mental healthcare. Defendants were aware that Plaintiffs' medications were for serious mental illnesses, and that the medication could not be stopped abruptly without serious consequences, yet Defendants failed to provide Plaintiffs with interim medication, referrals for ongoing psychiatric care, or any of the other basic elements of discharge planning upon their release. Defendants were aware that, without mental healthcare, Plaintiffs were at substantial risk of relapse, hospitalization, or worse. Yet, Defendants did nothing.
3. PlaintiffMichelet Charles is a United States lawful permanent resident who is diagnosed with bipolar and schizoaffective disorders. For years, Mr. Charles managed his illnesses through consistent mental healthcare. He maintained a steady job, raised a family, and otherwise contributed to his community. In 2014, Mr. Charles was confined in civil immigration detention at Orange County Detention Center. Orange County held Mr. Charles for almost a
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year, during which it provided him with coordinated psychiatric care and psychotropic medication. On July 22, 2015, Mr. Charles was brought from Orange County to New York City, for an appearance at the Varick Street Immigration Court. Following success at his immigration hearing, he was released onto the streets of Lower Manhattan with his identification and nothing more. Defendants failed to provide Mr. Charles with any plan for his continued mental healthcare, a single referral to a mental healthcare provider, or any interim medication. Mr. Charles even returned to Orange County Detention Center the following day on the advice of his Deportation Officer, yet Defendants refused to provide him with an interim supply of his medication. Without a plan or the resources necessary to obtain care, as a result of Defendant's unconstitutional conduct, Mr. Charles' mental health quickly spiraled downward. After two weeks without treatment, Mr. Charles suffered total psychiatric decompensation. He was admitted-incoherent, hallucinating, and suicidal-to a hospital's psychiatric unit where he remained under inpatient care for almost two months.
4. Whether released from Varick Street Immigration Court in Manhattan, or directly from Orange County Detention Center in Goshen, New York, Defendants still failed to provide discharge planning.
5. Plaintiff Carol Small is a United States lawful permanent resident who was diagnosed with paranoid schizophrenia during her time in immigration detention. Prior to detention, Ms. Small had lived for years in the Bronx working at a hair salon. Ms. Small was confined in civil immigration detention at Orange County Detention Center for eight months, beginning in 2014. During that time, she experienced paranoia and extreme symptoms of mental illness, until she was diagnosed and provided with treatment in the form of coordinated psychiatric care and psychotropic medication. On January 19, 2016, Ms. Small was released
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from Orange County Detention Center without medication or any other form of discharge

planning to manage her diagnosed paranoid schizophrenia. Ms. Small was released from Orange

County Detention Center at approximately 6:30 at night with only eighty dollars in cash. Ms.

Small found her own way to a train station, and, from there, to Penn Station in Manhattan. She

did not arrive in Manhattan until approximately 1:00 in the morning and spent the night in a

diner. Ms. Small's mental healthcare only resumed when, days after her release, she checked

herself into a hospital emergency room.

6.

As people confined in civil immigration detention facilities, Plaintiffs were

forced to rely on Defendants to provide adequate medical care. By their acts, Defendants

exhibited deliberate indifference to Plaintiffs' serious medical needs, and created a substantial

risk that Plaintiffs would relapse absent medicine and treatment. Defendants' conduct fails to

comply with minimally acceptable constitutional standards of institutional mental healthcare.

Orange County maintained a persistent widespread custom, and unofficial policy, that deprived

people with mental illness of this critical treatment. This is the opposite of how discharge from

an institutional setting for people with serious mental illnesses should work. Indeed, almost two

decades ago, the jail at Rikers Island began to end its similar practice of discharging people with

mental illness without any psychiatric medication or treatment referrals. Further, widely

accepted standards of medical care establish that discharge planning is an essential component of

adequate institutional mental healthcare. Defendants themselves knew that discharge planning is

an essential piece of adequate mental healthcare: the most recent guidance from the federal

government agency that contracts with Orange County to confine civil immigrant detainees, such

as Plaintiffs-the Immigration and Customs Enforcement Agency ("ICE")-itself requires

discharge planning. Despite these high stakes, and the consensus that adequate mental

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healthcare must include discharge planning, Defendants failed to provide it to Plaintiffs and caused Plaintiffs to experience extreme emotional distress and harm.
7. Defendants' failure to provide discharge planning constitutes deliberate indifference to Plaintiffs' serious medical needs in violation of the Fourteenth Amendment of the United States Constitution. Plaintiffs seek compensatory and punitive damages against the Defendants for violations of their rights.
PARTIES 8. PlaintiffMichelet Charles is a lawful permanent resident of the United States, who was a resident of New York State before he was confined at Orange County Detention Center. He currently resides in Riverdale, Georgia. He was detained at Orange County Detention Center on July 25, 2014, and was released on July 22, 2015. 9. Plaintiff Carol Small is a lawful permanent resident of the United States who resides in the Bronx, New York. While she was confined at Orange County Detention Center, Ms. Small was known as Annemarie Soloman. She was detained at Orange County Detention Center on May 14,2015, and was released on January 19,2016. 10. Defendant County of Orange is the municipality that oversees Orange County Detention Center, where Plaintiffs Charles and Small were held. Orange County operates Orange County Detention Center, and through its senior officials, promulgates and implements policies with respect to the provision of mental healthcare for people confined to Orange County Detention Center. In addition, upon information and belief, senior officials within the County Defendants' organizations are aware of and tolerate the practice of failing to provide discharge planning by subordinate employees in Orange County Detention Center, including those that
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may be inconsistent with formal policy. These practices, because they are widespread, longstanding and embedded, constitute unwritten and unofficial Orange County policies or customs.
11. Defendant Orange County Sheriffs Office is the division of the County of Orange that operates Orange County Detention Center. The Orange County Sherriffs Office is the signatory to an Inter-Governmental Services Agreement between ICE and Orange County, pursuant to which, people in civil immigration detention are confined at Orange County Detention Center.
12. Defendant Orange County Department of Mental Health is a department of the County of Orange which, pursuant to the Inter-Governmental Services Agreement between ICE and Orange County, is responsible for providing mental health services to people confined in Orange County Detention Center.
13. Defendant Nicole Kaye is the Clinical Director at the Orange County Correctional Facility. Upon information and belief, at the time of Mr. Charles' release from Orange County Detention Center and during the time Ms. Small was confined to Orange County Detention Center, she was an employee of the Orange County Department of Mental Health and responsible for provision of appropriate mental healthcare to people confined in civil immigration detention at Orange County Detention Center, including Plaintiff Charles and Plaintiff Small.
14. Defendant Carmen Elizondo was the Clinical Director at the Orange County Correctional Facility. Upon information and belief, during the time Mr. Charles was confined at Orange County Detention Center, she was an employee of the Orange County Department of Mental Health and responsible for provision of appropriate mental healthcare to people confined
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in civil immigration detention at Orange County Detention Center, including Plaintiff Charles and Plaintiff Small.
15. Defendants County of Orange, Orange County Sheriffs Office, and the Orange County Department of Mental Health are collectively known as "County Defendants," and Defendants Kaye and Elizondo are collectively known as "Individual Defendants."
JURISDICTION AND VENUE 16. This action is brought under the Fourteenth Amendment of the United States Constitution and under 42 U.S.C. § 1983 to redress Defendants' deprivation of Plaintiffs' constitutional rights. 17. Jurisdiction is conferred upon this court by 28 U.S.C. § 1331, which provides for jurisdiction in the United States district courts of civil actions arising under the Constitution, laws, or treaties of the United States; and 28 U.S.C. § 1343(a)(3) and (4), which provide for jurisdiction in the United States district courts of civil actions to redress deprivation of rights secured by the Constitution and States of the United States. 18. Venue lies properly with this district pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events giving rise to the claims in this Complaint occurred in this district.
FACTS 19. Pursuant to an Inter-Governmental Services Agreement between the United States Department of Homeland Security, ICE, and Orange County, ICE and Orange County confine hundreds of people at Orange County Detention Center every year in civil immigration detention. Operating under the Department of Homeland Security, ICE is the federal law enforcement agency charged with the detention and removal of immigrants. These individuals, including Plaintiffs, are subject to jail-like conditions while they await the outcome of their civil
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immigration removal and deportation cases. They experience complete restriction of their freedom while confined. On information and belief, the majority of people who are confined to civil immigration detention are lawful permanent residents or visa holders who have criminal convictions for crimes that the federal government now considers, either in the first instance or after a series of convictions, as a cause for removal. People who are confined to immigration detention may have completed a criminal sentence by the time they are confined to immigration detention, or may not have been required to serve any sentence at all.
20. Pursuant to the agreement between ICE and Orange County, people confined in civil immigration detention are held in custody to assure their presence throughout the administrative hearing process and for court appearances related to their removal proceedings. People confined to civil immigration detention are not charged with criminal violations. Nevertheless, people confined to civil immigration detention are housed in similar conditions to people who are criminally incarcerated.
21. During the period of Plaintiffs' detention, the County Defendants provided discharge planning for people with mental illness who were criminally incarcerated in Orange County Detention Center, but housed in a separate wing from those, such as Plaintiffs, who were subject to civil immigration detention. Despite the demonstrated ability of County Defendants to provide this critical service to individuals incarcerated or detained in Orange County Detention Center, the County Defendants maintained a persistent, widespread custom and unofficial policy of failing to do so for people confined in civil immigration detention, such as Plaintiffs in this action.
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I. Plaintiff Michelet Charles A. Michelet Charles' Life before Immigration Detention 22. PlaintiffMichelet Charles is a 55-year-old lawful permanent resident who has
lived in the United States for 34 years. 23. In or around 1984, when Mr. Charles was 25 years old, he was diagnosed with
schizoaffective and bipolar disorders. Unless treated, these illnesses cause Mr. Charles to suffer from psychotic symptoms such as hallucinations and delusions as well as periods of mania and depression.
24. Before he was detained at Orange County Detention Center, Mr. Charles received psychiatric care for his mental illnesses, including prescriptions for Risperdal and Depakote, taken daily, from the outpatient facility, Pederson-Krag Center of Long Island.
25. For 21 years, Mr. Charles worked in the restaurant industry and supported his family while managing his mental illnesses through psychiatric care including the prescription medication regimen. Mr. Charles has four adult daughters and maintains a strong relationship with them.
B. Defendants' Custody and Medical Treatment for Mr. Charles 26. On or about July 25, 2014, ICE officials arrested Mr. Charles and confined him at Orange County Detention Center pending the outcome of his removal proceeding. He was confined as a civil immigrant detainee for 363 days, from July 25, 2014 until July 22, 2015. 27. When Mr. Charles entered Orange County Detention Center, medical personnel at the facility medically evaluated him, and diagnosed him with bipolar disorder with psychotic features.
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28. During the year he was confined to Orange County Detention Center, Defendants, as required by the Inter-Governmental Services Agreement, provided him with medically necessary treatment and prescription medicine for his mental illnesses.
29. His treatment included meeting with a psychiatrist to monitor his condition every three weeks at Orange County Detention Center.
30. Medical employees of Defendant Orange County Department ofMental Health, overseen by Defendants Kaye and Elizondo, prescribed Risperdal and Zyprexa to Mr. Charles and administered them to him on a daily basis. According to Mr. Charles' medical records, Defendant Elizondo signed Mr. Charles' treatment plan for the time he was confined to civil immigration detention.
31. Mr. Charles' daily prescription regimen is necessary to manage his mental illnesses.
32. Medical records state that Mr. Charles reported to his medical providers that his medical regimen was "therapeutic," meaning it alleviated his symptoms. The medical records also note that while at Orange County Detention Center, Mr. Charles was psychiatrically stable. He remained psychiatrically stable on the date of his release.
C. Defendants Failed to Provide Discharge Planning to Mr. Charles 33. Mr. Charles' immigration merits hearing was scheduled to occur on July 22, 2015 at Varick Street Immigration Court at 201 Varick Street, New York, NY 10014 ("Varick Street Immigration Court"). 34. Upon information and belief, the County Defendants were aware that if Mr. Charles prevailed at his hearing, he could be released from custody that day at Varick Street Immigration Court.
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35. Prior to July 22, 2015, Defendants did not provide discharge planning to Mr. Charles, including but not limited to providing him with information about his prescriptions. Additionally, Defendants did not discuss any other details of Mr. Charles' release with him or his immigration attorney.
36. On July 22, 2015, Mr. Charles was transported to Varick Street Immigration Court for his immigration hearing.
37. On that date, Defendants did not provide Mr. Charles or his immigration attorney with a written discharge plan, a list of his medications, a supply of medication, a list of outside referrals, a list of providers for continuing care, his belongings (clothing), money he had in commissary, or any other information or assistance with respect to his known medical condition.
38. At his immigration hearing on July 22, 2015, Mr. Charles obtained immigration relief and was consequently released from civil immigration detention.
39. After the hearing, Mr. Charles' immigration attorney discussed Mr. Charles' release with ICE Deportation Officer Rodriguez.
40. Deportation Officer Rodriguez stated that ICE did not have a supply of medication for Mr. Charles, and that he should return to Orange County Detention Center, over 65 miles away, if he needed to obtain a supply ofhis prescription medication.
41. Prior to his release on July 22, 2015, Defendants did not provide Mr. Charles with an interim supply of the medication that Orange County Detention Center medical providers had prescribed to him for the past year. He was released without any information or documentation of what he should or could do next to obtain treatment for his mental illnesses, and without his belongings, or the money he had in the commissary.
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42. Defendants failed to provide Mr. Charles with a written prescription for the medication that the medical employees of Defendant Orange County Department of Mental Health had prescribed to him during the period of his civil detention.
43. Defendants failed to contact any pharmacy to arrange for Mr. Charles to obtain a prescription for the medications that he was prescribed by medical employees of Defendant Orange County Department of Mental Health in the months before his release from civil detention.
D. Defendants Refuse to Provide Mr. Charles with a Post-Release Supply of Medication
44. On July 23,2015, Mr. Charles and his daughter, Michelle Charles, travelled over two hours from her home in Long Island, New York to Orange County Detention Center to try and obtain Mr. Charles' prescription psychiatric medication, his belongings, and his money from commissary.
45. When Michelle Charles asked an employee at the front desk at Orange County Detention Center for her father's medication, the employee of Orange County Detention Center refused to provide it. The Orange County employee stated that the person who had transported Mr. Charles to Varick Street Immigration Court was responsible for providing a continuing supply of medication.
46. The Orange County employee also stated that as a matter of institutional policy, after a person is released from its custody, Orange County Detention Center can no longer provide medication.
47. After Mr. Charles and his daughter were unable to obtain a supply of medication from their in-person visit to Orange County Detention Center, Mr. Charles' immigration attorney
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contacted Deportation Officer Rodriguez and requested that a supply be provided to Mr. Charles. Deportation Officer Rodriguez ignored her inquiry.
48. According to Mr. Charles' medical file from Orange County Detention Center, on July 23, 2015, the day after Mr. Charles' release, a Clinical Social Worker signed a document entitled "Continuing Care Plan/Discharge Summary" ("Discharge Summary").
49. Defendant Kaye co-signed the Discharge Summary on August 3, 2015. 50. The Discharge Summary explicitly anticipates that Mr. Charles would have projected financial, mental health, social support, and housing needs. The Discharge Summary states that "Medication," "Psychiatric Treatment," and "Substance Abuse Treatment," would be among Mr. Charles' "Projected Mental Health Needs." However, Defendant Kaye and her team provided no "discharge" services to Mr. Charles consistent with this document. 51. Defendant Kaye and her team failed to ensure that a copy of this Discharge Summary document was given to Mr. Charles or his immigration attorney. 52. Defendant Kaye and her team failed to arrange for the provision of any medication to Plaintiff at the time of his release or thereafter.
E. Mr. Charles Decompensates and Relapses Because Defendants Failed to Provide Discharge Planning
53. After his release without an interim supply of his necessary medications, or a discharge plan to coordinate continued care, Mr. Charles soon began psychologically decompensating. For example, he exhibited bizarre behavior, and was disorganized and mumbled when he spoke. His family reports that he was manic, anxious, and paranoid.
54. Because he was detained on the date that he was required to renew his Medicaid benefits, Mr. Charles' Medicaid was terminated and he was unable to immediately access his health insurance upon release. Reconnection requires a new application, in addition to identity
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and immigration status confirmation. Defendants made no arrangements or plan to re-connect Mr. Charles to his Medicaid benefits.
55. By August 4, 2015, Mr. Charles was experiencing extreme symptoms of psychosis, whereupon his thoughts and emotions were so impaired that he lost contact with reality.
56. On August 4, 2015, Mr. Charles' family called 911 for emergency medical assistance. When the police responded, they transported him to the Emergency Room at Good Samaritan Hospital in West Islip, New York.
57. On August 5, 2015, Mr. Charles was hospitalized in an inpatient psychiatric unit of North Shore LIJ South Oaks Hospital ("South Oaks Hospital"), in Amityville, New York.
58. Medical records upon admission state that he had worsening aggressive, disorganized, and bizarre behavior, and was preoccupied with paranoia.
59. Mr. Charles spent over two months at South Oaks Hospital in order to stabilize his condition. During that time, he was separated from his family and community while he was undergoing intense medical treatment.
60. Medical records indicate that only after 56 days in South Oaks Hospital did Mr. Charles appear to rebound to his baseline, meaning a return to a more psychiatrically stabilized state.
61. Mr. Charles was discharged from South Oaks Hospital on October 9, 2015. 62. Before, during, and after his hospitalization until the present, Mr. Charles suffered and continues to suffer extreme emotional distress because Defendants were deliberately indifferent to his serious medical needs, including their duty to provide him with discharge
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planning prior to and at the time of his release for the period of time reasonably necessary for him to obtain treatment. II. Plaintiff Carol Small
A. Defendants' Custody and Medical Treatment for Plaintiff Carol Small 63 . Plaintiff Carol Small is a 45-year-old lawful permanent resident of the United States who has lived in the United States for 13 years. 64. Before she was detained, Ms. Small worked as a hairdresser in the Bronx, New York, lived on her own, and supported herself. 65. The County Defendants confined Ms. Small in civil immigration detention at Orange County Detention Center for approximately seven months, from May 14, 2015 until January 19, 2016. 66. Around June 2015, while in detention, Ms. Small began experiencing symptoms of mental illness, including visual and auditory hallucinations. 67. Ms. Small became extremely paranoid and delusional. She believed she was being monitored by the government through a chip implanted in her tooth, that there was a government conspiracy to poison her, and that the poison was coming through the vents. She made complaints to the ICE hotline and wrote letters to the sheriff and deportation officers with these assertions. In late June 2015, a psychiatrist at Orange County Detention Center evaluated Ms. Small and diagnosed her with paranoid schizophrenia. 68. On or about September 8, 2015, upon information and belief, the County Defendants transferred Ms. Small to the inpatient psychiatric ward at Kings County Hospital for intensive treatment for her mental illness.
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69. On or about October 15, 2015, after stabilizing, Ms. Small was transferred back from Kings County Hospital's inpatient psychiatric ward to Orange County Detention Center.
70. Upon her return to Orange County Detention Center, medical employees of the Orange County Department of Mental Health, overseen by Defendant Kaye, provided Ms. Small with medically necessary treatment and continued to prescribe and administer her prescription medication.
71. Defendant Kaye signed Ms. Small's intervention care plan, which set forth her treatment while confined to Orange County Detention Center.
72. After her hospitalization at Kings County Hospital, Ms. Small saw a psychiatrist about once every four weeks at Orange County Detention Center.
73. In the time directly before her release on January 19, 2016, Ms. Small's prescription medication regimen consisted of Trazodone, Benztropine, and Olanzapine, which she took on a daily basis.
74. While on the above-referenced set of medications, Ms. Small remained psychiatrically stable.
75. Ms. Small's prescription regimen is necessary to manage her mental illnesses. B. Defendants Failed to Provide Discharge Planning to Ms. Small 76. On January 11, 2016, an Immigration Judge granted Ms. Small immigration relief and ordered her release from civil immigration detention based on a stipulation between the ICE prosecutor and Ms. Small's immigration attorney. The stipulation ordered her release directly from Orange County Detention Center. 77. On January 19, 2016, at around 6:30 in the evening, in below-freezing temperatures, County Defendants released Ms. Small from Orange County Detention Center,
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miles from where she lived prior to being confined in civil immigration detention. Upon her release, Orange County Detention Center gave Ms. Small eighty dollars in cash.
78. Before her release on January 19, 2016, Defendants did not provide Ms. Small a written discharge plan, a list of her medications, or a list of outside referrals or providers for continuing care.
79. Defendants failed to engage in any discharge planning with Ms. Small although she remained confined at Orange County Detention Center for eight days when her pending release was a certainty, namely between January 11 , 2016 and January 19, 2016.
80. The Orange County Defendants released Ms. Small from Orange County Detention Center without any information or documentation of what she should or could do next to obtain treatment for her mental illness.
81. Defendants failed to provide Ms. Small with an interim supply of the medication that employees of Defendant Orange County Department of Mental Health, overseen by Defendant Kaye, had prescribed to her during the last months of her confinement.
82. Defendants failed to provide Ms. Small with a written prescription for the medication that the medical employees of Defendant Orange County Department of Mental Health, overseen by Defendant Kaye, had prescribed to and provided for Ms. Small during the last months of her detention.
83. Defendants failed to call in a prescription to any pharmacy for the medication that medical employees of Defendant Orange County Department of Mental Health, overseen by Defendant Kaye, had prescribed to and provided for Ms. Small during the last months of her detention.
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84. Defendants did not provide Ms. Small with information about the names or quantities of the prescriptions she was prescribed during her detention.
C. Ms. Small's Efforts to Seek Medication on Her Own After Release 85. With the $80 in cash that Orange County Detention Center provided to Ms. Small, she took two trains to New York Penn Station, arriving at approximately 1:00 a.m. Thereafterwith no prior arrangements made-Ms. Small had to look for a place to stay the night. 86. Ms. Small spent the first night after her release in a diner before returning to the shop in the Bronx where she had worked prior to detention the next morning at around 9:00 a.m. 87. After a few days of staying with family members, a social worker from the organization that provided Ms. Small with immigration representation arranged for Ms. Small to live in a shelter. 88. While Ms. Small was struggling to re-establish her life after release from civil immigration detention, she was extremely distressed and worried for her own health, and the possibility of relapsing without the medication she had been taking to treat her mental illness. Given her previous symptoms of delusions and paranoia, the risk of relapse frightened her. 89. On January 21,2016, Ms. Small went to the Emergency Room at North Central Bronx Hospital in an effort to receive a prescription for her medication. 90. Because Ms. Small had been hospitalized at North Central Bronx Hospital before her detention, and had written down her own list of the medications she was taking while detained, the hospital prescribed her with the same medications without doing a full psychological evaluation, thus shortening the time until she could resume treatment for her illness.
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91. Before, during, and after her release until the present, Ms. Small suffered and continues to suffer extreme emotional distress because Defendants were deliberately indifferent to her serious medical needs, including their duty to provide her with discharge planning prior to, and at the time of, her release for the period of time reasonably necessary for her to obtain treatment. III. The Standard of Ca.n for People in Civil Immigration Detention Includes Discharge
Planning
92. A broad array of professional mental health and medical associations agree that the standard of reasonable and adequate medical care for people incarcerated or detained includes discharge planning, and that adequate discharge planning includes providing a supply of interim medication, a summary of medical records (including admission diagnosis, discharge diagnosis, all diagnostic test results, list of medications prescribed, summary of care provided, summary of detainee's response to treatment, medical complications encountered, and any outside healthcare referrals), and a continuity of care plan including referrals to communitybased providers.
A. The American Psychiatric Association Recommends Discharge Planning 93. The American Psychiatric Association is the primary professional association of psychiatrists in the United States and the largest psychiatric organization in the world. 94. The American Psychiatric Association is responsible for publishing the Diagnostic and Statistical Manual ofMental Disorders ("DSM"), the leading authority of the codification of psychiatric conditions that is used by clinicians worldwide to diagnose mental illness. Courts are regularly guided by the American Psychiatric Association's conclusions on mental health, as published in the DSM, and look to the American Psychiatric Association to
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establish definitions and standards as they apply to mental health. See, e.g., Farmer v. Brennan, 511 U.S. 825, 829 (1994); Hall v. Florida, 134 S. Ct. 1986, 1990 (2014).
95. The American Psychiatric Association also publishes Psychiatric Services in Correctional Facilities, which includes guidelines for mental healthcare in correctional facilities.
96. In that publication, the American Psychiatric Association recognizes that "[t]imely and effective discharge planning is essential to continuity of care and an integral part of adequate mental health treatment." According to the American Psychiatric Association, discharge planning includes "a sufficient supply of current psychotropic medications to last until the patient can be seen by a community healthcare provider; scheduling appointments with mental health agencies for patients with serious mental illness, especially those receiving psychotropic medication; and arranging with local mental health agencies to share records, as appropriate, and to have prescriptions renewed or evaluated for renewal."
B. The American Psychological Association Requires That Psychiatrists Conduct Discharge Planning
97. The American Psychological Association is the largest scientific and professional association of psychologists in the United States.
98. The American Psychological Association publishes Ethical Principles of Psychologists and Code ofConduct, which consists of guidance as well as enforceable standards of professional conduct for psychologists.
99. Ethical Principles ofPsychologists and Code ofConduct includes as part of its enforceable standards of conduct, a requirement that psychologists "make reasonable efforts to plan for facilitating services in the event that psychological services are interrupted ... by the [patient's] relocation ... [and to] make reasonable efforts to provide for orderly and appropriate
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resolution of responsibility for ... patient care in the event the [psychologist-patient] relationship ends, with paramount consideration given to the welfare of the ... patient."
C. The American Association of Community Psychiatrists Recommends Discharge Planning
100. The American Association of Community Psychiatrists ("AACP") is an organization of psychiatrists whose mission is to promote health, recovery, and resilience in people, families, and communities.
101. The AACP calls continuity of care "an essential and integral component of effective mental health treatment." AACP's position statement on post-release planning provides that "it is imperative that any psychiatric treatment provided during a period of incarceration include planning for post-release follow-up care in the community." According to the AACP, this includes assessing a detainee's insurance status, providing referrals for postrelease treatment, and providing detainees with an adequate supply of medication.
D. The American Public Health Association Recommends Discharge Planning 102. The American Public Health Association ("APHA") is one of the largest associations of public health professionals in the United States. APHA publishes Standards for Health Services in Correctional Institutions, a set ofhealthcare standards for people in correctional settings. 103. Standards for Health Services in Correctional Institutions requires that a plan for continuity of care be created for people released from correctional facilities, including people with mental illness. Satisfactory compliance with this requirement includes providing each patient with a detailed discharge summary, providing a supply of essential medications sufficient for at least two weeks or until the patient can reasonably be expected to obtain follow-up care, and assisting patients who are eligible to enroll in health insurance programs.
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E. The National Commission on Correctional Health Care Recommends Discharge Planning
104. The National Commission on Correctional Health Care ("NCCHC") is a nongovernmental organization dedicated to improving the quality of correctional health and mental health services, and to helping correctional facilities provide effective and efficient care. NCCHC provides accreditation to correctional facilities nationwide.
105. NCCHC publishes Standards, a nationally recognized framework for evaluating healthcare in correctional settings. As part of Standards, NCCHC has created Standards for Mental Health Services in Correctional Facilities, a set of requirements for mental healthcare in correctional facilities.
106. Compliance with NCCHC's Standards is a key qualification in the NCCHC accreditation process.
107. Orange County Detention Center has sought, and obtained, accreditation from NCCHC.
108. Standards for Mental Health Services requires that "discharge planning is provided for inmates with serious mental health needs whose release is imminent." NCCHC defines discharge planning as "the process of providing sufficient medications for short-term continuity upon release and arranging for necessary follow-up mental health services before the inmate's release to the community."
109. Standards for Mental Health Services sets forth several levels of importance, and designates the level of importance of each requirement. Whereas some standards in Standards for Mental Health Services are designated merely "important," discharge planning is designated "essential," NCCHC's highest designation of importance.
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110. Defendants did not provide Plaintiffs with mental healthcare discharge planning that meets the medical standards set forth above.
F. ICE's Guidance Requires Discharge Planning 111. ICE itself recognizes that discharge planning is an essential element of mental health treatment in institutional settings. ICE's own written guidance requires discharge planning for people in civil immigration detention who receive medical treatment, such as Plaintiffs in this action.
112. In 2008, ICE promulgated the 2008 Performance-Based National Detention Standards ("2008 PBNDS"), which, inter alia, set standards for the medical care that ICE affords to immigrant detainees.
113. The 2008 PBNDS provide in relevant part:
The facility administrative health authority must ensure that a plan is developed that provides for continuity of medical care in the event of a change in detention placement or status. . . . Upon transfer to another facility or release, the medical provider shall ensure that all relevant medical records and at least 7 days' supply of medication shall accompany the detainee. Pt. 4.V.S.
114. In 2011, ICE promulgated the 2011 Performance-Based National Detention Standards ("2011 PBNDS"), aimed at improving upon the 2008 PBNDS.
115. The 2011 PBNDS provide in relevant part: Detainees shall receive continuity of care from time of admission to time of transfer, release or removal. Detainees, who have received medical care, [been] released from custody or removed shall receive a discharge plan, a summary of medical records, any medically necessary medication and referrals to community-based providers as medically-appropriate [sic].
Pt. 4.3.11.5
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116. The 2011 PBNDS also require that a detention facility ensure that "a plan is developed that provides for continuity of medical care in the event of a change in detention placement or status." Pt. 4.3.V.W. The 2011 PBNDS state that "[u]pon release from ICE custody, the detainee shall receive up to a 30 day supply of medication" and that "the [facility] must ensure that a continuity of treatment care plan is developed and a written copy provided to the detainee prior to removal." !d. (emphasis added).
117. Defendants did not provide Plaintiffs mental healthcare discharge planning that meets the guidance that ICE set forth in either the 2008 or 2011 PBNDS. IV. Civil Immigration Detention at Orange County Detention Center
118. In 2008, ICE entered into a contract with Orange County Detention Center to confine people in civil immigration detention from the New York City area awaiting immigration hearings at Varick Street Immigration Court.
119. As part of the contract with ICE, Orange County Detention Center must provide civil immigrant detainees with safekeeping, housing, subsistence, medical, and other services. These services must be provided in compliance with all applicable laws, regulations, fire and safety codes, and policies and procedures.
120. Orange County Detention Center houses both people under civil immigration detention and people in criminal custody at its facility in Goshen, NY. They are in segregated units but live under similar conditions. Civil detainees are confined indoors most of the day, with limited visiting hours.
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A. Medical Care for People Confined to Civil Immigration Detention
121. At Orange County Detention Center, the Orange County Department of Mental Health directly provides mental healthcare to people confined to civil immigration detention, such as Plaintiffs. Defendant Kaye is the Director of this program.
122. Employees of Orange County Detention Center screen people confined to civil immigration detention when they enter the facility and assess their medical care needs, including the need for prescription medication.
123. In order to seek medical care at Orange County Detention Center, people confined to civil immigration detention put in "sick call" requests for medical attention, and sometime thereafter a medical professional responds.
124. According to the 2013 Compliance Inspection of the Office of Detention Oversight at the Department of Homeland Security, Orange County Detention Center's mental health department consists of a full time mental health director, two staff psychiatrists, and one psychiatric nurse practitioner.
125. Orange County Detention Center has a psychiatrist on call to provide care for civil immigrant detainees twenty-four hours a day, seven days a week.
126. Plaintiffs received treatment from the Orange County Detention Center psychiatrists, social workers, Defendants Kaye and Elizondo, and other medical providers on a regular basis.
B. Discharge Planning as a Part of Adequate Mental Health Treatment 127. While County Defendants had a program in place to provide for discharge planning (including access to a continuing supply of their medications, and an adequate continuing care plan) for people held in criminal incarceration at county jails, Orange County
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maintained a persistent, widespread custom, and unofficial policy, of failing to provide similar services for the civil immigrant detainees it houses, such as Plaintiffs.
128. Upon information and belief, during the relevant time periods when Plaintiffs were confined at Orange County Detention Center, Defendants failed to provide discharge planning to other individuals with serious ongoing mental illnesses who received mental health treatment while confined to civil immigration detention at Orange County Detention Center.
129. Upon information and belief, during the relevant time periods, Defendants did on occasion provide minimal discharge planning in the form of interim medication for one or two people, but Defendants only did so after extraordinary advocacy by the person's immigration attorney and social worker from the immigration representation organization.
130. Employees of County Defendants have acknowledged that Defendants have an unofficial policy of not providing discharge planning for people who are confined to civil immigration detention at Orange County Detention Center.
131. Defendants were aware of the substantial risk of serious harm to Plaintiffs by failing to provide discharge planning. Plaintiffs are individuals with mental health diagnoses and require regular treatment, which Defendants provided while Plaintiffs were detained.
132. While confined at Orange County Detention Center, but prior to her diagnosis and before she began taking her prescription medication regimen, Defendants removed Ms. Small from Orange County Detention Center for inpatient hospitalization at Kings County psychiatric ward. Once she returned to Orange County Detention Center, she stabilized while taking the medication prescribed to address her mental illness. Defendants were aware of the substantial risk of serious harm to Ms. Small related to failing to provide discharge planning and sending her out into the community with only train fare, yet disregarded this risk.
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133. Mr. Charles had been hospitalized years prior to his confinement in civil immigration detention. Information about a previous hospitalization of inpatient care was present in Mr. Charles' medical records at Orange County Detention Center, and Mr. Charles had informed the medical providers at Orange County Detention Center of his previous hospitalization. Defendants were aware of the substantial risk of serious harm to Mr. Charles from failing to provide discharge planning and sending him out into the community with only his identification and clothing, yet disregarded that risk.
134. Further, Defendants were aware or should have been aware ofthe substantial risk to Plaintiffs of failing to provide discharge planning because of the many standards and guidelines setting forth the need and requirement for discharge planning in institutional settings, like the Orange County Detention Center. A wide array of medical professional associations provide that the standard of care requires discharge planning. Additionally, ICE's guidelines applicable to contracted facilities require discharge planning. These guidelines and standards exist because failing to provide discharge planning and leaving someone with mental illness diagnoses who has been receiving regular care without a continuum of care plan, transitional medication allotment, or information on how to seek further care creates a substantial risk of serious harm to that person and the wider community. Defendants disregarded that risk when they did not provide discharge planning to Plaintiffs.
135. County Defendants were also aware ofthe substantial risk to Plaintiffs of failing to provide discharge planning because they, as well as sister jails in the region, provide discharge planning to individuals whom they criminally incarcerate. Orange County criminally incarcerates nearly 1,000 people in the same facility as Plaintiffs and provides discharge planning to that population, but not for people confined in civil immigration detention.
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136. Further, in the year 2000, Brad H v. City ofNew York established that New York's MENTAL HYGIENE LAW§ 29.15 requires that facilities providing mental healthcare in segregated mental health units, such as the jail at Rikers Island in New York City, must provide adequate discharge planning. 712 N.Y.S.2d 336, 343 (Sup. Ct. N.Y. Cty. 2000), aff'd, 716 N.Y.S.2d 852 (1st Dep't 2000). Rikers Island has provided discharge planning under a courtmonitored consent decree for nearly two decades.
137. In early 2015, New York State expanded the requirement for discharge planning to anyone incarcerated in the state prison system who had received mental health treatment in the three years prior to release. County Defendants disregarded the known risk when they did not provide discharge planning to Plaintiffs.
FIRST CLAIM FOR RELIEF 42 U.S.C. § 1983: Violations of the Fourteenth Amendment Due Process Clause
(Against County Defendants) 138. Plaintiffs repeat and reallege the foregoing paragraphs as if the same were fully set forth at length herein. 139. The Due Process Clause of the Fourteenth Amendment requires that civil detainees be afforded adequate medical care during their civil detention. 140. The Due Process Clause of the Fourteenth Amendment also forbids civil detainees from being subjected to punitive conditions as part of their civil detention. 141. The constitutional right to adequate medical care-even in the context of punitive incarceration-includes discharge planning. Non-criminal detainees like Plaintiffs are entitled to at least as much constitutional protection. 142. During their time confined in civil immigration detention at Orange County Detention Center, Plaintiffs Charles and Small had a serious medical need for adequate discharge
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planning, including for a plan to ensure uninterrupted access to their medications and any other mental healthcare resources that they require. They are people with mental illnesses whose mental health depends on the continuity of their daily medications and mental healthcare. Without adequate discharge planning, they faced lapsed mental healthcare upon their release from civil detention. As a result, they faced a significantly increased likelihood that they would relapse upon discharge from a provider's care, facing hospitalization, increased risk of suicide, homelessness, and other related instability.
143. Pursuant to the County Defendants' persistent, widespread custom and unofficial policy, County Defendants and its employees denied adequate discharge planning to Plaintiffs Charles and Small with reckless disregard for their constitutional rights.
144. This persistent, widespread practice of denying adequate discharge planning was so pervasive that County officials with policy-making authority tacitly authorized the policy, had actual or constructive knowledge of the widespread custom and unofficial policy, and failed to do anything to end the unconstitutional custom and unofficial policy of denying adequate discharge planning.
145. By denying adequate discharge planning to Plaintiffs Charles and Small, County Defendants have acted with deliberate indifference to Plaintiffs Charles' and Small's serious medical needs in violation ofthe Due Process Clause of the Fourteenth Amendment.
146. By reason of the foregoing, by failing to provide Plaintiffs adequate mental healthcare, and exhibiting deliberate indifference to Plaintiffs' medical needs, County Defendants deprived Plaintiffs of the rights, immunities, and privileges guaranteed to every person in the United States, in violation of 42 U.S.C. § 1983, including but not limited to rights guaranteed by the Fourteenth Amendment of the United States Constitution.
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147. By denying adequate discharge planning to Plaintiffs Charles and Small that is regularly afforded to people who are criminally incarcerated, County Defendants subjected Plaintiffs Charles and Small to punitive conditions in violation of the Due Process Clause of the Fourteenth Amendment.
148. As a direct and proximate result of County Defendants' unconstitutional failure to provide discharge planning, Plaintiff Charles' mental healthcare seriously lapsed upon his release from civil detention. He had no access to medication or any other mental healthcare for approximately two weeks. As a result, he suffered psychiatric decompensation that required hospitalization for several months. Additionally, Mr. Charles was unable to return to his employment and lost potential wages as a result of Defendants' failures.
149. As a direct and proximate result of County Defendants' unconstitutional failure to provide discharge planning, Plaintiff Small was at risk of a severe relapse in her mental healthcare. The lack of a discharge plan in advance of a known release date, as well as the failure to ensure that she had access to medication or any other mental healthcare, caused her to suffer severe emotional distress.
150. Accordingly, Plaintiffs Charles and Small are entitled to compensatory damages from County Defendants, including economic damages.
SECOND CLAIM FOR RELIEF 42 U.S.C. § 1983: Violations of the Fourteenth Amendment Due Process Clause
(Against Individual Defendants) 151. Plaintiffs repeat and reallege the foregoing paragraphs as if the same were fully set forth at length herein. 152. The Due Process Clause of the Fourteenth Amendment requires that civil detainees be afforded adequate medical care during their civil detention.
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153. The Due Process Clause of the Fourteenth Amendment also forbids civil detainees from being subjected to punitive conditions as part of their civil detention.
154. The constitutional right to adequate medical care--even in the context of punitive incarceration-includes discharge planning. Non-criminal detainees like Plaintiffs are entitled to at least as much constitutional protection.
155. During their time confined in civil immigration detention at Orange County Detention Center, Plaintiffs Charles and Small had a serious medical need for adequate discharge planning, including a plan to ensure uninterrupted access to their medications, and any other mental healthcare resources that they require. They are people with mental illnesses whose mental health depends on the continuity of their mental healthcare. Without adequate discharge planning, they faced lapsed mental healthcare upon their release from civil detention. As a result, they faced a significantly increased likelihood that they would relapse upon discharge from a provider's care, and face hospitalization, increased risk of suicide, homelessness, and other related instability.
156. Individual Defendants Kaye and Elizondo were involved in, and responsible for, providing and approving mental healthcare for Plaintiffs Charles and Small while they were confined to civil immigration detention at Orange County Detention Center.
157. Individual Defendants Kaye and Elizondo were involved in, and responsible for, the release process for Plaintiffs Charles and Small.
158. By denying adequate discharge planning to Plaintiffs Charles and Small, the
/
Individual Defendants acted with deliberate indifference to Plaintiffs Charles' and Small's serious medical needs in violation of the Due Process Clause of the Fourteenth Amendment.
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159. By reason of the foregoing, by failing to provide Plaintiffs adequate mental healthcare, and exhibiting deliberate indifference to Plaintiffs' medical needs, Individual Defendants deprived Plaintiffs of the rights, immunities, and privileges guaranteed to every person in the United States, in violation of 42 U.S.C. § 1983, including, but not limited to, rights guaranteed by the Fourteenth Amendment of the United States Constitution.
160. By denying adequate discharge planning to Plaintiffs Charles and Small-medical care that is regularly afforded to people who are criminally incarcerated-Individual Defendants subjected Plaintiffs Charles and Small to punitive conditions in violation of the Due Process Clause of the Fourteenth Amendment.
161. As a direct and proximate result of the Individual Defendants' unconstitutional failure to provide discharge planning, Plaintiff Charles' mental healthcare seriously lapsed upon his release from civil detention. He had no access to medication, or any other mental healthcare, for approximately two weeks. As a result, he suffered psychiatric decompensation that required hospitalization for several months.
162. As a direct and proximate result ofthe Individual Defendants' unconstitutional failure to provide discharge planning, Plaintiff Small was at risk of a severe relapse in her mental healthcare. The lack of a discharge plan in advance of a known release date, as well as the failure to ensure she had access to medication or any other mental healthcare, caused her to suffer severe emotional distress.
163. Accordingly, Plaintiffs Charles and Small are entitled to compensatory damages from the Individual Defendants, including economic damages, as well as punitive damages.
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RELIEF REQUESTED
WHEREFORE, Plaintiffs respectfully request that the Court:
a. Assume jurisdiction over this matter;
b. Issue a judgment against the County Defendants in an amount to be determined by the Court, including compensatory damages for injuries sustained by Plaintiffs Charles and Small in amounts that are fair, just and reasonable;
c. Issue a judgment against the Individual Defendants in an amount to be determined by the Court, including compensatory and punitive damages for injuries sustained by Plaintiffs Charles and Small in amounts that are fair, just and reasonable;
d. Award Plaintiffs the costs of this action;
e. Award Plaintiffs pre- and post-judgment interest, as permitted by law;
f. Award Plaintiffs reasonable attorneys' fees; and
g. Grant Plaintiffs such other relief as the Court deems appropriate and just.

Dated: July 12, 2016 New York, New York

Respectfully submitted,

NEW YORK LAWYERS FOR THE PUBLIC INTEREST
a~
Laura F. Redman Reena Arora Antony Gemmell Katherine Rosenfeld
151 West 30th Street, 11th Floor New York, New York 10001 212-244-4664

33

Case 7:16-cv-05527-NSR Document 1 Filed 07/12/16 Page 34 of 34 Siie .IH~ ACHER & BARTLETT LLP
+~·~
Thomas C. Rice Daniel J. Stujenske Lauren E. Repole
Esinam M. Agbemenu (not yet admitted)
425 Lexington Ave. New York, New York 10017 212-455-2000
Attorneys for Plaintifft
34

 
 Case 7:16-cv-05527-NSR Document 68
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

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MICHELET CHARLES and CAROL SMALL,

Plaintiffs,

-against-

COUNTY OF ORANGE, NEW YORK; COUNTY OF ORANGE SHERIFF'S DEPARTMENT; ORANGE COUNTY DEPARTMENT OF MENTAL HEALTH; NICOLE KAYE, Clinic Director, Orange County Correctional Facility, in her individual capacity; CARMEN ELIZONDO, former Clinic Director, Orange County Correctional Facility, in her individual capacity,

No. 16-CV-5527 (NSR) OPINION & ORDER

Defendants.

NELSONS. ROMAN, United States District Judge Plaintiffs Michelet Charles ("Charles") and Carol Small ("Small"), (collectively,
"Plaintiffs"), bring this action pursuant to 42 U.S.C. § 1983, alleging that their due process rights were violated when defendants allegedly failed to provide them with discharge plans upon release. 1 Plaintiffs seek damages against the following defendants: the County of Orange ("Orange County"), the County of Orange Sheriffs Department (the "Sheriffs Office"),2 the Orange County Department of Mental Health (the "Mental Health Department"), and the Mental Health Depmtment's clinical directors, both current (Nicole Kaye) and former (Carmen Elizondo), in their

1 Plaintiffs do not claim they were denied treatment while in custody, in fact they both concede that they received adequate and regular mental healthcare during detention at the Orange County Conectional Facility_ (See CompL ~ 2.) "As a result of ___ treatment" "Plaintiffs were stable and regularly taking appropriate medication" "before being released from civil immigration detention." (Id.) Rather the gravamen of the Complaint hinges on whether Defendants are liable for failing to provide Plaintiffs with a discharge plan upon release from the facility. If so, Defendants abrnptly interrupted Plaintiffs' mental healthcare in violation of their constitutional rights.
2 The Court will refer to the County of Orange Sheriffs Department based on Defendants' claim that "[t]here is no County depm1ment called the 'Sheriff's Department,' thought there is a Sheriffs Office." (Defs.' Cty. Orange, Orange Cly. Sheriff's Office, Orange Cty. Dep't Mental Health, and Elizondo Mem. Law Supp. Mot. Dismiss (ECF No. 48) ("County Defs'_ Mem") at 8 n.6).

Case 7:16-cv-05527-NSR Document 68 Filed 09/29/17 Page 2 of 24
individual capacities. According to the Complaint, defendants failed to provide Charles and Small, who were receiving psychiatric care and treatment in detention, with discharge plans. Discharge plans are generally created prior to an individual’s release from a provider’s care and designed to guard against relapse, prevent hospitalizations, and decrease the risks of instability. (See Complaint (ECF No. 2) (“Compl.”) ¶ 1.)
Defendants now move to dismiss all claims. Orange County, the Sherriff’s Office, the Mental Health Department, and Elizondo, (collectively, the “County Defendants”), each move to dismiss the Complaint for failure to state a claim. See Fed. R. Civ. P. 12(b). Kaye moves for judgment on the pleadings, see Fed. R. Civ. P. 12(c). For the reasons that follow, the Court grants each motion and dismisses all of Plaintiffs’ claims.
I. BACKGROUND3
A. Parties Plaintiffs Charles4 and Small are “individuals who suffer from serious, ongoing mental
illnesses.” (Compl. ¶ 1.) They allege mainly that Orange County’s institutional entities and its employees acted “unconstitutional[ly],” “in failing to provide [them] any discharge planning when they were released from civil immigration detention.” (Id.) “Discharge planning is an essential part of mental healthcare in institutional settings,” and consists of a plan “created prior to release … from a provider’s care,” “to ensure” individuals “do not relapse …, face hospitalization,
3 The facts related therein are drawn primarily from the Complaint filed by Charles and Small, (see generally ECF No. 1), and the materials it references. See DiFolco v. MSNBC Cable LLC, 622 F.3d 104, 111 (2d Cir. 2010) (“In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.”). The Courts accepts all factual allegations in the Complaint as true and construes them in the light most favorable to Charles and Small, the non-moving parties. See, e.g., Kleinman v. Elan Corp., 706 F.3d 145, 152 (2d Cir. 2013); Gonzalez v. Hasty, 651 F.3d 318, 321 (2d Cir. 2011). With respect to Kaye’s Rule 12(c) motion for judgment on the pleadings, the Court draws, as it may, from “the complaint, the answer, [and] any written document attached to them[.]” Roberts v. Babkiewicz, 582 F.3d 418, 419 (2d Cir. 2009).
4 Before Charles was detained, he resided in New York State. As of March 12, 2016, when the Complaint was filed, Charles resided in Riverdale, Georgia. (Compl. ¶ 8.)
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increased risk of suicide, homelessness, and other related instability.” (Id.) Because inmates are “forced to rely on Defendants” for “adequate medical care,” defendants’ omissions here “created a substantial risk that Plaintiffs would relapse,” a failure that allegedly falls below the “minimally acceptable constitutional standards of institutional mental healthcare.” (Id. ¶ 6.) This omission, which Plaintiffs allege rises to the level of a “widespread custom, and unofficial policy” of “depriv[ing] [those] with mental illness,” from “critical treatment” (id. ¶ 6), similarly falls below the practice adopted by other jails (e.g., Rikers) and recent federal guidance (from the Immigration and Customs Enforcement Agency (“ICE”)), (id.).5 Defendants’ failure to provide discharge planning constitutes a deliberate indifference to Plaintiffs’ serious medical needs in violation of the Fourteenth Amendment. (Id. ¶ 7.)
The institutional defendants are the County, the Sheriff’s Department, and the Mental Health Department. The County is sued based on their supervision of the Orange County Detention Center where Plaintiffs were detained pending their immigration removal hearings. “Orange County operates [the] detention center, and through its senior officials, promulgates and implements policies with respect to the provision of mental healthcare” of inmates. (Compl. ¶ 10.) In addition, “senior officials within the County,” “are aware of and tolerate the practice of failing to provide discharge planning.”(Id. ¶ 10.) The Sheriff’s Department is sued based on its status as the “signatory to an Inter-Government Services Agreement between ICE and Orange County.” (Id. ¶11.) The Mental Health Department is sued based on “providing mental health services to people confined in [the] detention center,” “pursuant to the Inter-Governmental Services Agreement between ICE and Orange County.”6 (Id. ¶ 12.)
5 According to the Complaint, ICE – the federal agency that contracts with Orange County to confine civil immigrant detainees – requires discharge planning. (Compl. ¶ 6.)
6 The County Defendants assert that since 2008, Orange County has contracted with the federal government “to house civil immigration detainees while the await deportation.” (County Defs.’ Mem. at 5.)
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The individual defendants are the Mental Health Department’s two clinical directors, Nicole Kaye (“Kaye”) and Carmen Elizondo (“Elizondo”). Both Kaye and Elizondo are sued based on their supervising the clinic’s employees,7 who were required to provide inmates with “appropriate mental healthcare.” (Compl. ¶¶ 13, 30, 81.) More specifically, both Kaye and Elizondo and the employees they supervised, “failed to arrange for the provision of any medication” to Charles or Small “at the time of [their] release or thereafter.” (Id. ¶ 52, 82.) Kaye was the acting director at the time Charles was released and Small was detained, while Elizondo, who preceded Kaye, was the acting director during the time Charles was confined. (Id. ¶¶ 13-14.)
B. Facts as to Charles Generally, both Charles and Small were held in “civil immigration detention,”8 where
“each received regular mental healthcare.” (Compl. ¶ 2.) This care, which proved effective in stabilizing plaintiffs, consisted of routine meetings with psychiatrists and psychotropic medications “for serious mental illnesses” that “could not be stopped abruptly without serious consequences.” (Id. ¶¶ 2-3.) Nevertheless, Defendants “abruptly” interrupted this serious care by releasing Plaintiffs without, inter alia, a referral for ongoing psychiatric care or, at the very least, “interim medications” to hold them over for “a few days until they could access new care.” (Id. ¶ 2.)
Charles, a U.S. lawful permanent resident, suffers from “bipolar and schizoaffective disorders,” (id. ¶¶ 3, 23), and requires a “daily prescription regimen to manage” them, (id. ¶ 31).
7 “According to the 2013 Compliance Inspection of the Office of Detention Oversight at the Department of Homeland Security, Orange County Detention Center’s mental health department consists of a full time mental health director, two staff psychiatrists, and one psychiatric nurse practitioner.” (Compl. ¶ 124.)
8 The Complaint states that Plaintiffs in civil immigration detention centers “are subject to jail-like conditions while they await the outcome of their civil immigration removal and deportation cases.” (Compl. ¶ 19.) Detainees are individuals who “may have completed a criminal sentence by the time they are confined to immigration detention, or may not have been required to serve any sentence at all.” (Id.) The County Defendants admit that “[t]he United States Department of Homeland Security contracts with Orange County to house ICE detainees at the Jail.” (County Defs.’ Mem. at 2 n.2; see also Ex. A. ¶ 19.)
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Left untreated, “these illnesses cause [] Charles to suffer from … symptoms such as hallucination and delusions … periods of mania and depression.” (Id. ¶ 23.) On July 25, 2014, he was confined “for almost a year” (i.e., 363 days) in a civil immigration detention facility within Orange County, (id. ¶ 3), “pending the outcome of his removal proceeding,” (id. ¶ 26). “When [] Charles entered [the detention center], medical personnel at the facility medically evaluated … and diagnosed him with bipolar disorder with psychotic features.” (Id. ¶ 27.) During his detention, Orange County “provided [Charles] with coordinated psychiatric care and psychotropic medication,” (id. ¶¶ 3, 29), “as required by the Inter-Governmental Services Agreement,” (id. ¶ 28). Specifically, medical employees of the Mental Health Department, “overseen by Defendants Kaye and Elizondo, prescribed Risperdal and Zyprexa,” which was administered to Charles “on a daily basis.” (Id. ¶ 30.) “According to [the] medical records, Defendant Elizondo signed Charles’ treatment plan,” during the time he was confined. (Id. ¶ 30.) The medical records confirm “that while [in detention], [] Charles was psychiatrically stable,” (id. ¶ 31), because of the treatment plan. Charles himself confirmed the “regimen was ‘therapeutic,’ meaning it alleviated his symptoms.” (Id. ¶ 32.)
On July 22, 2015, Charles appeared for an immigration merits hearing, immediately after which he was “released onto the streets of lower Manhattan with his identification and nothing more.” (Id. ¶ 3.) Despite being “aware,” it was possible for Charles to be released immediately after the hearing, defendants failed to provide him with a discharge plan. (Id. ¶¶ 34-35.) More specifically, defendants failed to provide Charles “or his immigration attorney with a written discharge plan, a list of his medications, a supply of medication, a list of outside referrals, a list of providers for continuing care, his belongings (clothing), [or the] money he had in commissary ….” (Id. ¶ 37.) Defendants additionally failed to “contact any pharmacy to arrange” prescriptions, (id.
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¶ 43), or even – at the very least – provide him or his immigration attorney “with information about his prescriptions,” (presumably they failed to even list the medication names, prescription strength, or dose) (id. ¶¶ 35, 41-42). Because Charles was released without “a single referral to a mental healthcare provider,” or “interim medication” that the Mental Health Department ad prescribed him all year, his deportation officer advised him to return to the detention center “the very next day” – which Charles, accompanied by his daughter, did. (Id. ¶¶ 3, 44.) After traveling the “65 miles,” (id. ¶ 40), back to the detention center, Charles and his daughter were turned away without any of “the resources necessary to obtain care,” and “[he] quickly spiraled downward” as a result, (id. ¶ 3). The detention center’s attendant “stated that the person who had transported [] Charles to … immigration court was responsible for providing a continuing supply of medication,” and “also stated that as a matter of institutional policy,” the detention center “can no longer provide medication” “after a person is released from its custody.” (Id. ¶¶ 45-46.) Because Charles and his daughter were unsuccessful in obtaining resources to bridge the gap in his care, Charles’s immigration attorney contacted the deportation officer to make the same request, an inquiry that said officer ignored. (Id. ¶ 47.)
Charles was unable to access his health insurance upon release because he was in detention on the date he was required to renew it. (Id. ¶ 54.) Within a two week span Charles had “suffered total psychiatric decompensation,” (id. ¶ 3), and by August 4, 2015, (id. ¶ 57), he was admitted “incoherent, hallucinating, and suicidal,” to a psychiatric hospital’s inpatient care where he remained “for almost two months,” (id. ¶ 53). During this time, “he was separated from his family and community while he was undergoing intense medical treatment.” (Id. ¶ 59.) Charles “rebound[ed] to his baseline,” “after 56 days in South Oaks Hospital,” and was discharged on October 9, 2015. (Id. ¶¶ 60-61.)
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C. Facts as to Small Small, a U.S. lawful permanent resident, suffers from “paranoid schizophrenia.” (Compl.
¶ 3.) On May 14, 2014, she was confined “for eight months” in a civil immigration detention facility within Orange County. (Id. ¶ 5.) During her detention, she was treated with “coordinated psychiatric care and psychotropic medication,” for “extreme symptoms,” including paranoia. Unlike Charles, who was aware of and received treatment for his disorders before he was detained, Small “began experiencing symptoms of mental illness,” “while in detention.” (Id. ¶ 66.) Specifically, around June 2015 she experienced “visual and auditory hallucinations,” and extreme paranoia and delusions. (Id. ¶¶ 66-67.) “She believed she was being monitored by the government through a chip implanted in her tooth, that there was a government conspiracy to poison her, and that the poison was coming through the vents.” (Id. ¶ 67.) Small complained of these fears in letters she wrote to the sheriff and deportation officers and in calls she made to the ICE hotline. (Id.) In late June 2015, a psychiatrist at the detention center diagnosed Small with paranoid schizophrenia. (Id.) By September 8, 2015, Small’s condition had worsened so severely that she was transferred “to the inpatient psychiatric ward at Kings County Hospital (“Kings”) for” more “intensive treatment.” (Id. ¶ 68.) A month later, on October 15, 2015, Small was sufficiently stable to be transferred from Kings back to the detention center where the Medical Health Department’s employees, “overseen by Defendant Kaye,” continued to provide Small with “medically necessary treatment.” (Id. ¶¶ 69-70.) By the time of her release, Small’s prescription “regimen consisted of [daily doses of] Trazodone, Benztropine, and Olanzapine.” (Id. ¶ 73.) Small’s condition was stable on this regimen. (Id. ¶ 74.)
On January 11, 2016, an immigration judge ordered that Small be released as stipulated between her counsel and ICE. (Id. ¶ 76.) On January 19, 2016, Small was released from the facility
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without a discharge plan, this time “at approximately 6:30 at night,” (id. ¶ 5), “in below-freezing temperatures,” (id. ¶ 77), with only eighty dollars in cash,” (id. ¶ 5). Defendants failed to provide Small with “a written discharge plan, a list of her medications, or a list of outside referrals or providers for continuing care,” despite having advance notice – a full week – of Small’s exact release date. (Id. ¶¶ 78-79.) At approximately one in the morning she arrived in Manhattan, where she spent the night inside a diner. (Id ¶ 5.) “[D]ays after her release, she checked herself into a hospital emergency room.” (Id.)
D. Procedural History On July 12, 2016, Charles and Small filed the Complaint claiming constitutional
deprivations and seeking compensatory and punitive damages for the injuries alleged. (ECF No. 1, “Relief Requested” Sec.). On August 9, 2016, Orange County, the Sheriff’s Office, the Mental Health Department, and Elizondo (collectively, the “County Defendants”) jointly filed an answer. (ECF No. 29.) On August 9, 2016, Kaye separately filed an answer. (ECF No. 30.) On October 19, 2016, the Court held a pre-motion conference and set a schedule for the filing of the ensuing motions.
On January 30, 2017, the County Defendants filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). (ECF No. 46.) These defendants also filed a joint memorandum of law covering common legal issues. (Defs.’ Cty. Orange, Orange Cty. Sheriff’s Office, Orange Cty. Dep’t Mental Health, and Elizondo Mem. Law Supp. Mot. Dismiss (ECF No. 48) (“County Defs’. Mem.”).) On January 30, 2017, Kaye filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(c), (ECF No. 50), and a memorandum of law in support, (ECF No. 51 (“Def. Kaye’s Mem.).) On January 30, 2017, Plaintiffs opposed the motions, (ECF No. 59), and County Defendants and Kaye filed separate replies, (ECF Nos. 54 & 56, respectively). On January 31, 2017, the Court denied
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Plaintiffs’ request for oral argument, (see ECF No. 64), and on April 19, 2017, it approved a joint stipulation regarding procedures to be followed in handling confidential information, (see ECF No. 67).
I. DISCUSSION Generally, Plaintiffs allege that defendants violated his and her constitutional rights to be
free from deliberate indifference in providing discharge plans upon release. (Compl. ¶¶ 6, 26, 3343, 65, 76-84, 142, 155.) Plaintiffs bring three claims under § 1983: (1) a Monell claim against the County of Orange, the Sheriff’s Office, and the Mental Health Department, alleging that those defendants’ policy, practice, and custom was to provide constitutionally inadequate healthcare to persons held in civil immigration detention; (2) a claim against all defendants for deliberate indifference in providing medical care to Charles and Small upon discharge from the facility; and (3) supervisory liability claims against Elizondo and Kaye.
As noted, the pending motions are to dismiss under Rules 12(b)(6) and 12(c), on various grounds, some global, others made only by individual defendants or groups. The moving defendants globally argue that there is no established substantive due process right to post-release measures inherent in discharge plans. According to this view, the state’s duty of care ends the instant an inmate walks through the prison gates and into the civilian world because that is the moment when a person’s ability to secure medication or care on his and her own behalf is restored. The institutional defendants argue the Complaint does not adequately allege municipal liability under Monell or deliberate indifference as to Plaintiffs’ medical care. The individual defendants argue that the Complaint does not adequately allege the required elements for liability under § 1983 for violations of plaintiffs’ constitutional rights; and that they are entitled to qualified immunity.
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A. Standard of Review – Rules 12(b)(6) and 12(c) To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead “enough facts
to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’” Ashcroft, 556 U.S. at 678. (quoting Twombly, 550 U.S. at 557).
In considering a motion to dismiss, a district court must “accept[ ] all factual claims in the complaint as true, and draw[ ] all reasonable inferences in the plaintiff’s favor.” Lotes Co. v. Hon Hai Precision Indus. Co., 753 F.3d 395, 403 (2d Cir. 2014) (quoting Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010) (internal quotation marks omitted)). However, this tenet is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. “[R]ather, the complaint’s [f]actual allegations must be enough to raise a right to relief above the speculative level, i.e., enough to make the claim plausible.” Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (quoting Twombly, 550 U.S. at 555, 570) (internal quotation marks omitted) (emphasis in Arista Records). A complaint is properly dismissed where, as a matter of law, “the allegations in [the] complaint, however true, could not raise a claim of entitlement to relief.” Twombly, 550 U.S. at 558.
As for a motion for judgment on the pleadings under Rule 12(c), “[a] motion to dismiss under Rule 12(c) is governed by the same standard as a motion under Rule 12(b)(6).” In re Ades
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and Berg Grp. Inv’rs, 550 F.3d 240, 243 n.4 (2d Cir. 2008) (citation omitted). As such, the district court accepts all allegations in the complaint as true, draws all reasonable inferences in the plaintiffs’ favor,9 and properly dismisses the complaint when the allegations in the complaint fail to raise an entitlement to relief above the speculative level. Id; see also Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir. 2012) (“To survive a Rule12(c) motion, the complaint must contain sufficient factual matter to ‘state a claim to relief that is plausible on its face.’”).
B. Motions to Dismiss § 1983 Claims for Failure to State a Claim Plaintiffs sue the County Defendants under § 1983 for allegedly violating their federal
rights, specifically deliberate indifference to Plaintiffs’ due process rights. (Compl. ¶¶ 1, 6-7.) The Complaint alleges that the defendants directly violated plaintiffs’ constitutional right to adequate medical care, which includes discharge planning. It also alleges that Elizondo and Kaye directly participated in the deprivation of plaintiffs’ rights and they are also personally liable for these deprivations on other theories of personal liability recognized under § 1983. The County Defendants move to dismiss on the grounds the Complaints factual allegations do not adequately plead deprivations of federal rights by means of deliberate indifference.
Section 1983 provides redress for a deprivation of federally protected rights by persons acting under color of state law. 42 U.S.C. § 1983. To prevail on a § 1983 claim, a plaintiff must establish (1) the violation of a right, privilege, or immunity secured by the Constitution or laws of the United States (2) by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Flagg Bros., Inc., v. Brooks, 436 U.S. 149, 155-56 (1978).10
9 See also Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). 10 It is undisputed that the individual defendants, all of whom were employees of the County’s Mental Health Department, were persons acting under color of state law within the meaning of § 1983.
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The personal involvement of a defendant sued in his or her individual capacity is a requirement for liability under § 1983; a defendant’s supervisory authority is insufficient in itself to create liability under § 1983. Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003). “To proximately cause a … due process violation … a defendant must be personally involved in the violation. A plaintiff may establish such personal involvement by making any one of five showings (the ‘Colon factors’).” Warren v. Pataki, 823 F.3d 125, 136 (2d Cir. 2016) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)).11 These showings are as follows: “(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of [the plaintiffs] by failing to act on information that unconstitutional acts were occurring.” Id. (quoting Colon, 58 F.3d at 873); see also Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 229 (2d Cir. 2004) (“[A] plaintiff must establish a given defendant’s personal involvement in the claimed violation in order to hold that defendant liable in his [or her] individual capacity under § 1983. Personal involvement ... includes not only direct participation in the alleged violation but also gross negligence in the supervision of subordinates who committed the wrongful acts and failure
11 The Second Circuit has not squarely addressed how Iqbal affects the standards in Colon for establishing supervisory liability. It recently observed, the limitation on supervisory liability in Iqbal “has, of course, engendered conflict within our own Circuit about the continuing vitality of the supervisory liability test set forth in Colon ....” Reynolds v. Barrett, 685 F.3d 193, 205 n.14 (2d Cir. 2012); see Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013) (noting that Iqbal may have “heightened the requirements for showing a supervisor’s personal involvement with respect to certain constitutional violations” but not reaching the impact of Iqbal on Colon because the complaint “did not adequately plead the [w]arden’s personal involvement even under Colon.”); see also Aguilar v. Immigration & Customs Enforcement Div., 811 F. Supp. 2d 803, 814 (S.D.N.Y. 2011) (“The Court of Appeals has not yet definitively decided which of the Colon factors remains a basis for establishing supervisory liability in the wake of Iqbal, and no clear consensus has emerged among the district courts within the circuit.”).
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to take action upon receiving information that constitutional violations were occurring.”) (citations omitted)).12 The Court elaborates below on the standards governing deliberate indifference because the Complaint’s theory of liability for defendants rests, in part, on such grounds. (Compl. ¶¶ 7, 145, 158.)
1. Plaintiff’s Inadequate Medical Care Claims The claims here depend on a single threshold question: did the defendants’ actions violate plaintiffs’ constitutional rights? If they did not, then the defendants cannot be liable to Charles and Small under § 1983, regardless of whether defendants acted pursuant to a municipal policy or custom. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam). Furthermore, if Charles and Small have no valid claim under § 1983 against any defendant, the Court cannot reach the question of whether individual defendants were deliberately indifferent to plaintiffs’ medical needs, despite the egregious character of the facts alleged here. The Court therefore begins with the most substantive question of whether the defendants’ conduct infringed on Plaintiffs’ constitutional rights. Among the liberties protected by the Due Process Clause of the Fourteenth Amendment is “a right to be free from … unjustified intrusions on personal security.” Ingraham v. Wright, 430 U.S. 651, 673 (1977). But in DeShaney v. Winnebago Cty. Dep’t of Soc. Srvs., the Supreme Court observed that “nothing in the language of the Due Process Clause itself requires the State to protect
12 In Iqbal, the Supreme Court held that “[b]ecause vicarious liability is inapplicable to … [section] 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. 662, 676 (2009). In so holding, the Court explicitly rejected the argument that, “a supervisor’s mere knowledge of his subordinate’s discriminatory purpose amounts to the supervisor’s violating the Constitution.” Id. at 677. Thus, the Court concluded that “each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.” Id. The Court went on to note that the required showing of personal involvement “will vary with the constitutional provision at issue”; as the plaintiff’s claim in Iqbal was for “invidious discrimination” in violation of the First Amendment and Equal Protection Clause, “the plaintiff must plead and prove that the defendant acted with discriminatory purpose.” Id. at 676. Accordingly, the Court rejected the plaintiff’s theory that “a supervisor’s mere knowledge of his subordinate’s discriminatory purpose amounts to the supervisor’s violating the Constitution.” Id. at 677.
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the life, liberty, and property of its citizens against invasion by private actors.” 489 U.S. 189, 195 (1989) (the seminal case on substantive due process where the Supreme Court considered “when, if ever, the failure of a state of local government entity or its agents to provide an individual with adequate protective services constitutes a violation of the individual’s due process rights.”) As a result, the Court held that the Clause “generally confer[s] no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.” Id. at 196.
The Second Circuit has “recognized two exceptions to this general principle, rooted in the Supreme Court’s analysis in DeShaney.” Matican v. City of New York, 524 F.3d 151, 155 (2d Cir. 2008). First, the state may owe such an obligation if its agents “in some way had assisted in creating or increasing the danger to the victim.” Dwares v. City of New York, 985 F.2d 94, 98-99 (2d Cir. 1993) (citing DeShaney, 489 U.S. at 201, 203), overruled on other grounds by Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993). Second, the state or its agents may owe a constitutional obligation to the victim of private violence if the state had a “special relationship” with the victim. Id. (citing Ying Jing Gan v. City of New York, 996 F.2d 522, 533 (2d Cir.1993) (internal citations omitted)). Even if Plaintiffs’ claims fall within one of these two exceptions, and the defendants’ behavior violated a constitutional obligation, Charles and Small “face an additional hurdle: he [and she] must show that the defendants’ behavior was ‘so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.’” Matican, 524 F.3d at 155 (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 848 n.8 (1998)). “This requirement screens out all but the most significant constitutional violations, ‘lest the Constitution be demoted to … a font of tort law.’” Matican, 524 F.3d at 155 (quoting Paul v. Davis, 424 U.S. 693, 701 (1976)).
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a. State-created danger exception
“[T]he state-created danger exception arises from the Court’s analysis in DeShaney.”
Matican, 524 F.3d at 157. After explaining that no special relationship existed between the state
and petitioner, the Court emphasized that government officers had done nothing worse than failing
to take action even though suspicious circumstances may have counseled an active role.
DeShaney, 489 U.S. at 203. It concluded that, by negative implication, the state does infringe a
victim’s due process rights when its officers assist in creating or increasing the danger that the
victim faced at the hands of a third party.” Matican, 524 F.3d at 157 (quoting Dwares, 985 F.2d
at 99).
Plaintiffs’ claims do not implicate the “state created danger” exception because they have
not alleged that they were victim of any private violence, so the Court addresses only the special
relationship exception.
b. Special relationship exception The special relationship13 exception grows from the DeShaney Court’s observation that “in
certain limited circumstances the Constitution imposes upon the State affirmative duties of care
and protection with respect to particular individuals,” such as incarcerated prisoners and involuntarily committed mental patients. 14 Deshaney, 489 U.S. at 198; see also Youngberg v.
13 The Supreme Court had described this relationship as follows: [W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.... The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic needs – e.g., food, clothing, shelter, medical care, reasonable safety – it transgresses the substantive limits on state action set by the … Due Process Clause.
Deshaney, 489 U.S. at 199-200 (italics omitted). 14 The Supreme Court noted that the situation of a child placed in foster care might be sufficiently
analogous to those of prisoners or mental patients to trigger the exception, but it did not decide the question. Id. at 201 n.9.
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Romeo, 457 U.S. 307 (1982) (duty to provide necessary health services to involuntarily committed patients); Estelle v. Gamble, 429 U.S. 97 (1976) (duty to provide adequate medical care to incarcerated prisoners). Under these limited circumstances, “the state may owe the incarcerated person an affirmative duty to protect against harms to his [or her] liberties inflicted by third parties.” Matican, 524 F.3d at 155-56 (2d Cir. 2008).
In determining whether a duty arises under this exception, defendants assert that they do not have “a duty under the Fourteenth Amendment to provide services, such as medications, referrals, or other discharge planning, to those who are not in its custody.” (County Defs.’ Mem. at 12) (emphasis in original); (see also Def. Kaye’s Mem. ¶¶ 18-20). Stated differently, “when an individual is not in the involuntary custody of the government, the government has no duty to provide continuing care once that person is free to find his or her own treatment.” (County Defs.’ Mem. at 13.) “And even if the Court finds, for the first time, that this right exists,” Defendants maintain that “Plaintiffs failed to allege facts showing the defendants had the requisite culpable state of mind.” (Id. at 12; see also Def. Kaye’s Mem. ¶ 24.)
Defendants recognize that neither the Supreme Court nor the Second Circuit have addressed whether the Due Process clause includes a right to post-release measures inherent in discharge planning and suggest that Deshaney “readily” defines the scope of the Fourteenth Amendment. (County Defs.’ Mem. at 14; Def. Kaye’s Mem. ¶ 20.) The County Defendants propose that because the Supreme Court held that the Fourteenth Amendment does not require states to provide citizens with particular protective services, “it follows that the State cannot be held liable under the [Equal Protection] Clause for injuries that could have been averted had it chosen to provide them.” (County Defs.’ Mem. at 14) (quoting DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 196-97 (1989)). While the Fourteenth Amendment requires a
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correctional facility to provide medical care to detainees while they are in the state’s custody – meaning that the “prisoner is unable by reason of the deprivation of liberty to care for himself” – the state’s duty does not extend beyond release. (County Defs.’ Mem. at 14; Def. Kaye’s Mem. ¶¶ 18-19) (citing Deshaney, 489 U.S. at 199-200).
The Court agrees with defendants that the Second Circuit “opinions have also focused on involuntary custody as the linchpin of any special relationship exception,”15 see Matican, 524 F.3d at 156 (collecting cases), but it notes that most often the due process claims arise in the childremoval context. See Estate of M.D. by DeCosmo v. New York, 241 F. Supp. 3d 413, 428 (S.D.N.Y. 2017). In the context of a prisoner’s release from custody, some courts have suggested that the state does maintain some, if very limited, duties.16 See, e.g., Lugo v. Senkowski, 114 F. Supp. 2d 111, 115 (N.D.N.Y. 2000) (“The State has a duty to provide medical services for an outgoing prisoner who is receiving continuing treatment at the time of his release for the period of time reasonably necessary for him to obtain treatment on his own behalf.”) (quoting Wakefield v. Thompson, 177 F.3d 1160, 1164 (9th Cir. 1999)); But see Bright v. Westmoreland Cty., 380 F.3d 729, 736-37 (3d Cir. 2004) (rejecting a Section 1983 claim by the father of a murder victim that the state “should have taken the affirmative step of arresting and/or incarcerating [the murderer] for an alleged probation violation” before the murder, because the state has no “continuing duty” to prevent a parolee “from ever committing any other crime”). While Defendant Kaye, for
15 See Lombardi v. Whitman, 485 F.3d 73, 79 n. 3 (2d Cir. 2007) (“Special relationships arise ordinarily if a government actor has assumed an obligation to protect an individual by restricting the individual’s freedom in some manner, as by imprisonment.”); Suffolk Parents of Handicapped Adults v. Wingate, 101 F.3d 818, 824 (2d Cir. 1996) (holding that plaintiffs’ claim did not fall within DeShaney exception because “the plaintiffs here … are not involuntarily institutionalized”); see also Doe v. N.Y.C. Dep’t of Soc. Servs., 649 F.2d 134, 141 (2d Cir. 1981) (holding that state is liable under Due Process Clause for abuse suffered by child in foster care, and emphasizing custodial nature of foster care placement).
16 Whether or not a release from physical custody relieves a state of the duty it had assumed may depend upon the circumstances surrounding the release. Johnson v. Florida, 348 F.3d 1334, 1346 (11th Cir. 2003) (citing Wakefield v. Thompson, 177 F.3d 1160 (9th Cir. 1999); Davis v. Brady, 143 F.3d 1021 (6th Cir. 1998); see also Marsh v. Butler County, Ala., 268 F.3d 1014, 1039 n.19 & 20 (11th Cir. 2001).
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instance, recognizes this duty, she argues that the “a duty to ensure medical care after an individual is released from custody … [m]ay be good practice, but it is not a duty imposed by the Fourteenth Amendment.” (Def. Kaye’s Mem. at ¶ 20.)
In Wakefield v. Thompson, 177 F.3d 1160 (9th Cir. 1999), the Ninth Circuit addressed this issue in holding that a parolee requiring medication beyond his release was owed an affirmative duty by the state. The court there held that “a prisoner’s ability to secure medication ‘on his own behalf’ is not restored the instant he walks through the prison gates and into the civilian world.” Id. at 1164. The court reasoned that, because it could take parolees a number of days or even weeks to obtain new medication, “the period of time during which prisoners are unable to secure medication ‘on their own behalf’ may extend beyond the period of actual incarceration.” Id. Accordingly, the court held that the state was required to provide him with enough medication to cover the period of time “reasonably necessary to permit him to consult a doctor and obtain a new supply.” Id. Find this reasoning persuasive, the court in Lugo v. Senkowski, 114 F. Supp. 2d 111, 114-15 (N.D.N.Y. 2000), held that the state’s duty extended to a plaintiff who – released on parole – was instructed by his treating physician that follow up surgery within several weeks was needed to remove the metal stent still inside his body. In Lugo, defendant was accused of preventing plaintiff from returning to the facility to have the follow up surgery performed by his treating physician.
Civil detainees, like the inmates in Wakefield and Lugo, just having been released after a stay in prison are often in no position to immediately find the alternative medical attention that they require. Here, the facts alleged support a claim the claim that plaintiffs were unable to obtain the necessary treatment “on his [and her] own behalf” and that the state had a continuing duty to protect them for a reasonable amount of time. This is particularly true of Small because the course
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of treatment started while she was incarcerated. It seems unreasonable that she, a person who had never grappled with her illness prior to detention and developed such a severe paranoia that the facility itself transferred her to a hospital for “intensive treatment,” would not medically require a discharge plan in the days and few weeks after her release. (Compl. ¶¶ 66-68.) At the time when she was released, the detention facility staff were Small’s first and only physicians. By contrast, Charles had successfully managed his condition before being detained, but he nonetheless affirmatively denied assistance upon returning to the facility and requesting interim medications. Moreover, because Charles was unable to access his health insurance upon release because he was in detention on the date he was required to renew it, (id. ¶ 54), the state’s custody placed him in a worse position than that in which he would have been had it not acted at all. See DeShaney, 489 U.S. at 200. Taking the facts as alleged by Charles and Small as true, and the specific circumstances surrounding their release, they may have been owed a limited duty of protection beyond their periods of incarceration (a year and eight months, respectively) which was not satisfied by the state. Thus, the Court finds that – at this stage in the litigation – the allegations fall within the special relationship exception.
c. Shocking the conscience State action resulting in bodily harm is not a due process violation, even if it falls within an exception to DeShaney, unless the state “action was so ‘egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.’” Pena v. DePrisco, 432 F.3d 98, 112 (2d Cir. 2005) (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 848 n. 8 (1998)). Thus, it is insufficient to allege that a state actor failed to protect an individual, even from a known danger of bodily harm or failed to warn that individual of such danger. See Collins v. City of Harket Heights, 503 U.S. 115, 125-29 (1992) (holding that there was no due process violation where the plaintiff
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alleged that the city failed to properly train or warn its employees of known dangers that resulted
in a sanitation worker’s asphyxiation).
To establish a defendant’s “deliberate indifference” to a violation of law, a plaintiff must
show that the defendant acted with a sufficiently culpable state of mind. “Until very recently, the
law applied the same test for ‘deliberate indifference’ to § 1983 claims based on underlying violations of the Eighth Amendment and the Fourteenth Amendment.”17 D.K. by L.K. v. Teams,
No. 16-CV-3246 (PAE), 2017 WL 2889509, at *10 (S.D.N.Y. July 5, 2017). “The Second Circuit,
however, in Darnell v. Pineiro, 849 F.3d 17, 33 (2d Cir. 2017), recently revisited this question, in
light of the Supreme Court’s decision in Kingsley v. Henrdrickson, – U.S. –, 135 S. Ct. 2466, 192
L.Ed.2d 416 (2015).” Id. In Darnell, the Second Circuit held that the formulation of the deliberate
indifference standard differs depending on which Amendment the federal right flows from. See
Darnell, 849 F.3d at 30.
Under the Eighth Amendment, a deliberate indifference claim requires that the defendant
state official have possessed a reckless state of mind equivalent to the “more exacting subjective
standard akin to that used in the criminal context … requir[ing] proof of … subjective awareness” of the constitutional violation.18 Darnell, 849 F.3d at 32 (citing Farmer v. Brennan, 511 U.S. 825,
836-37 (1994)) (emphasis added). In contrast, for § 1983 claims arising out of violations of the
17 The Court notes here that defendants relied on Caiozzo to claim that the standard for deliberate indifference is the same under the Fourteenth Amendment as it is under the Eighth Amendment. (See Def. Kaye’s Mem. at 7 n.3.) This rationale was overruled by the Second Circuit after defendants submitted their respective motions. Darnell v. Pineiro, 849 F.3d 17, 34-35 (2d Cir. 2017) (“Following the Supreme Court’s analysis in Kingsley, there is no basis for the reasoning in Caiozzo that the subjective intent requirement for deliberate indifference claims under the Eighth Amendment, as articulated in Farmer, must apply to deliberate indifference claims under the Fourteenth Amendment. Caiozzo is thus overruled to the extent that it determined that the standard for deliberate indifference is the same under the Fourteenth Amendment as it is under the Eighth Amendment.”)
18 The Second Circuit explained that the reason the term “subjective prong” might be a misleading description is that the Supreme Court has instructed that “deliberate indifference” roughly means “recklessness,” but “recklessness” can be defined subjectively (what a personal actually knew, and disregarded), or objectively (what a reasonable person knew, or should have known). See Darnell, 849 F.3d at 29; (citing Framer v. Brennan, 511 U.S. 825, 836-37 (1994)).
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Fourteenth Amendment, the defendant state official must have acted with objective recklessness with respect to the violation. Darnell, 849 F.3d at 35. The plaintiff must show only that “the defendant-official acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the [] detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety”; the mens rea required for a deliberate indifference claim of this nature “is defined objectively.” Id. This standard for deliberate indifference applies to any underlying violation of the due process clause, such as for maintaining unconstitutional conditions of confinement or failing to provide adequate medical care to a person in state custody, “because deliberate indifference means the same thing for each type of claim under the Fourteenth Amendment.” Id. at 33 n.9.
The Supreme Court in Estelle cautions that mere negligence is not actionable. See Frank v. Cty. of Ontario, 884 F. Supp. 2d 11, 18 (W.D.N.Y. 2012). “A [prisoner’s] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eight Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106. Rather, the plaintiff must allege conduct that is “repugnant to the conscience of mankind,” id. at 102, or “incompatible with the evolving standards of decency that mark the progress of a maturing society,” id. at 105–06. While it is very clear to this Court, then, that allegations of malpractice alone do not state a constitutional claim,19 a close and difficult question remains: where do the claims, as alleged, fall on the spectrum between mere negligence and unconstitutional deprivations?
19 Estelle, 429 U.S. at 106 n.14; Chance, 143 F.3d at 703-04; Ross, 784 F.Supp. at 44.
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Ultimately, the Court finds that, from an objective standpoint, the temporary deprivation was not sufficiently harmful to establish a constitutional violation. Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir.2003) (quoted in Goris v. Breslin, 402 Fed.Appx. 582, 585 (2d Cir.2010)); see also Rodriguez v. Ames, 224 F.Supp.2d 555, 561 (W.D.N.Y.2002) (“Although a delay in medical care can demonstrate deliberate indifference to a prisoner’s medical needs, a prisoner’s Eighth Amendment rights are violated only where the delay reflects deliberate indifference to a serious risk of health or safety, to a life-threatening or fast-degenerating condition or to some other condition of extreme pain that might be alleviated through reasonably prompt treatment”) (internal quotation omitted). Here, the deliberate indifference to medical treatment may have constituted an “egregious shock” to the contemporary conscience had Plaintiffs remained in custody. To be clear, it would make sense for prison facilities to enforce policies whereby inmates with mental illness receive a discharge plan upon release, especially where the county policy requires it. Indeed other detention facilities have made a policy decision that is more prudent and perhaps more humane to provide those who bear both physical and mental illness with a discharge plan. By way of example, and as alleged by Plaintiffs, a facility on Rikers Island “began to end its similar practice of discharging people with mental illness without any psychiatric medication or treatment referrals” “almost two decades ago.” (Compl. ¶ 6) (emphasis added). Additionally, the most recent guidance from ICE itself, the federal government agency that contracts with Orange County to confine civil immigrant detainees, requires discharge planning. (Id.) Nevertheless, the Court maintains that the claims are more akin to negligence or malpractice claims than constitutional violations.
While this result may seem harsh given the egregious character of the facts alleged, the Second Circuit has yet to determine that interruption in care of the nature alleged here ”egregiously
22

Case 7:16-cv-05527-NSR Document 68 Filed 09/29/17 Page 23 of 24
shocks” the contemporary conscience, specifically when plaintiffs are not in custody and are otherwise “free” to seek out assistance for his or herself. The Second Circuit’s decision in Lombardi is instructive here. Lombardi v. Whitman, 485 F.3d 73 (2d Cir. 2007) (considering the substantive due process claims of rescue and cleanup workers at the World Trade Center site following the 9/11 attacks). The plaintiffs in that case alleged that the defendants, federal environmental and workplace-safety officials, issued intentionally false press releases stating that the air in Lower Manhattan was safe to breathe, and that in reliance on those statements, the workers did not use protective gear. Lombardi, 485 F.3d at 75. The Second Circuit held that “regardless of whether the situation was a time-sensitive emergency, plaintiffs’ allegation of deliberate indifference did not shock the conscience.” Lombardi v. Whitman, 485 F.3d 73, 85 (2d Cir. 2007) (concluding that “[w]hen great harm is likely to befall someone no matter what a government official does, the allocation of risk may be a burden on the conscience of the one who must make such decisions, but does not shock the contemporary conscience.”).
Ultimately, because the “shocks the conscience” “requirement screens out all but the most significant constitutional violations, ‘lest the Constitution be demoted to … a font of tort law,” Matican, 524 F.3d at 155 (quoting Paul, 424 U.S. 693, 701), the Court grants defendants’ motions on this grounds.20
20 Because Plaintiffs’ claims fail upon an inquiry of the threshold issue, the Court need not address the remaining grounds for dismissal.
23

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CONCLUSION

For the foregoing reasons, the motion to dismiss is granted, and Plaintiffs' due process

claims are dismissed. The Clerk of Court is directed to terminate all pending motions and to close

this case.

Dated: September 29, 2017 White Plains, New York

SO ORDERED:
--
NELSON S. ROMAN United States District Judge

24

 
 Case 17-3506, Document 52-2, 02/20/2018, 2239638, Page1 of 42
-

IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

MICHELET CHARLES, CAROL SMALL, Plaintiffs-Appellants,
v.
ORANGE COUNTY, STATE OF NEW YORK, ORANGE COUNTY SHERIFF’S DEPARTMENT, ORANGE COUNTY DEPARTMENT OF MENTAL HEALTH, NICOLE KAYE, CLINIC DIRECTOR, ORANGE COUNTY CORRECTIONAL FACILITY, in her individual capacity, CARMEN ELIZONDO,
FORMER CLINIC DIRECTOR, ORANGE COUNTY CORRECTIONAL FACILITY, in her individual capacity,
Defendants-Appellees.

On Appeal from a Final Judgment of the United States District Court for the Southern District of New York (White Plains), No. 16-cv-5527-NSR

BRIEF OF AMERICAN PSYCHIATRIC ASSOCIATION, AMERICAN ACADEMY OF PSYCHIATRY AND THE LAW, AMERICAN PSYCHOLOGICAL ASSOCIATION, AMERICAN MEDICAL
ASSOCIATION, NATIONAL ASSOCIATION OF SOCIAL WORKERS, AMERICAN PUBLIC HEALTH ASSOCIATION, AND JUDGE DAVID L. BAZELON CENTER FOR MENTAL HEALTH LAW AS AMICI CURIAE
IN SUPPORT OF PLAINTIFFS-APPELLANTS AND REVERSAL

IRA A. BURNIM JUDGE DAVID L. BAZELON CENTER
FOR MENTAL HEALTH LAW 1101 15th Street, N.W., Suite 1212 Washington, D.C. 20005 (202) 467-5730
Counsel for Judge David L. Bazelon
Center for Mental Health Law
February 20, 2018

AARON M. PANNER KELLOGG, HANSEN, TODD,
FIGEL & FREDERICK, P.L.L.C. 1615 M Street, N.W., Suite 400 Washington, D.C. 20036 (202) 326-7900
Counsel for Amici Curiae

Case 17-3506, Document 52-2, 02/20/2018, 2239638, Page2 of 42
TABLE OF CONTENTS Page
TABLE OF AUTHORITIES .................................................................................... ii
STATEMENT OF AMICI CURIAE ..........................................................................1
SUMMARY OF ARGUMENT .................................................................................6
ARGUMENT .............................................................................................................9
I. DISCHARGE PLANNING IS ESSENTIAL TO MINIMALLY ADEQUATE MENTAL HEALTH CARE FOR INCARCERATED INDIVIDUALS .............................................................................................10
II. IT IS WIDELY RECOGNIZED THAT DISCHARGE PLANNING IS AN ESSENTIAL PART OF THE STANDARD OF CARE FOR CORRECTIONAL INSTITUTIONS AND DETENTION FACILITIES ..........................................................................19
III. RESEARCH SHOWS THAT DISCHARGE PLANNING ENHANCES POST-RELEASE OUTCOMES FOR INDIVIDUALS WITH SERIOUS MENTAL ILLNESS .............................24
CONCLUSION ........................................................................................................31
CERTIFICATE OF COMPLIANCE

Case 17-3506, Document 52-2, 02/20/2018, 2239638, Page3 of 42

TABLE OF AUTHORITIES

Page(s)

CASES

Bowring v. Godwin, 551 F.2d 44 (4th Cir. 1977) ....................................................11

Clark-Murphy v. Foreback, 439 F.3d 280 (6th Cir. 2006) ......................................11

DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189 (1989) ............................................................................................................. 11

Estelle v. Gamble, 429 U.S. 97 (1976) ....................................................................11

Farmer v. Brennan, 511 U.S. 825 (1994)................................................................11

Greason v. Kemp, 891 F.2d 829 (11th Cir. 1990) ...................................................11

Wakefield v. Thompson, 177 F.3d 1160 (9th Cir. 1999)..........................................12

Youngberg v. Romeo, 457 U.S. 307 (1982) .............................................................11

CONSTITUTION AND RULES U.S. Const.:
Amend. VIII...................................................................................................11 Amend. XIV ..................................................................................................11 Fed. R. App. P. 29(a)(4)(E)........................................................................................1

OTHER MATERIALS
Am. Bar Ass’n, Crim. Justice Sec., State Policy Implementation Project (2011), https://www.americanbar.org/content/dam/ aba/administrative/criminal_justice/spip_ handouts.authcheckdam.pdf ..........................................................................24

ii

Case 17-3506, Document 52-2, 02/20/2018, 2239638, Page4 of 42
Am. Med. Ass’n:
Fundamental Elements of the Physician-Patient Relationship, Op. E-10.01 (1990)..................................................................19
Standards of Care for Inmates of Correctional Facilities, Policy Statement H-430.997 (2012), https://policysearch.amaassn.org/policyfinder/detail/Prisons?uri=%2FAMADoc%2FH OD.xml-0-3784.xml ................................................................................15, 20
Terminating a Patient Physician Relationship, Op. 1.1.5, https://www.ama-assn.org/delivering-care/terminatingpatient-physician-relationship .......................................................................14
Am. Psychiatric Ass’n:
Position Statement on Psychiatric Services in Jails and Prisons (1988) .................................................................................................5
Psychiatric Services in Correctional Facilities (3d ed. 2016) ..........................................................................13, 14, 15, 16, 19
Psychiatric Services in Jails and Prisons (2d ed. 2000) ...................10, 13, 20
Am. Psychological Ass’n, Ethical Principles of Psychologists and Code of Conduct (2017), http://www.apa.org/ethics/ code/index.aspx .............................................................................................14
Am. Pub. Health Ass’n, Standards for Health Services in Correctional Institutions (2003)....................................................................19
Jacques Baillargeon et al., Psychiatric Disorders and Repeat Incarcerations: The Revolving Prison Door, 166 Am. J. Psychiatry 103 (2009)....................................................................................25
Ingrid A. Binswanger et al., Release from Prison – A High Risk of Death for Former Inmates, 356 New Eng. J. Med. 157 (2007) ............................................................................................................. 17
Bur. of Prisons, Treatment and Care of Inmates with Mental Illness, Inmate and Custody Management Policy 5310.16 (May 1, 2014), https://www.bop.gov/policy/progstat/ 5310_16.pdf ...................................................................................................21
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Justin Carmody, Nat’l Ass’n of Counties, Reentry for Safer Communities: Effective County Practices in Jail to Community Transition Planning for Offenders with Mental Health and Substance Abuse Disorders (2008), https://ojp.gov/ newsroom/testimony/2009/reentrysafecommunity.pdf .................................23
Edward Chesney et al., Risks of All-Cause Suicide Mortality in Mental Disorders: A Meta-Review, 13 World Psychiatry 153 (2014) ............................................................................................................. 18
David A. D’Amora et al., Achieving Positive Outcomes for JusticeInvolved People with Behavioural Health Disorders, in Care of the Mentally Disordered Offender in the Community 77 (Alec Buchanan & Lisa Wootton eds., 2d ed. 2017).....................................12
Dep’t of Veterans Aff., Veterans Health Admin., Directive 1162.06 (Sept. 27, 2017), https://www.va.gov/vhapublications/ ViewPublication.asp?pub_ID=5473 .............................................................. 19
Paula M. Ditton, Bur. of Justice Stat., Mental Health and Treatment of Inmates and Probationers (July 1999), https://www.bjs.gov/content/pub/pdf/mhtip.pdf .............................................9
Henry Dlugacz, Community Re-entry Preparation/Coordination, in Oxford Textbook of Correctional Psychiatry 76 (Robert L. Trestman et al. eds., 2015) ...........................................................13, 15, 16, 18, 19, 24
Henry A. Dlugacz & Erik Roskes, Clinically Oriented Reentry Planning, in Handbook of Correctional Mental Health 395 (Charles L. Scott ed., 2d ed. 2010) ..........................................................14, 25
Jeffrey Draine & Daniel B. Herman, Critical Time Intervention for Reentry from Prison for Persons with Mental Illness, 58 Psychiatric Servs. 1577 (2007).................................................................24
Joel Dvoskin & Melody C. Brown, Jails and Prisons, in Oxford Textbook of Correctional Psychiatry 31 (Robert L. Trestman et al. eds., 2015).......................................................................................16, 17
iv

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Alexandra Gates et al., Kaiser Commission on Medicaid and the Uninsured, Health Coverage and Care for the Adult Criminal Justice-Involved Population (2014), https://www.kff.org/uninsured/issue-brief/health-coverageand-care-for-the-adult-criminal-justice-involved-population/ ......................16
Brigid K. Grabert et al., Expedited Medicaid Enrollment, Service Use, and Recidivism at 36 Months Among Released Prisoners with Severe Mental Illness, 68 Psychiatric Servs. 1079 (2017)..............................................................................................16, 29
Handbook of Correctional Mental Health (Charles L. Scott ed., 2d ed. 2010) ...................................................................................................13
Stephanie Hartwell et al., Predictors of Accessing Substance Abuse Services Among Individuals with Mental Disorders Released from Correctional Custody, 9 J. Dual Diagnosis 11 (2013)..........................18
Sarra L. Hedden et al., Substance Abuse and Mental Health Servs. Admin., Behavioral Health Trends in the United States: Results from the 2014 National Survey on Drug Use and Health (Sept. 2015), https://www.samhsa.gov/data/sites/ default/files/NSDUH-FRR1-2014/NSDUH-FRR1-2014.pdf .......................18
Steven K. Hoge, Providing Transition and Outpatient Services to the Mentally Ill Released from Correctional Institutions, in Public Health Behind Bars: From Prisons to Communities 461 (Robert Greifinger ed., 2007) ...........................................................13, 26
Steven K. Hoge et al., Am. Psychiatric Ass’n, Task Force Report: Outpatient Services for the Mentally Ill Involved in the Criminal Justice System (2009), https://www.psychiatry.org/ psychiatrists/search-directories-databases/library-andarchive/task-force-reports ............................................................15, 18, 26, 27
Immigr. & Customs Enf’t, Performance-Based National Detention Standards, pt. 4.3 (2011; rev. Dec. 2016), https://www.ice.gov/ doclib/detention-standards/2011/4-3.pdf ....................................................... 21
Doris J. James & Lauren E. Glaze, Bur. of Justice Stat., Mental Health Problems of Prison and Jail Inmates (Sept. 2006)........................9, 12
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Joint Commission, 2009 National Patient Safety Goals Behavioral Health Care Program (2008) ........................................................................12
Mohamedu F. Jones, Formative Case Law and Litigation, in Oxford Textbook of Correctional Psychiatry 13 (Robert L. Trestman et al. eds., 2015).............................................................................22
KiDeuk Kim et al., Urban Inst., The Processing and Treatment of Mentally Ill Persons in the Criminal Justice System (Mar. 2015) ................................................................................................................9
Sheryl Kubiak et al., Diversion Pilots: Long Term Outcomes, in Mental Health Diversion Council: Progress Report Appendices, http://www.michigan.gov/documents/ mentalhealth/Diversion_Council_Progress_2018_Appendices _611674_7.pdf ...............................................................................................29
Nancy La Vigne et al., Urban Inst., Justice Pol’y Ctr., Release Planning for Successful Reentry: A Guide for Corrections, Service Providers, and Community Groups (2008), https://www.urban.org/sites/default/files/publication/32056/ 411767-Release-Planning-for-Successful-Reentry.PDF.........................22, 23
Faith Lagay, Right To Choose Patients and Duty Not To Neglect, AMA J. Ethics (2001), http://journalofethics.ama-assn.org/ 2001/09/code1-0109.html .............................................................................. 14
Sungwoo Lim et al., Risks of Drug-Related Death, Suicide, and Homicide During the Immediate Post-Release Period Among People Released from New York City Jails, 20012005, 175 Am. J. Epidemiol. 519 (2012) ......................................................17
Kamala Mallik-Kane & Christy A. Visher, Urban Inst., Justice Pol’y Ctr., Health and Prisoner Reentry: How Physical, Mental, and Substance Abuse Conditions Shape the Process of Reintegration (Feb. 2008), https://www.urban.org/sites/ default/files/publication/31491/411617-Health-and-PrisonerReentry.PDF ..................................................................................................26
vi

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Jeffrey L. Metzner:
An Introduction to Correctional Psychiatry: Part I, 25 J. Am. Acad. Psychiatry & L. 375 (1997) ................................................10
An Introduction to Correctional Psychiatry: Part II, 25 J. Am. Acad. Psychiatry & L. 571 (1997) ................................................10
An Introduction to Correctional Psychiatry: Part III, 26 J. Am. Acad. Psychiatry & L. 107 (1998) ................................................10
Joseph P. Morrissey et al., Medicaid Enrollment and Mental Health Service Use Following Release of Jail Detainees with Severe Mental Illness, 57 Psychiatric Servs. 809 (2006) ......................30
Joseph P. Morrissey et al., The Role of Medicaid Enrollment and Outpatient Service Use in Jail Recidivism Among Persons with Severe Mental Illness, 58 Psychiatric Servs. 794 (2007) ......................29
Nat’l Ass’n of Soc. Workers Policy Statements, Mental Health, in Social Work Speaks 217 (10th ed. 2015).....................................................3
Nat’l Comm’n on Corr. Health Care:
Standards for Mental Health Services in Correctional Facilities (2008).......................................................................................10, 13
Standards for Health Services in Jails (2014)...............................................19
New York City Dep’t of Health and Mental Hygiene, New York/New York III Supportive Housing Evaluation: Interim Utilization and Cost Analysis (2013), https://shnny.org/ images/uploads/NY-NY-III-Interim-Report.pdf ...........................................30
Kristen C. Ochoa et al., Disparities in Justice and Care: Persons with Severe Mental Illness in the U.S. Immigration Detention System, 38 J. Am. Acad. Psychiatry & L. 392 (2010) ............................................................................................................... 9
Fred Osher et al., A Best Practice Approach to Community Reentry from Jails for Inmates with Co-Occurring Disorders: The APIC Model, 40 Crime & Delinq. 79 (2002) ..........................................15, 16
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Debra A. Pinals, Forensic Services, Public Mental Health Policy, and Financing: Charting the Course Ahead, 42 J. Am. Acad. Psychiatry & L. 7 (2014).....................................................................13
Debra A. Pinals & Doris A. Fuller, Beyond Beds: The Vital Role of a Full Continuum of Psychiatric Care (Nat’l Ass’n of State Mental Health Program Directors 2017), https://nasmhpd.org/ sites/default/files/TAC.Paper_.1Beyond_Beds.pdf ....................................... 12
John Roman & Aaron Chalfin, Urban Inst., Justice Pol’y Ctr., Does It Pay To Invest in Reentry Programs for Jail Inmates? (2006), https://www.urban.org/sites/default/files/ roman_chalfin.pdf .......................................................................................... 24
John Roman et al., Urban Inst., Justice Pol’y Ctr., Impact and CostBenefit Analysis of the Maryland Reentry Partnership Initiative (2007), https://www.urban.org/research/publication/impactand-cost-benefit-analysis-maryland-reentry-partnershipinitiative/view/full_report ........................................................................27, 28
David A. Smelson et al., The MISSION Treatment Manual: Maintaining Independence and Sobriety Through Systems Integration, Outreach, and Networking (2d ed.), http://www.missionmodel.org/manuals-1/ ....................................................25
Ram Subramanian et al., Vera Inst. of Justice, Incarceration’s Front Door: The Misuse of Jails in America (Feb. 2015), https://www.vera.org/publications/incarcerations-front-doorthe-misuse-of-jails-in-america ......................................................................... 9
Ole J. Thienhaus & Melissa Piasecki, Correctional Psychiatry: Practice Guidelines and Strategies (2007)....................................................24
U.S. Dep’t of Justice, Nat’l Inst. of Corr., Correctional Health Care: Guidelines for the Management of an Adequate Delivery System (2001), https://www.ncchc.org/filebin/Publications/ CHC-Guidelines.pdf ................................................................................20, 21
Richard A. Van Dorn et al., Effects of Outpatient Treatment on Risk of Arrest of Adults with Serious Mental Illness and Associated Costs, 64 Psychiatric Servs. 856 (2013) ...............................17, 30
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Case 17-3506, Document 52-2, 02/20/2018, 2239638, Page10 of 42
Lois A. Ventura et al., Case Management and Recidivism of Mentally Ill Persons Released from Jail, 49 Psychiatric Servs. 1330 (1998) ............................................................................................................. 30
Emily A. Wang et al., Discharge Planning and Continuity of Health Care: Findings from the San Francisco County Jail, 98 Am. J. Pub. Health 2182 (2008) ............................................................................24
Emily A. Wang et al., Engaging Individuals Recently Released from Prison into Primary Care: A Randomized Trial, 102 Am. J. Pub. Health 22 (2012) ........................................................................25
Timothy Williams, Jails Have Become Warehouses for the Poor, Ill and Addicted, a Report Says, N.Y. Times, Feb. 11, 2015 ..........................9
Vondie Woodbury & Peter J. Sartorius, Michigan Pathways Project Links Ex-Prisoners to Medical Services, Contributing to a Decline in Recidivism (Agency for Healthcare Research and Quality 2009; updated 2014), https://innovations.ahrq.gov/ profiles/michigan-pathways-project-links-ex-prisoners-medicalservices-contributing-decline ......................................................................... 25
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STATEMENT OF AMICI CURIAE1 The American Psychiatric Association, with more than 37,800 members, is the nation’s leading organization of physicians who specialize in psychiatry. Members of the American Psychiatric Association are physicians engaged in treatment, research, and forensic activities, and many members regularly perform roles in the criminal justice system. In particular, the American Psychiatric Association and its members have been involved for many years in developing best practices protocols and programs for reintegrating incarcerated individuals with mental illness back into the community, including through development of discharge planning best practices protocols. The American Psychiatric Association has participated as amicus curiae in numerous cases in the United States Supreme Court and in the courts of appeals. The American Academy of Psychiatry and the Law (“AAPL”), with more than 1,900 psychiatrist members, is the leading national organization of physicians who specialize in forensic psychiatry. AAPL is dedicated to excellence in practice, teaching, and research in forensic psychiatry. AAPL members evaluate defendants in all aspects of the criminal justice system and provide best practice protocols and
1 Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E), counsel for amici represent that no counsel for a party authored this brief in whole or in part and that no person or entity, other than amici or their counsel, made a monetary contribution to the preparation or submission of this brief. A motion for leave to file is being filed concurrently with this brief.

Case 17-3506, Document 52-2, 02/20/2018, 2239638, Page12 of 42
treatment for persons in correctional facilities. AAPL has participated as amicus curiae in numerous cases before the United States Supreme Court and the courts of appeals.
The American Psychological Association is the leading association of psychologists in the United States. A non-profit scientific and professional organization, the American Psychological Association has approximately 115,000 members and affiliates, including the vast majority of psychologists holding doctoral degrees from accredited universities in the United States. Among the American Psychological Association’s major purposes are to increase and disseminate knowledge regarding human behavior, to advance psychology as a science and profession, and to foster the application of psychological learning to important human concerns, thereby promoting health, education, and welfare. The American Psychological Association has participated as amicus curiae in more than 150 cases in the United States Supreme Court and in federal and state courts of appeal nationwide.
The American Medical Association (“AMA”) is the largest professional association of physicians, residents, and medical students in the United States. Additionally, through state and specialty medical societies and other physician groups seated in its House of Delegates, substantially all U.S. physicians, residents, and medical students are represented in the AMA’s policy-making
2

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process. AMA members practice in every state and in every medical specialty. The AMA was founded in 1847 to promote the science and art of medicine and the betterment of public health, and these remain its core purposes.
Established in 1955, the National Association of Social Workers (“NASW”) is the largest association of professional social workers in the United States with about 120,000 members in 55 chapters. The New York State Chapter has 7,200 members. The New York City Chapter has 6,000 members. In alignment with its mission to ensure the efficacy and quality of practicing social workers, NASW promulgates professional standards, provides resources, conducts research, and develops policy statements on issues of importance to the social work profession. Consistent with those statements, NASW believes incarcerated individuals should be provided full access to mental health services, including screening, assessment, medication counseling, and discharge planning.2
The American Public Health Association (“APHA”) champions the health of all people and all communities and strengthens the profession of public health, shares the latest research and information, promotes best practices, and advocates for public health issues and policies grounded in research. APHA represents 25,000 individual members and is the only organization that combines a
2 Nat’l Ass’n of Soc. Workers Policy Statements, Mental Health, in Social Work Speaks 217, 218 (10th ed. 2015).
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140-plus-year perspective, a broad-based member community, and the ability to influence federal policy to improve the public’s health. As the nation’s leading public health organization, APHA is at the forefront of efforts to advance prevention, reduce health disparities, and promote wellness, including in the areas of mental health and access to quality health care and other health care delivery services.
The Judge David L. Bazelon Center for Mental Health Law is a national public interest organization founded in 1972 to advance the rights of individuals with mental disabilities. The Center advocates for laws and policies that provide people with mental illness or intellectual disability the opportunities and resources they need to participate with dignity and fully in their communities. Its litigation and policy advocacy advances rights to fair treatment, adequate mental health care, and community-based services. The Center has long worked to ensure that incarcerated individuals receive minimally adequate mental health treatment, including connections to community-based services that can meet their needs upon release.
These organizations and their members have dedicated substantial effort and resources to studying, analyzing, and developing practices to improve correctional mental health care and longstanding commitments to ensure that individuals with mental illness in correctional and detention facilities have access to adequate care.
4

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See, e.g., Am. Psychiatric Ass’n, Position Statement on Psychiatric Services in Jails and Prisons (1988). Part of minimally adequate mental health care – a civil right guaranteed to incarcerated individuals under the Constitution – is discharge planning to assist individuals with serious mental illness in obtaining mental health care services following release from confinement.
5

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SUMMARY OF ARGUMENT This case presents the question whether the government owes a duty, under the United States Constitution, to provide discharge planning – including an interim supply of needed medications and assistance in gaining access to mental health resources after release from confinement – to individuals with serious mental illness held in government custody. The district court noted that incarcerated individuals “just having been released after a stay in prison are often in no position to immediately find the alternative medical attention that they require” and that appellants “may have been owed a limited duty of protection beyond their periods of incarceration.” A183-84. But the district court ruled that “the temporary deprivation” alleged in the complaint “was not sufficiently harmful to establish a constitutional violation.” A187. It observed that, “[w]hile this result may seem harsh given the egregious character of the facts alleged,” it could not be said that “interruption in care of the nature alleged here ‘egregiously shocks’ the contemporary conscience, specifically when plaintiffs are not in custody and are otherwise ‘free’ to seek out assistance.” A187-88. Amici do not take a position on the ultimate question whether appellants have a valid claim under applicable standards. But, to the extent the district court’s judgment rests on the proposition that discharge planning for individuals with serious mental illness is not integral to minimally adequate mental health care in
6

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the correctional setting, that proposition is incorrect. On the contrary, any evaluation of a constitutional claim in this context must give adequate weight to the consensus among mental health professionals that appropriate discharge planning is a critical part of the minimally adequate mental health care that the Constitution requires.
I. Professionals with expertise in correctional mental health care are in uniform agreement that discharge planning is an essential component of mental health care for incarcerated individuals with serious mental illness. Continuity of care is critical to effective mental health treatment. Gaps in care, including cessation of medication or periods without access to any mental health professional, can cause dangerous deterioration of a patient’s condition. Accordingly, when an individual with serious mental illness is released into the community following incarceration, minimally adequate care requires that some provision be made to assist the individual in obtaining treatment during a transitional period. Failure to provide such discharge planning places released inmates at risk of serious harm, including risk of death.
II. Discharge planning is well established as part of the basic standard of care at correctional or detention facilities. Major organizations of mental health professionals include discharge planning among the requirements for adequate care. Over the past decade, a growing number of facilities have implemented
7

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discharge planning as a standard part of their mental health services. And the Department of Justice and Immigration and Customs Enforcement require discharge planning in all their facilities and those operating under their auspices; the majority of states likewise require mental health care discharge planning in some form for correctional and detention centers.
III. Research shows that effective discharge planning can reduce rates of drug or alcohol problems, reduce recidivism, and lead to better mental health outcomes. Provision of adequate transitional services thus improves outcomes for inmates with mental illness and provides benefits to their communities as well.
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ARGUMENT
Individuals with mental illness are disproportionately represented in the
incarcerated population. A Bureau of Justice Statistics survey estimates that 16.2%
of state prisoners have a significant mental illness, along with 7.4% of federal
prisoners and 16.3% of jail inmates.3 Other, more recent surveys have found even
higher incidence.4 The same is true for detained immigrants.5 As a result,
hundreds of thousands of individuals with mental illness are currently incarcerated
in our nation’s prisons, jails, and other detention facilities.
3 Paula M. Ditton, Bur. of Justice Stat., Mental Health and Treatment of Inmates and Probationers 1 (July 1999), https://www.bjs.gov/content/pub/ pdf/mhtip.pdf; see also Doris J. James & Lauren E. Glaze, Bur. of Justice Stat., Mental Health Problems of Prison and Jail Inmates 1 (Sept. 2006) (“James & Glaze, Mental Health Problems”) (finding that “more than half of all prison and jail inmates had a mental health problem”).
4 KiDeuk Kim et al., Urban Inst., The Processing and Treatment of Mentally Ill Persons in the Criminal Justice System 8 (Mar. 2015); see Timothy Williams, Jails Have Become Warehouses for the Poor, Ill and Addicted, a Report Says, N.Y. Times, Feb. 11, 2015, at A19 (number of people housed in jails on any given day increased from 224,000 in 1983 to 731,000 in 2013) (citing Ram Subramanian et al., Vera Inst. of Justice, Incarceration’s Front Door: The Misuse of Jails in America 12-13 (Feb. 2015), https://www.vera.org/publications/incarcerationsfront-door-the-misuse-of-jails-in-america).
5 Kristen C. Ochoa et al., Disparities in Justice and Care: Persons with Severe Mental Illness in the U.S. Immigration Detention System, 38 J. Am. Acad. Psychiatry & L. 392, 393 (2010) (finding rates of serious mental illness between 4% and 15% in the population of immigration detainees).
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As demand for mental health care services in correctional facilities has
dramatically grown, mental health professionals have developed guidelines to
assist correctional officials and mental health care professionals in the provision of
adequate mental health care in prisons and jails.6 Those sources recognize the
distinction between essential requirements for minimally adequate care and those
standards that are fairly characterized as important or desirable.7 That literature
and those standards thus provide an appropriate framework for evaluating claims
that mental health care provided to incarcerated individuals meets minimal
constitutional standards.
I. DISCHARGE PLANNING IS ESSENTIAL TO MINIMALLY ADEQUATE MENTAL HEALTH CARE FOR INCARCERATED INDIVIDUALS Discharge planning for individuals with serious mental illness is part of the
minimally adequate mental health care that the Constitution requires for
individuals in custody of the state.
6 See, e.g., Nat’l Comm’n on Corr. Health Care, Standards for Mental Health Services in Correctional Facilities (2008) (“NCCHC Standards”); Am. Psychiatric Ass’n, Psychiatric Services in Jails and Prisons (2d ed. 2000) (“APA, Jails and Prisons”); Jeffrey L. Metzner, An Introduction to Correctional Psychiatry: Part I, 25 J. Am. Acad. Psychiatry & L. 375 (1997); Jeffrey L. Metzner, An Introduction to Correctional Psychiatry: Part II, 25 J. Am. Acad. Psychiatry & L. 571 (1997); Jeffrey L. Metzner, An Introduction to Correctional Psychiatry: Part III, 26 J. Am. Acad. Psychiatry & L. 107 (1998).
7 See generally NCCHC Standards (distinguishing between standards that are “essential” and those that are “important”).
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A. In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court held that Eighth Amendment principles “establish the government’s obligation to provide medical care for those whom it is punishing by incarceration.” Id. at 103; see also Farmer v. Brennan, 511 U.S. 825, 828, 832 (1994). That obligation “extend[s] . . . beyond the Eighth Amendment setting”: the Fourteenth Amendment’s Due Process Clause requires the State to provide involuntarily committed mental patients with adequate “ ‘food, shelter, clothing, and medical care.’” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 199 (1989) (quoting Youngberg v. Romeo, 457 U.S. 307, 315 (1982)). As then-Chief Justice Rehnquist explained, “when the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs” – including “medical care” – “it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.” Id. at 200.
The constitutional obligation to provide adequate medical care includes, of course, the obligation to provide adequate mental health care. See, e.g., ClarkMurphy v. Foreback, 439 F.3d 280, 292 (6th Cir. 2006); Greason v. Kemp, 891 F.2d 829, 834 (11th Cir. 1990) (Tjoflat, C.J.); Bowring v. Godwin, 551 F.2d 44, 47 (4th Cir. 1977) (“We see no underlying distinction between the right to medical care for physical ills and its psychological or psychiatric counterpart.”). And, in
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Wakefield v. Thompson, 177 F.3d 1160 (9th Cir. 1999), the Ninth Circuit held that this right imposes an obligation on correctional facilities to provide inmates with a sufficient supply of interim medication to mitigate the risk of gaps in their care.
B. For individuals with serious mental illness, continuity of care is essential to effective treatment.8 Treatment of serious mental illnesses, including psychotic disorders, major depression, and bipolar disorder – all of which are common in the correctional setting9 – requires access to needed medications, regular interaction with a mental health professional, and the ability to access emergency mental health services when needed.
There is broad consensus that minimally adequate mental health care for those in state confinement requires a program for screening and evaluating individuals in custody at the time of intake to identify those who require mental health treatment; implementing a program for provision of treatment; ensuring adequate staffing; maintaining accurate and confidential records; administering
8 See Joint Commission, 2009 National Patient Safety Goals Behavioral Health Care Program (2008); David A. D’Amora et al., Achieving Positive Outcomes for Justice-Involved People with Behavioural Health Disorders, in Care of the Mentally Disordered Offender in the Community 77 (Alec Buchanan & Lisa Wootton eds., 2d ed. 2017); Debra A. Pinals & Doris A. Fuller, Beyond Beds: The Vital Role of a Full Continuum of Psychiatric Care (Nat’l Ass’n of State Mental Health Program Directors 2017), https://nasmhpd.org/sites/default/files/ TAC.Paper_.1Beyond_Beds.pdf.
9 See James & Glaze, Mental Health Problems at 2.
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necessary medications with adequate supervision and periodic evaluation; and
identifying, treating, and supervising individuals with suicidal tendencies.10
Minimally adequate care also requires implementing measures designed to assist
individuals with serious mental illness to transition to needed care following
release.11
Reentry planning, also known as discharge planning, is intended to reduce
the risk that needed care will be interrupted following release and is critical in
ensuring continuity of mental health care for inmates with severe mental illness.12
10 See generally Handbook of Correctional Mental Health (Charles L. Scott ed., 2d ed. 2010); APA, Jails and Prisons; NCCHC Standards.
11 Henry Dlugacz, Community Re-entry Preparation/Coordination, in Oxford Textbook of Correctional Psychiatry 76 (Robert L. Trestman et al. eds., 2015) (“Dlugacz, Community Re-entry Preparation/Coordination”).
12 Am. Psychiatric Ass’n, Psychiatric Services in Correctional Facilities 35-36 (3d ed. 2016) (“APA, Correctional Facilities”) (describing the essential services that correctional facilities must offer to detainees or inmates for community reentry and transfer planning); APA, Jails and Prisons at 18 (“[T]imely and effective discharge planning is essential to continuity of care and an integral part of adequate mental health treatment.”); Steven K. Hoge, Providing Transition and Outpatient Services to the Mentally Ill Released from Correctional Institutions, in Public Health Behind Bars: From Prisons to Communities 461 (Robert Greifinger ed., 2007) (“Hoge, Transition and Outpatient Services”); Dlugacz, Community Re-entry Preparation/Coordination at 76 (“Re-entry planning for people with serious mental illness should be a primary focus of correctional mental health care that is integrated into the treatment function, not an afterthought to be considered only as release is imminent.”); Debra A. Pinals, Forensic Services, Public Mental Health Policy, and Financing: Charting the Course Ahead, 42 J. Am. Acad. Psychiatry & L. 7, 13 (2014).
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Providing for such continuity is not merely incidental to mental health care, but is instead integral to it. A mental health professional who must discontinue a patient’s treatment has an ethical duty to ensure that some provision is made for continuing care.13 There is an analogous duty on the part of a correctional institution to avoid an unreasonable risk that an inmate will lose access to care upon release.14
Discharge planning must include, at a minimum, a discharge plan for an inmate with serious mental illness that accounts for the inmate’s medical needs. This includes providing a sufficient quantity of medication to allow continuous use,15 conducting a pre-discharge assessment,16 establishing appointments with the
13 See Am. Med. Ass’n, Terminating a Patient Physician Relationship, Op. 1.1.5, https://www.ama-assn.org/delivering-care/terminating-patient-physicianrelationship; Faith Lagay, Right To Choose Patients and Duty Not To Neglect, 3 AMA J. Ethics (2001), http://journalofethics.ama-assn.org/2001/09/code10109.html; Am. Psychological Ass’n, Ethical Principles of Psychologists and Code of Conduct § 3.12 (2017), http://www.apa.org/ethics/code/index.aspx (noting that psychologists should “make reasonable efforts to plan for facilitating services in the event that psychological services are interrupted”).
14 Henry A. Dlugacz & Erik Roskes, Clinically Oriented Reentry Planning, in Handbook of Correctional Mental Health 395, 401 (Charles L. Scott ed., 2d ed. 2010) (“Dlugacz & Roskes, Clinically Oriented Reentry Planning”).
15 Id. 16 APA, Correctional Facilities at 35-36.
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community providers,17 and ensuring medical records are effectively transferred to
community providers.18
In some circumstances, a discharge plan should also address post-release
housing. Homelessness is a major and ongoing problem for those with serious
mental illness.19 Without any provision for housing in the days immediately
following release, an inmate is much more likely to suffer adverse health
consequences.20 An effective discharge plan should also include an approach for
17 Id.; see also Am. Med. Ass’n, Standards of Care for Inmates of Correctional Facilities, Policy Statement H-430.997 (2012) (“AMA, Standards of Care”), https://policysearch.ama-assn.org/policyfinder/detail/ Prisons?uri=%2FAMADoc%2FHOD.xml-0-3784.xml (“Our AMA believes that correctional and detention facilities should provide medical, psychiatric, and substance misuse care that meets prevailing community standards, including appropriate referrals for ongoing care upon release from the correctional facility in order to prevent recidivism.”). For some inmates, connecting them with Assertive Community Treatment or peer services is essential for ensuring continuity of care.
18 APA, Correctional Facilities at 35-36. 19 Steven K. Hoge et al., Am. Psychiatric Ass’n, Task Force Report: Outpatient Services for the Mentally Ill Involved in the Criminal Justice System 4 (2009) (“Hoge et al., Task Force Report”), https://www.psychiatry.org/ psychiatrists/search-directories-databases/library-and-archive/task-force-reports (highlighting the fact that mentally ill inmates in the correctional system have “roughly double” the rate of homelessness as the rest of the inmate population); see also Dlugacz, Community Re-entry Preparation/Coordination at 77 (noting that homelessness among former inmates is higher than average and that such trends are exacerbated for individuals with mental illness, substance abuse, or both). 20 Fred Osher et al., A Best Practice Approach to Community Reentry from Jails for Inmates with Co-Occurring Disorders: The APIC Model, 40 Crime & Delinq. 79, 86 (2002). Osher and colleagues state that those providing discharge
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reconnecting the inmate with needed safety-net programs such as Medicaid, the
Social Security Supplemental Security Income program (SSI), and welfare
support.21 Most inmates with serious mental illness will only be able to access
mental health services in the community through programs such as Medicaid, and
are similarly likely to be able to pay for essentials such as housing only with the
help of income support programs.22
An appropriate discharge plan must be tailored to the individual inmate or
detainee, identify his or her clinical and social needs, and include coordination
with community care providers to ensure that the inmate has access to medical and
social service resources after release.23 The GAINS Center for Behavioral Health
planning must go beyond referring an inmate to a shelter and instead work with community service providers to establish supportive-housing options. Id. at 86-87.
21 Joel Dvoskin & Melody C. Brown, Jails and Prisons, in Oxford Textbook of Correctional Psychiatry 31, 33-34 (Robert L. Trestman et al. eds., 2015) (“Dvoskin & Brown, Jails and Prisons”); see also Brigid K. Grabert et al., Expedited Medicaid Enrollment, Service Use, and Recidivism at 36 Months Among Released Prisoners with Severe Mental Illness, 68 Psychiatric Servs. 1079 (2017) (finding that providing expedited Medicaid enrollment for former inmates with serious mental illness increases the use of community mental health and other medical services); Alexandra Gates et al., Kaiser Commission on Medicaid and the Uninsured, Health Coverage and Care for the Adult Criminal Justice-Involved Population (2014), https://www.kff.org/uninsured/issue-brief/health-coverage-andcare-for-the-adult-criminal-justice-involved-population/.
22 Osher et al., 40 Crime & Delinq. at 89. 23 See APA, Correctional Facilities at 35-36; see also, e.g., Dlugacz, Community Re-entry Preparation/Coordination at 79 (“The re-entry plan will be influenced by the person’s illness, connection with mental health treatment while
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and Justice Transformation, for example, published a best practices model for discharge planning more than a decade ago. Its pragmatic approach calls for: (1) assessing the inmate’s post-release needs and public safety risks; (2) planning for the treatment and social services to address those needs, including identifying the community and correctional programs that will provide post-release services; and (4) coordinating the transition to those providers.
C. Failure to provide discharge planning can place individuals with serious mental illness at risk of grave harm. In the two weeks following discharge, former inmates’ risk of death is nearly 13 times higher than that for an average person; drug overdose and suicide are the two leading causes of such deaths.24 This is of particular concern with respect to discharged inmates suffering from serious mental illness, as they have higher rates of both drug abuse and suicidal
incarcerated, and ability to function in the community, as well as the model of service delivery used and the size, location, and detention function of the facility.”); see also Dvoskin & Brown, Jails and Prisons at 33-34; accord Richard A. Van Dorn et al., Effects of Outpatient Treatment on Risk of Arrest of Adults with Serious Mental Illness and Associated Costs, 64 Psychiatric Servs. 856, 856 (2013).
24 Ingrid A. Binswanger et al., Release from Prison – A High Risk of Death for Former Inmates, 356 New Eng. J. Med. 157, 161-62 (2007); see also Sungwoo Lim et al., Risks of Drug-Related Death, Suicide, and Homicide During the Immediate Post-Release Period Among People Released from New York City Jails, 2001-2005, 175 Am. J. Epidemiol. 519 (2012).
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thoughts and behaviors than average.25 According to a recent survey by the
Substance Abuse and Mental Health Services Administration, individuals with
serious mental illness are almost three times as likely as the general population
(23.5% vs. 8.4%) to have a substance abuse disorder.26 Another study found that
suicide risk among those with certain serious mental illnesses was more than 10
times that of the general population.27 The coincidence of these increased risks
means that recently discharged inmates with mental illness are uniquely vulnerable
to rearrest, serious injury, and death during the time immediately following
release.28
25 Hoge et al., Task Force Report at 4; see also Sarra L. Hedden et al., Substance Abuse and Mental Health Servs. Admin., Behavioral Health Trends in the United States: Results from the 2014 National Survey on Drug Use and Health (Sept. 2015) (“SAMHSA Survey”), https://www.samhsa.gov/data/sites/default/files/ NSDUH-FRR1-2014/NSDUH-FRR1-2014.pdf.
26 SAMHSA Survey at 23, 32-33; see also Stephanie Hartwell et al., Predictors of Accessing Substance Abuse Services Among Individuals with Mental Disorders Released from Correctional Custody, 9 J. Dual Diagnosis 11 (2013) (finding that a history of substance abuse disorders is as high at 69% in the population of inmates with known mental health issues, and that 61% of exinmates with such mental health issues access substance abuse treatment services within 24 months of their release).
27 Edward Chesney et al., Risks of All-Cause Suicide Mortality in Mental Disorders: A Meta-Review, 13 World Psychiatry 153, 158 (2014).
28 Dlugacz, Community Re-entry Preparation/Coordination at 77 (noting research showing that two thirds of inmates with serious mental illness are rearrested and half are hospitalized within 18 months of release).
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II. IT IS WIDELY RECOGNIZED THAT DISCHARGE PLANNING IS AN ESSENTIAL PART OF THE STANDARD OF CARE FOR CORRECTIONAL INSTITUTIONS AND DETENTION FACILITIES
Given the importance of continuity of care for individuals with serious
mental illnesses, major professional organizations identify discharge planning at
correctional or detention facilities as essential to the standard of care.29 These
include organizations such as the American Psychiatric Association,30 AMA,31
APHA,32 the National Commission on Correctional Health Care,33 and the
Department of Veterans Affairs.34 The American Psychiatric Association has long
29 Id. at 76. 30 APA, Correctional Facilities at 35-36 (describing the essential services that correctional facilities must offer to detainees or inmates for community reentry and transfer planning). 31 Am. Med. Ass’n, Fundamental Elements of the Physician-Patient Relationship, Op. E-10.01 (1990) (noting that “[t]he patient has the right to continuity of health care” and that “[t]he physician has an obligation to cooperate in the coordination of medically indicated care with other health care providers treating the patient”). 32 Am. Pub. Health Ass’n, Standards for Health Services in Correctional Institutions 39 (2003) (“There must be a plan for continuity of care, whether a prisoner is transferred to another correctional system or facility or returned to the community.”). 33 Nat’l Comm’n on Corr. Health Care, Standards for Health Services in Jails 95-96 (2014) (“Discharge planning is provided for inmates with serious health needs whose release is imminent.”). 34 Dep’t of Veterans Aff., Veterans Health Admin., Directive 1162.06, at 3-4 (Sept. 27, 2017), https://www.va.gov/vhapublications/ ViewPublication.asp?pub_ID=5473 (outlining the scope of the VA’s Veterans
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made clear that “timely and effective mental health discharge planning is essential to continuity of care and an integral part of adequate mental health treatment.”35 AMA has also taken the position that “correctional and detention facilities should provide medical, psychiatric, and substance misuse care that meets prevailing community standards, including appropriate referrals for ongoing care upon release from the correctional facility in order to prevent recidivism.”36
Many correctional institutions or organizations have implemented policies requiring discharge planning. The Department of Justice’s National Institute of Corrections states that discharge planning is both an important component of a prison’s broader medical care program37 and a critical element of a prison’s mental health program.38 “Regardless of the difficulties encountered by correctional mental health staff, it is crucial that every attempt be made to provide adequate discharge planning for the mentally ill.”39 “If these patients, in particular, are not
Justice Programs, which provide “a continuum of services designed to serve justice-involved Veterans . . . re-entering the community after incarceration”).
35 APA, Jails and Prisons at 18. 36 AMA, Standards of Care. 37 U.S. Dep’t of Justice, Nat’l Inst. of Corr., Correctional Health Care: Guidelines for the Management of an Adequate Delivery System 172 (2001), https://www.ncchc.org/filebin/Publications/CHC-Guidelines.pdf. 38 Id. at 177-78. 39 Id. at 177 (emphasis added).
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provided with a supply of medications and with sufficient social services in the community, they are likely to reoffend.”40 The Bureau of Prisons is similarly “committed to helping inmates [with mental illness] prepare for reintegration into their communities.”41 It has established a network of residential reentry centers, community treatment services, social workers, and other resources to assist inmates with safely transitioning into the community.42
Immigration and Customs Enforcement (“ICE”) likewise requires discharge planning. In its 2011 Performance-Based National Detention Standards, ICE lists the following as one of the expected outcomes of its medical care standards:
Detainees shall receive continuity of care from time of admission to time of transfer, release or removal. Detainees, who have received medical care, released from custody or removed shall receive a discharge plan, a summary of medical records, any medically necessary medication and referrals to community based providers as medically-appropriate.43
40 Id. 41 Bur. of Prisons, Treatment and Care of Inmates with Mental Illness, Inmate and Custody Management Policy 5310.16, at 27 (May 1, 2014), https://www.bop.gov/policy/progstat/5310_16.pdf. 42 Id. at 27-31. 43 Immigr. & Customs Enf’t, Performance-Based National Detention Standards, pt. 4.3, at 257-58 (2011; rev. Dec. 2016), https://www.ice.gov/doclib/ detention-standards/2011/4-3.pdf.
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The majority of states require mental health care discharge planning for correctional and detention centers.44 A 2008 survey of 43 states found that all 43 provided at least a limited supply of interim medications and that the vast majority (93%) work collaboratively with mental health agencies to provide discharge planning.45 California, for instance, provides prisoners with mental illness an individualized written discharge plan, a three- to four-week supply of medication, and referrals to inpatient and outpatient services.46 Ohio provides a reentry plan for all exiting prisoners, offering those with mental health disorders a one- to twoweek supply of medication, linkage to a community social worker, and a scheduled post-release appointment.47
Counties also recognize the need for reentry planning. The National Association of Counties describes reentry planning as “integral” to efforts at reducing recidivism, achieving cost-savings for the government, and improving the
44 Mohamedu F. Jones, Formative Case Law and Litigation, in Oxford Textbook of Correctional Psychiatry 13, 15 (Robert L. Trestman et al. eds., 2015).
45 Nancy La Vigne et al., Urban Inst., Justice Pol’y Ctr., Release Planning for Successful Reentry: A Guide for Corrections, Service Providers, and Community Groups 20 & App. B, at xv (2008) (“La Vigne et al., “Release Planning”), https://www.urban.org/sites/default/files/publication/32056/411767Release-Planning-for-Successful-Reentry.PDF.
46 Id. App. C. 47 Id.
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health and well-being of mentally ill individuals who have been incarcerated.48 It also highlights model reentry programs in jails across the country.49 Allegheny County, Pennsylvania, for example, “focuses on comprehensive reentry planning that includes family reunification, housing, substance abuse and mental health treatment, employment, and community engagement.”50 The County “begins reentry planning as soon as an individual enters the jail” and has an infrastructure of support services to facilitate reentry, aimed specifically at lowering recidivism rates.51
48 Justin Carmody, Nat’l Ass’n of Counties, Reentry for Safer Communities: Effective County Practices in Jail to Community Transition Planning for Offenders with Mental Health and Substance Abuse Disorders 4 (2008), https://ojp.gov/ newsroom/testimony/2009/reentrysafecommunity.pdf.
49 Id. at 6-14 (highlighting programs from Allegheny County, Pennsylvania, Auglaize County, Ohio; Black Hawk County, Iowa; Macomb County, Michigan; Montgomery County, Maryland; and Multnomah County, Oregon).
50 Id. at 6-7. 51 Id.; see also La Vigne et al., Release Planning at 28 (highlighting Allegheny County’s “comprehensive, individualized release planning and case management to individuals released without community supervision who also have a mental illness”).
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III. RESEARCH SHOWS THAT DISCHARGE PLANNING ENHANCES POST-RELEASE OUTCOMES FOR INDIVIDUALS WITH SERIOUS MENTAL ILLNESS
Research provides strong evidence that discharge planning improves
outcomes for detainees and incarcerated persons with mental illness,52 including
reduced rates of recidivism,53 and results in overall cost-savings.54 Federal funding
52 See, e.g., Jeffrey Draine & Daniel B. Herman, Critical Time Intervention for Reentry from Prison for Persons with Mental Illness, 58 Psychiatric Servs. 1577 (2007) (describing the benefits of Critical Time Intervention, a nine-month, staged multidisciplinary program linking individuals with serious mental illnesses with community resources in analogous contexts). Researchers have also linked discharge planning for other health care needs to improved health outcomes. See, e.g., Emily A. Wang et al., Discharge Planning and Continuity of Health Care: Findings from the San Francisco County Jail, 98 Am. J. Pub. Health 2182 (2008) (finding that HIV positive inmates who received discharge planning were six times more likely to have a regular source of care in the community compared with inmates with other chronic medical conditions).
53 Dlugacz, Community Re-entry Preparation/Coordination at 78 (observing that “recent studies indicate that standard mental health treatment may indeed moderate recidivism”).
54 John Roman & Aaron Chalfin, Urban Inst., Justice Pol’y Ctr., Does It Pay To Invest in Reentry Programs for Jail Inmates? 1 (2006), https://www.urban.org/ sites/default/files/roman_chalfin.pdf (concluding that “the case for jail-based reentry programming is strong” and noting that “[m]any cost-benefit studies have found that there are large costs of crime to victims and reductions in crime yield large savings to those who are not victimized”); Ole J. Thienhaus & Melissa Piasecki, Correctional Psychiatry: Practice Guidelines and Strategies 12-15 (2007) (citing a New Freedom Commission report that “makes explicit the potentially positive budgetary implications of providing successful reentry services to mentally ill inmates leaving corrections”); accord Am. Bar Ass’n, Crim. Justice Sec., State Policy Implementation Project 13-17 (2011), https://www.americanbar.org/content/dam/aba/administrative/criminal_justice/ spip_handouts.authcheckdam.pdf (noting that “[w]ell designed reentry programs
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has encouraged models that assist individuals with co-occurring mental illness and
substance abuse disorders by providing intensive in-reach and community supports
as part of reentry services, using peer supports and case managers.55 This research
is of special importance in light of findings that inmates with mental illnesses are
more likely to reoffend than the overall criminal justice population.56
California’s Mentally Ill Offender Crime Reduction Grant Program
conducted one such study. In 1998, California provided more than $80 million in
can create significant savings” and citing reentry programs in Brooklyn, New York, and Michigan as examples of successful, cost-saving reentry programs). Studies have also shown that transition planning for other medical needs reduces recidivism and costs to society. One randomized trial, for example, found that linking prisoners to primary care services upon release reduced costly emergency room visits. Emily A. Wang et al., Engaging Individuals Recently Released from Prison into Primary Care: A Randomized Trial, 102 Am. J. Pub. Health 22 (2012) (published online). Another study found that a Michigan reentry initiative that links prisoners to a medical home, helps them access needed medications and primary and specialty care, and ensures that they obtain their medical records on release from prison, “appears to have been a contributing factor to a significant decline in recidivism rates” in the local community. Vondie Woodbury & Peter J. Sartorius, Michigan Pathways Project Links Ex-Prisoners to Medical Services, Contributing to a Decline in Recidivism (Agency for Healthcare Research and Quality 2009; updated 2014), https://innovations.ahrq.gov/profiles/michiganpathways-project-links-ex-prisoners-medical-services-contributing-decline.
55 See generally David A. Smelson et al., The MISSION Treatment Manual: Maintaining Independence and Sobriety Through Systems Integration, Outreach, and Networking (2d ed.), http://www.missionmodel.org/manuals-1/.
56 Dlugacz & Roskes, Clinically Oriented Reentry Planning at 397; see also Jacques Baillargeon et al., Psychiatric Disorders and Repeat Incarcerations: The Revolving Prison Door, 166 Am. J. Psychiatry 103 (2009) (large-scale study of inmates in the Texas prison system finding that those with major psychiatric
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grants to 30 programs across 26 counties to develop and assess projects to help mentally ill offenders avoid rearrest or reincarceration.57 Grant recipients designed these projects to meet the needs of their specific offender populations. The services offered varied by county but generally included assistance in securing residential and outpatient mental health treatment; medication education, management, and support; and assistance in securing disability entitlements, housing, vocational training, and employment.58 Grant recipients randomized offenders into two groups: one receiving enhanced reentry services, and the other receiving treatment as usual.59 Grant recipients followed the offenders for two years post-release.60
disorders “had substantially increased risks of multiple incarcerations” over sixyear study period); see also Kamala Mallik-Kane & Christy A. Visher, Urban Inst., Justice Pol’y Ctr., Health and Prisoner Reentry: How Physical, Mental, and Substance Abuse Conditions Shape the Process of Reintegration 4 (Feb. 2008), https://www.urban.org/sites/default/files/publication/31491/411617-Health-andPrisoner-Reentry.PDF (finding that returning prisoners with mental health conditions reported poorer housing and employment outcomes, lower levels of family support, and higher levels of post-release criminal involvement).
57 Hoge et al., Task Force Report at 8. 58 Hoge, Transition and Outpatient Services at 472. 59 Hoge et al., Task Force Report at 8. 60 Id.
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By the end of the study, it was clear that inmates receiving enhanced services enjoyed better outcomes.61 From a treatment perspective, they were less likely to have drug or alcohol problems, less likely to have their conditions become more severe, and less likely to be homeless or economically insufficient.62 And from a criminal justice perspective, they were booked, convicted, and jailed less often.63 Although there were substantial challenges, these programs resulted in faster access to services and improved monitoring of subjects to permit quick interventions in the event of relapse, psychotic episodes, or new illegal behaviors.64
A study of a similar program in Maryland – the Maryland Reentry Partnership (“REP”) – also found that transitional mental health programming improved criminal justice outcomes. The REP is a partnership of service providers that provide comprehensive reentry services to prisoners returning to select Baltimore neighborhoods. These services include housing assistance, substance abuse treatment, mental health counseling, education, and vocational training.65
61 Id. 62 Id. 63 Id. 64 Id. 65 John Roman et al., Urban Inst., Justice Pol’y Ctr., Impact and Cost-Benefit Analysis of the Maryland Reentry Partnership Initiative 1 (2007), https://www.urban.org/research/publication/impact-and-cost-benefit-analysismaryland-reentry-partnership-initiative/view/full_report; see also id. at 3.
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The program also matches returning prisoners to the appropriate social and medical services that can help them successfully reintegrate into the community.66
The Urban Institute’s Justice Policy Center evaluated the impact of the REP by examining data across a cohort of prisoners released between March 2001 and December 2004, some who returned to neighborhoods participating in the REP, others who returned to neighborhoods that did not.67 The Justice Policy Center found that the REP generally succeeded in reducing criminal offending.68 Over the course of the study period, fewer REP participants committed new crimes, and REP participants were also arrested on fewer charges.69 Moreover, the REP was cost-beneficial, returning approximately $3 in benefits for every dollar in new costs.70 Overall, it yielded a total benefit to society of about $7.2 million, and a benefit to criminal justice agencies of about $3.5 million.71
More recently, a study of a Michigan reentry initiative – the Jail Diversion Program – has linked discharge planning with improved continuity of care and reduced rates of recidivism for released prisoners and detainees with serious
66 Id. at 1-2. 67 Id. 68 Id. at 18. 69 Id. 70 Id. 71 Id.
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mental illness.72 The study, which focused on 1,267 individuals enrolled in the program across several counties between April 2015 and March 2016, concluded that individuals released from jail who were given a two-week supply of medication and instructed to see a community mental health case manager achieved greater continuity of care.73 It also found that those counties that offered mandated treatment, intensive case management, and outreach services upon jail discharge had greater reductions in recidivism rates following implementation of the program.74
Other research has linked programs providing access to specific social services like Medicaid with reduced rates of recidivism, reduced costs, or both. A study of Washington and Florida county jail systems, for example, showed that released detainees with severe mental illness that had access to Medicaid and behavioral health services were less likely to be rearrested.75 As these and other
72 Sheryl Kubiak et al., Diversion Pilots: Long Term Outcomes, in Mental Health Diversion Council, Progress Report Appendices, App. C, http://www.michigan.gov/documents/mentalhealth/Diversion_Council_Progress_ 2018_Appendices_611674_7.pdf.
73 Id. at 11. 74 Id. at 15. 75 Joseph P. Morrissey et al., The Role of Medicaid Enrollment and Outpatient Service Use in Jail Recidivism Among Persons with Severe Mental Illness, 58 Psychiatric Servs. 794 (2007). The authors, however, note that the observed differences were relatively small and that further research is needed. Id. at 801; see also Grabert et al., 68 Psychiatric Servs. at 1082 (finding that providing
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studies reveal,76 discharge planning is crucial not only for individuals with serious
mental illness, but it can also can play an important role in reducing crime and its
costs to society.77
expedited Medicaid enrollment for former inmates with serious mental illness increases the use of community mental health and other medical services); Joseph P. Morrissey et al., Medicaid Enrollment and Mental Health Service Use Following Release of Jail Detainees with Severe Mental Illness, 57 Psychiatric Servs. 809 (2006) (suggesting that ensuring severely mentally ill detainees’ enrollment in Medicaid upon release is likely to improve access to and receipt of community-based services).
76 Smaller or uncontrolled studies have also linked reentry planning for mentally ill detainees or prisoners with improved treatment and reduced rates of recidivism. See, e.g., Lois A. Ventura et al., Case Management and Recidivism of Mentally Ill Persons Released from Jail, 49 Psychiatric Servs. 1330, 1334 (1998) (concluding that Toledo, Ohio, jail detainees who received certain case management services, including diagnostic assessment, counseling, and medications, which continued after release, “were less likely to be rearrested than subjects who received no case management”).
77 These studies also make sense in light of a growing body of literature linking outpatient treatment services or access to benefits such as supportive housing with a reduced likelihood of arrest for individuals with serious mental illnesses. For example, examining Florida Medicaid enrollees with schizophrenia or bipolar disorders between 2005 and 2012, researchers showed that “high medication possession and receipt of routine outpatient services reduced the risk of arrest” after discharge from hospitalization. Van Dorn et al., 64 Psychiatric Servs. at 860. They also found “an additional protective effect against arrest for individuals in possession of their prescribed pharmacological medications for 90 days after discharge from . . . hospitalization.” Id.; see also New York City Dep’t of Health and Mental Hygiene, New York/New York III Supportive Housing Evaluation: Interim Utilization and Cost Analysis (2013), https://shnny.org/ images/uploads/NY-NY-III-Interim-Report.pdf (finding in an interim report that placement of seriously mentally ill individuals in supportive housing reduced public expenditures, with savings driven in part by reduced use of jails).
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CONCLUSION The judgment of the district court should be reversed.

Dated: February 20, 2018

Respectfully submitted,

IRA A. BURNIM JUDGE DAVID L. BAZELON CENTER
FOR MENTAL HEALTH LAW 1101 15th Street, N.W., Suite 1212 Washington, D.C. 20005 (202) 467-5730
Counsel for Judge David L. Bazelon Center for Mental Health Law

/s/ Aaron M. Panner AARON M. PANNER KELLOGG, HANSEN, TODD,
FIGEL & FREDERICK, P.L.L.C. 1615 M Street, N.W., Suite 400 Washington, D.C. 20036 (202) 326-7900 apanner@kellogghansen.com
Counsel for Amici Curiae

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CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation of Local Rule 29.1(c), the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5)(A), and the type-style requirements of Federal Rule of Appellate Procedure 32(a)(6). This brief was prepared using a proportionally spaced typeface (Times New Roman, 14 point). Exclusive of the portions exempted by Federal Rule of Appellate Procedure 32(f), this brief contains 6,841 words. This certificate was prepared in reliance on the word-count function of the wordprocessing system (Microsoft Word 2013) used to prepare this brief.

February 20, 2018

/s/ Aaron M. Panner Aaron M. Panner

 
 CasCeas7e:1167-c-3v-500565,2D7o-NcuSmRenDt 1o2cu7m, 0e5n/t2743/20F19ile, d250751/2841/71,9PaPgaeg1eo1f 3o7f 37

17-3506-pr Charles v. Orange County

7:16-cv-05527-NSR

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2018
Argued: September 25, 2018 Decided: May 24, 2019
No. 17-3506-pr

May 24 2019

MICHELET CHARLES, CAROL SMALL,
Plaintiffs-Appellants,
— v. —
ORANGE COUNTY, STATE OF NEW YORK, ORANGE COUNTY SHERIFF’S DEPARTMENT, ORANGE COUNTY DEPARTMENT OF MENTAL HEALTH, CARMEN ELIZONDO, FORMER
CLINIC DIRECTOR, ORANGE COUNTY CORRECTIONAL FACILITY, in her individual capacity,
Defendants-Appellees,
NICOLE KAYE, CLINIC DIRECTOR, ORANGE COUNTY CORRECTIONAL FACILITY, in her individual capacity,
Defendant.

CERTIFIED COPY ISSUED ON 05/24/2019

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B e f o r e:
LYNCH and HALL, Circuit Judges, and BOLDEN, District Judge.*
Plaintiffs-Appellants Michelet Charles and Carol Small were formerly civil immigration detainees at the Orange County Correctional Facility, where they were treated for serious mental illnesses. They instituted this civil rights action against Orange County and some of its agencies and officials under 42 U.S.C. § 1983, complaining that the failure to engage in discharge planning or to provide them with discharge plans upon release violated their substantive due process rights under the Fourteenth Amendment. The United States District Court for the Southern District of New York (Nelson S. Román, J.) granted the Defendants’ motion to dismiss the complaint. We VACATE and REMAND for further proceedings.
DANIEL J. STUJENSKE, Simpson Thacher & Bartlett LLP, New York, NY (Thomas C. Rice, Simpson Thacher & Bartlett LLP, on the brief), Laura F. Redman, Antony P. F. Gemmell, New York Lawyers for the Public Interest, New York, NY for Plaintiffs-Appellants Michelet Charles and Carol Small.
ANTHONY CARDOSO, Orange County Attorney’s Office, Goshen, NY, for Defendants-Appellees Orange County, State of New York, Orange County Sheriff’s Department, Orange County Department of Mental Health and Carmen Elizondo, Former Clinic Director, Orange County Correctional Facility, in her individual capacity.
* Judge Victor A. Bolden, of the United States District Court for the District of Connecticut, sitting by designation.
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Aaron M. Panner, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C., Washington, DC (Ira A. Burnim, Judge David C. Bazelon Center for Mental Health Law, Washington, DC, on the brief), for Amici Curiae American Psychiatric Association, American Academy of Psychiatry and the Law, American Psychological Association, American Medical Association, National Association of Social Workers, American Public Health Association, and Judge David L. Bazelon Center for Mental Health Law, in support of Plaintiffs-Appellants.
Jamie A. Levitt, Morrison & Foerster LLP, New York, NY, for Amici Curiae The Bronx Defenders, Brooklyn Defender Services, Community Initiatives for Visiting Immigrants in Confinement, Detention Watch Network, The Florida Justice Institute, Inc., Human Rights First, Immigrant Defense Project, The Immigrant Rights Clinic of Washington Square Legal Services, Inc., at NYU Law School, the Kathryn O. Greenberg Immigration Justice Clinic at the Benjamin N. Cardozo School of Law, The Legal Aid Society of New York, The Prison Law Office, Prisoners’ Legal Services of New York, and the Urban Justice Center Mental Health Project, in support of Plaintiffs-Appellants.
Alexander M. Wilson, New York State Sheriffs’ Association, Albany, NY for Amicus Curiae New York State Sheriffs’ Association, in support of Defendants-Appellees.
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GERARD E. LYNCH, Circuit Judge: The question before us is whether the Plaintiffs-Appellants, Michelet
Charles and Carol Small, have stated a plausible claim for relief under the Fourteenth Amendment for deliberate indifference to their serious medical needs. Plaintiffs were confined for many months as civil immigration detainees at the Orange County Correctional Facility, where they received treatment for their serious mental health disorders. Defendants-Appellees are Orange County, the municipality that oversees the Orange County Correctional Facility (“the Jail”); the Orange County Sheriff’s Office, the specific entity that contracts with the Federal Government to house detainees in the Jail; the Orange County Department of Mental Health, the agency responsible for providing mental health services to people confined at the Jail; and Carmen Elizondo, the Clinical Director at the Jail.1 Plaintiffs filed a complaint in the United States District Court for the Southern District of New York alleging that the Defendants, who were responsible for providing them with medical care while they were detained at the Jail, failed to provide them with mental health discharge planning before their
1 The parties stipulated to the dismissal of this appeal with prejudice with respect to former defendant Nicole Kaye.
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release from custody, in violation of the Fourteenth Amendment’s Due Process Clause. Plaintiffs seek relief under 42 U.S.C. § 1983.
The district court (Nelson S. Román, J.) dismissed Plaintiffs’ complaint for failure to state a claim. For the reasons that follow, we VACATE that judgment, and REMAND for further proceedings.
BACKGROUND Both Plaintiffs suffer from serious, ongoing mental illnesses.2 Each Plaintiff was arrested by agents of the U.S. Immigration and Customs Enforcement (“ICE”), the federal law enforcement agency charged with the detention and removal of illegal immigrants. While awaiting their removal proceedings, Plaintiffs were detained at the Jail, a county detention facility that houses civil immigration detainees pursuant to an intergovernmental agreement between ICE and Orange County. During their detention, Plaintiffs were treated for their illnesses, receiving counseling and psychotropic medication. However, the treatment Plaintiffs received while they were in custody did not include
2 On this appeal from the dismissal of a complaint for failure to state a claim, we take the allegations in the complaint as true and construe them in the light most favorable to Plaintiffs. See Ashcroft v. Iqbal, 556 U.S. 662, 678–80 (2009).
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discharge planning, which Plaintiffs allege is a routine and necessary component of institutional mental health treatment. Plaintiffs claim that as a result of Defendants’ failure to provide them with discharge planning while they were in custody, they suffered serious mental health consequences shortly after their release. I. Michelet Charles
Plaintiff Michelet Charles is a 55-year old lawful permanent resident who has lived in the United States for 34 years. Charles has suffered from bipolar and schizoaffective disorders since around 1984. For years, he managed his illness through regular mental health care. When Charles is not treated for his illnesses, he suffers from hallucinations, delusions, and periods of mania and depression.
In July 2014, Charles was arrested by ICE officials and detained at the Jail for 363 days during the pendency of his immigration case.3 When Charles
3 ICE and Orange County confine hundreds of people in civil immigration detention at the Orange County Detention Center every year pursuant to an Inter-Governmental Services Agreement between ICE and Orange County. Civil immigration detainees are held in custody to assure their presence throughout the administrative removal proceedings. Such detainees are not charged with crimes. Nevertheless, civil immigration detainees are housed in conditions similar to those experienced by detainees awaiting trial on criminal charges.
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entered the detention center, medical personnel at the facility diagnosed him with bipolar disorder with psychotic features. During his detention, Defendants provided Charles with psychiatric care, which included meeting with a psychiatrist every three weeks in order to monitor his condition, and daily psychotropic medication to keep him stable. Charles’s treatment was documented by the Jail Clinic in an “Intervention/Care Plan” which listed his diagnosis, the types of counseling Charles received, the medication he required, and any suicidal or harmful tendencies he had.
On July 22, 2015, Charles was brought from the Jail to New York City for an appearance at the Immigration Court in lower Manhattan. Prior to his immigration hearing, Defendants had not provided Charles with any plan for his continued mental health care after discharge, a list of his medications, a list of outside referrals, any other information about the medication and counseling he received while detained, or assistance or information relevant to his obtaining future treatment for his known medical condition. Nor were any such materials provided to Charles at or after his hearing. Charles succeeded at his immigration hearing4 and was released directly from the court with his identification and 4 The record does not reflect the precise disposition of the matter.
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nothing more. The ICE Deportation Officer who attended the hearing told Charles’s attorney that ICE did not have any medication for Charles, and that he should return to the Jail if he needed to obtain a supply of his medication.
The day after his release, Charles and his daughter drove over 65 miles from their home to the Jail to obtain Charles’s psychiatric medication. When Charles’s daughter asked an employee at the front desk of the Jail for her father’s medication, the employee refused to provide it, claiming that the person who had transported Charles to the Immigration Court was responsible for providing him with a continuing supply of medication. The Orange County employee also informed Charles and his daughter that as a matter of institutional policy, after a person is released from the facility, the Jail can no longer provide him with medication.
Charles’s immigration attorney then contacted the ICE Deportation Officer again, requesting that Charles be provided with a supply of medication. The Officer did not respond to the inquiry. According to Charles’s medical file from the Jail, on July 23, 2015, the day after his release, and the same day that he visited the facility with his daughter, a clinical social worker at the Jail signed a document entitled “Continuing Care Plan/Discharge Summary” (“Discharge
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Summary”) for Charles. The Discharge Summary listed Charles’ diagnosis and expressly anticipated that Charles would have future mental health needs including medication, psychiatric treatment, and substance abuse treatment. However, neither Charles nor his attorney was given a copy of the Discharge Summary.
After his release, without immediate access to his prescription antipsychotic and anti-depressant medications and counseling, Charles soon began psychologically decompensating. He exhibited bizarre behavior, was disorganized, and mumbled when he spoke. His family reported that he was manic, anxious, and paranoid.
By August 4, 2015, Charles was experiencing symptoms of psychosis, and his ability to control his thoughts and emotions was so impaired that he lost contact with reality. On that date, Charles’s family called 911 for emergency medical assistance. The police officers who responded to the call transported him to the emergency room at a nearby hospital. The next day, Charles was hospitalized in an inpatient psychiatric unit of North Shore LIJ South Oaks Hospital. His admission record states that he had worsening aggressive, disorganized, and bizarre behavior, and was preoccupied with paranoid ideas. It
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took two months in the hospital for Charles’s condition to stabilize and for him to return to his baseline mental state. II. Carol Small
Plaintiff Carol Small is a 45-year old lawful permanent resident of the United States. Before she was detained, Small lived on her own and supported herself as a hairdresser in the Bronx.
Small was detained at the Jail in May 2015. After about a month of detention, Small began experiencing symptoms of severe mental illness, including visual and auditory hallucinations. She became extremely paranoid and delusional, believing that she was being monitored by the government through a chip implanted in her tooth, that there was a government conspiracy to poison her, and that poison was coming through the vents in the Jail. In late June 2015, a psychiatrist at the Jail diagnosed Small with paranoid schizophrenia. Similarly to Charles, her diagnosis, medications, and counseling needs were documented by the Jail Clinic in a document titled “Intervention/Care Plan.” But like Charles, Small was not provided with a copy of that document.
In September 2015, Small was transferred to the inpatient ward at Kings County Hospital for intensive treatment for her mental illness. In October, after
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her condition stabilized, she was transferred back to the Jail. Upon her return, medical employees of the Orange County Department of Mental Health provided Small with medically necessary treatment and continued to prescribe and administer her daily prescription medication, which kept her stable.
On January 11, 2016, an Immigration Judge granted Small immigration relief and ordered her release.5 Small was released from the Jail on January 19, 2016 at around 6:30 PM, in below-freezing temperatures, with $80 in cash. Small was not given an interim supply of her prescribed medicines, a list of her medications, a description of the treatment she had received while detained, or a list of outside referrals or providers for continuing care. During the roughly six months in which Small was treated for her mental illness at the Jail, she was not provided with any discharge planning.
Upon her release, Small took the train from Orange County to Penn Station. She stayed briefly with family members, and then a social worker from the organization that had provided Small with immigration representation arranged for her to live in a shelter. While Small was struggling to re-establish her life after release, she was extremely distressed and worried for her own 5 Again, the record does not describe the exact nature of the disposition.
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health and the possibility of relapsing without the medication she had been taking to treat her mental illness. On January 21, 2016, Small checked herself into the emergency room at North Central Bronx Hospital in an effort to obtain medication. Because Small had written down a list of the medications she was taking while detained, the hospital was able to prescribe her the same medications without a full psychological evaluation. These events were emotionally distressing for her. III. Procedural History
Plaintiffs filed a complaint (the “Complaint”) on July 12, 2016, asserting violations of the Fourteenth Amendment. They claim that substantive due process requires that civil detainees be afforded adequate medical care during their detention, and that their medical care should have included discharge planning, because of their serious mental illnesses. They allege that discharge planning is regarded by medical and psychological professionals as an essential part of mental health care, especially in institutional settings, where it is necessary to mitigate the risks of interrupted treatment while patients transition from treatment within the institution to other sources of treatment. Plaintiffs contend that by failing to provide them with discharge planning, Defendants
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were deliberately indifferent to the risk that Plaintiffs would relapse upon release and face mental decompensation and other serious health consequences.
On January 30, 2017, Defendants moved to dismiss the entire Complaint for failure to state a claim. Defendants argued that there is no established substantive due process right to the post-release measures inherent in discharge plans. On their view, the government’s duty of care ends the instant the inmate walks through the prison gates and into the civilian world, because that is when the inmate’s ability to secure medication or care on his own behalf is restored.
On September 29, 2017, the district court granted Defendants’ motions.6 See Charles v. County of Orange, No. 16-CV-5527 (NSR), 2017 WL 4402576 (S.D.N.Y. Sept. 29, 2017). The district court construed the Complaint as stating three claims under § 1983: (1) a Monell claim against Orange County, the Orange County Sheriff’s Department, and the Orange County Department of Mental Health (the “County Defendants”) alleging a policy, practice and custom of providing constitutionally inadequate health care to persons held in civil immigration detention; (2) a claim against all Defendants for deliberate indifference to
6 Defendants-Appellants filed one joint motion and former defendant Kaye filed a separate motion.
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Plaintiffs’ serious medical needs by discharging them from the Jail without adequate discharge plans; and (3) supervisory liability claims against Kaye and Elizondo (the “Individual Defendants”), successive clinic directors at the Jail, who Plaintiffs claim were responsible for providing them with medical treatment while they were detained.
The district court recognized that the Fourteenth Amendment Due Process Clause requires a correctional facility to provide medical care to detainees while they are in custody. But it understood the Complaint to claim that Defendants did not provide Plaintiffs with necessary medical treatment after they were released. The district court concluded that even though the Plaintiffs had adequately pled that the Defendants were deliberately indifferent to their serious medical needs, the standard they would have to meet if they alleged a constitutional violation while they were in custody, Plaintiffs’ claims failed because the failure of treatment did not “shock the conscience.” Since Plaintiffs’ substantive Fourteenth Amendment claim failed, the district court declined to address the Monell claim against the County Defendants, or the supervisory liability claim against the Individual Defendants.
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Because the district court construed Plaintiffs’ allegations as regarding deliberate indifference to post-custody medical care, rather than deliberate indifference to needed in-custody medical care, the district court applied the wrong standard in determining whether Plaintiffs adequately pled a Fourteenth Amendment violation. We therefore vacate the district court’s dismissal of the Complaint and remand for further proceedings.
DISCUSSION We review de novo a district court’s grant of a motion to dismiss pursuant to Rule 12(b)(6) and grant of a motion for judgment on the pleadings under Rule 12(c). See Brown Media Corp. v. K&L Gates, LLP, 854 F.3d 150, 156–57 (2d Cir. 2017); Kirkendall v. Halliburton, Inc., 707 F.3d 173, 178 (2d Cir. 2013). In considering Defendants’ motions, we accept as true all factual allegations in the Complaint and draw all reasonable inferences in Plaintiffs’ favor. See id. At this stage, we need decide only whether Plaintiffs’ claims are facially plausible. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it
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asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (internal citations and quotation marks omitted). I. Discharge Planning as In-Custody Care
On appeal, Plaintiffs argue that the district court misconstrued the allegations in their Complaint and therefore applied an incorrect legal analysis to their Fourteenth Amendment claims. The district court construed Plaintiffs’ Complaint as contending that the Defendants owed Plaintiffs a duty to provide them with limited medical care after they had been released from custody.
Plaintiffs argue that the deprivation of care that they allege in fact occurred during their detention, because discharge planning occurs before release from custody. Their argument is consistent with the Complaint, which clearly purports to allege an in-custody deprivation of care. Whether Plaintiffs’ claim for deprivation of discharge planning, which negatively affected them after their release from custody, can be considered a claim for in-custody deprivation of care is an important question in this case.
This distinction matters because the duties state actors owe to individuals differ depending on whether the complainant was in the state’s custody. As a general matter, the state is under no constitutional duty to provide substantive
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services to free persons within its borders. See DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989). But when a person is involuntarily held in state custody, and thus wholly dependent upon the state, the state takes on an affirmative duty to provide for his or her “safety and general well-being.” Id. at 199–200. This “special relationship exception” imposes a duty on the state in recognition of “the limitation which [the state] has imposed on [the person’s] freedom to act on his own behalf.” Id. at 200; see also Matican v. City of New York, 524 F.3d 151, 156 (2d Cir. 2008).
In Estelle v. Gamble, 429 U.S. 97, 103 (1976), the Supreme Court held that the state has a constitutional obligation to provide medical care to persons it is punishing by incarceration. When the state is deliberately indifferent to the medical needs of a person it has taken into custody, it violates the Eighth Amendment’s prohibition on cruel and unusual punishment. Id. at 104. The Supreme Court subsequently extended the protections for prisoners established in Estelle to civil detainees under the Due Process Clause of the Fourteenth Amendment, reasoning that persons in civil detention deserve at least as much protection as those who are criminally incarcerated. See Youngberg v. Romeo, 457 U.S. 307, 321–22 (1982); City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983).
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The Ninth Circuit has extended the reasoning of Estelle and DeShaney beyond the moment of release from custody, holding in Wakefield v. Thompson, 177 F.3d 1160, 1164 (9th Cir. 1999), that the state owes an affirmative duty to provide an outgoing prisoner requiring medication with a “supply sufficient to ensure that he has that medication available during the period of time reasonably necessary to permit him to consult a doctor and obtain a new supply.” The Ninth Circuit based this holding on a matter of common sense: “that a prisoner’s ability to secure medication ‘on his own behalf’ is not necessarily restored the instant he walks through the prison gates and into the civilian world.” Id. This Court, however, has never held that the state’s duties to an inmate or detainee extend beyond their release.
Plaintiffs’ theory in this case is that “[d]ischarge planning is an essential part of mental healthcare in institutional settings” and “Defendants are constitutionally obliged to provide Plaintiffs with adequate medical care while they are confined to immigration detention.” App’x at 10. Plaintiffs allege that discharge planning includes providing the detainee with (1) a summary of medical records (including admission diagnosis, discharge diagnosis, all diagnostic test results, a list of medications prescribed, a summary of care
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provided, a summary of the detainee’s response to treatment, medical complications encountered, and any outside healthcare referrals); (2) an interim supply of medication; and (3) a continuity of care plan, including referrals to community based providers. Plaintiffs’ Complaint alleges that the provision of these services and documents should begin being provided to the patient at the outset of in-custody medical treatment, and continue during the course of treatment.
Plaintiffs’ theory raises a legal question of first impression in this Circuit: whether a claim of constitutional entitlement to discharge planning, the alleged inadequacy of which causes post-release harm, can be considered a claim to incustody care cognizable under the “special relationship” exception. Discharge planning is fundamentally different from other measures or types of care to which detainees may be entitled while in custody, in that its entire purpose is to prevent post-release harm. Given the reality that the tangible harm Plaintiffs suffered was a direct result of their lack of medication and medical records after release from custody, the District Court understandably construed the Complaint as asserting “a right to post-release measures inherent in discharge planning.” Charles, 2017 WL 4402576, at *8.
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CasCeas7e:1167-c-3v-500565,2D7o-NcuSmRenDt 1o2cu7m, 0e5n/t2743/20F19ile, d250751/2841/71,9PaPgaeg2e0 2o0f 3o7f 37 Nevertheless, discharge planning is not so different from other measures the state takes in providing care to those in its custody as to be categorically beyond the reach of the “special relationship” exception. If discharge planning is to occur at all, it must, by definition, occur prior to release from custody. Whether the three components of discharge planning that Plaintiffs identify are an “essential part” of mental healthcare, as Plaintiffs allege, is a factual matter that may be proven at a later stage of litigation by expert testimony. If discharge planning is essential to providing care for mentally ill individuals, the rationale for the “special relationship” exception applies to this need no less than the need for other types of care. As the Supreme Court recognized in Estelle, “an inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.” 429 U.S. at 103. The Supreme Court in Estelle was concerned with failures to provide care that may result in death or “unnecessary” “pain and suffering.” Id. The failure to provide discharge planning, no less than other forms of care, may inflict such suffering. In this case, furthermore, it cannot be said that when the County released Plaintiffs, it “placed [them] in no worse position than that in which [they] would have been had it not acted at all . . .” DeShaney, 489 U.S. at 201; see App’x at 18, 21–22 (Charles); id. at 24 (Small).
20

CasCeas7e:1167-c-3v-500565,2D7o-NcuSmRenDt 1o2cu7m, 0e5n/t2743/20F19ile, d250751/2841/71,9PaPgaeg2e1 2o1f 3o7f 37
That the harmful consequences of a lack of discharge planning occur after
release from custody does not remove discharge planning from the purview of
the “special relationship” exception. For example, we affirmed application of this
exception where an inmate died a few weeks after being released from custody,
allegedly due to the facility’s inadequate medical treatment. Rodriguez ex rel.
Estate of Darby v. Walrath, 94 F. App’x 864 (2d Cir. 2004).8
Common sense and experience further support Plaintiffs’ theory that
discharge planning is part of in-custody care. It comports with common sense
that someone with a serious mental illness would need to receive a summary of
his medical records, including documents indicating his diagnosis and his
prescribed medications. These aspects of a discharge plan are expected parts of
8 Similarly, in Lugo v. Senkowski, 114 F. Supp. 2d 111, 115 (N.D.N.Y. 2000), the plaintiff had surgery to remove kidney stones while incarcerated. He was released on parole shortly thereafter, but before Lugo’s treating physician was able to remove a metal stent from his kidney. Id. Noting that Lugo “was undergoing continuing treatment at the time he was released,” the district court held that releasing Lugo with the stent in his body, and without either allowing him to return to Albany for treatment or forwarding his medical records to another facility to facilitate the performance of the operation there constituted deliberate indifference. Id. Although Plaintiffs’ theory in this case does not require us to reach the question of whether the state’s duty of care extends beyond a detainee’s release from custody, as the district court in Lugo held, the facts in Lugo illustrate how a failure to provide certain in-custody care may have harmful post-release effects that are inextricably bound up with that in-custody deprivation.
21

CasCeas7e:1167-c-3v-500565,2D7o-NcuSmRenDt 1o2cu7m, 0e5n/t2743/20F19ile, d250751/2841/71,9PaPgaeg2e2 2o2f 3o7f 37 what non-incarcerated patients seek, and pay for, in visiting doctors and hospitals for treatment. Those who have seen a doctor, visited a hospital emergency room, undergone surgery, or received any kind of medical treatment for a serious physical, emotional, dental or visual problem, understand the need for, and have likely been provided, documentation of the medications prescribed to them, their diagnosis, and a copy of any test results, during the course of their treatment. Thus, to the extent Plaintiffs complain that they were not provided with documentation regarding the treatment they received while in custody, their complaint relates to the provision of in-custody medical care.
These common-sense understandings are consistent with expert medical opinion. Plaintiffs point to a broad array of professional mental health and medical associations who agree that the standard of reasonable and adequate medical care for detained persons includes providing the detainee with interim medications and referrals while they are still in custody. For example, the American Psychiatric Association views discharge planning as in-custody care, stating that it “needs to begin as part of the initial treatment plan.” Brief of Bronx Defenders et al. as Amici Curiae Supporting Appellants at 21. The American Association of Community Psychiatrists says that “it is imperative that any psychiatric treatment provided during a period of incarceration include planning for post-
22

CasCeas7e:1167-c-3v-500565,2D7o-NcuSmRenDt 1o2cu7m, 0e5n/t2743/20F19ile, d250751/2841/71,9PaPgaeg2e3 2o3f 3o7f 37 release follow-up care in the community.” App’x at 30 (emphasis added). The National Commission on Correctional Health Care, from which the Jail has sought and obtained accreditation, defines discharge planning as “the process of providing sufficient medications for short-term continuity upon release and arranging for necessary follow-up mental health services before the inmate’s release to the community.” Id. at 31 (emphasis added). Such expert medical opinion supports the plausibility of Plaintiffs’ claim of a deprivation of in-custody care.
We also find plausible Plaintiffs’ contention that the provision of interim medication and referrals is part of the treatment that should have been provided to them while they were in custody. The American Psychiatric Association, the American Academy of Psychiatry and the Law, the American Psychological Association, the American Medical Association, the National Association of Social Workers, the American Public Health Association, and the Judge David L. Bazelon Center for Mental Health (collectively the “APA Amici”) wrote in support of Plaintiffs to explain that discharge planning, which includes a sufficient quantity of medication to allow continuous use, conducting a predischarge assessment, establishing appointments with community providers, and ensuring that medical records are effectively transferred to community providers, is an essential component of minimally adequate mental health care
23

CasCeas7e:1167-c-3v-500565,2D7o-NcuSmRenDt 1o2cu7m, 0e5n/t2743/20F19ile, d250751/2841/71,9PaPgaeg2e4 2o4f 3o7f 37 for institutional patients. APA Amicus Brief at 13–14. These views are consistent
with how we think of medical services in a non-custodial setting. Doctors
routinely provide their patients with instructions on how to treat their illnesses
after they leave the doctor’s office, provide their patients with referrals to other
healthcare providers when necessary, and refill their patients’ prescriptions so as
to avoid a lapse in care. Such services are particularly essential for patients who
are hospitalized or otherwise confined, to make possible continuity of care after
their release.
That discharge planning is supposed to occur before release is also
referenced in a variety of guidelines and regulations promulgated by correctional
authorities. For example, ICE’s own Performance Based National Detention Standards require discharge planning prior to release.9
Thus, taking Plaintiffs’ allegations as true and drawing all reasonable
9 That the contents of a discharge plan or package may be provided at or about the time of release does not defeat the claim that the preparation and planning for after-care is an inherent part of proper medical treatment. That a package of after-care instructions, medication, and medical equipment such as dressings or bandages is provided to a paying patient by a staff member on the way out of an emergency room or doctor’s office by a nurse or receptionist, rather than in the treatment room itself by the primary care physician, does not mean that it is not an inherent part of the treatment required of the doctor or hospital; the same is true for a patient who is in custody.
24

CasCeas7e:1167-c-3v-500565,2D7o-NcuSmRenDt 1o2cu7m, 0e5n/t2743/20F19ile, d250751/2841/71,9PaPgaeg2e5 2o5f 3o7f 37 inferences in their favor, we find that Plaintiffs have plausibly alleged that
discharge planning is an essential part of in-custody care. We conclude that
despite the forward-looking nature of discharge planning, a claim for damages
caused by the lack of it can be considered a claim for deprivation of in-custody
care for purposes of the “special relationship” exception. It will be for Plaintiffs to
prove to a fact-finder, on remand, that the care they complain of is the type that should have been provided to them during their detention.10
II. The Appropriate Standard for the Deprivation of In-Custody Care
Once we accept that Plaintiffs’ theory regards the adequacy of medical care
Plaintiffs received while in custody, the legal framework that applies to their claim
becomes clear. It is well established that when the state takes a person into
custody, severely limiting his ability to care for himself, and then is deliberately
indifferent to his medical needs, the Eighth Amendment’s proscription against
10 In recognizing that Plaintiffs’ claim for deprivation of discharge planning may be cognizable under the “special relationship” exception, we do not hold that any detainee who receives medical treatment while detained and subsequently suffers a potentially preventable health problem may assert a Fourteenth Amendment claim by alleging inadequate discharge planning. The facts alleged in this case show a clear causal link and temporal proximity between the lack of discharge planning and the negative effects on Plaintiffs, in addition to a serious medical need for discharge planning and deliberate indifference to that need, as discussed below.
25

CasCeas7e:1167-c-3v-500565,2D7o-NcuSmRenDt 1o2cu7m, 0e5n/t2743/20F19ile, d250751/2841/71,9PaPgaeg2e6 2o6f 3o7f 37 the unnecessary and wanton infliction of pain is violated. Estelle, 429 U.S. at 104. That is true whether the deliberate indifference is manifested by prison doctors in their response to the prisoner’s needs, or by prison guards who intentionally deny or delay access to medical care or intentionally deny or delay access to the treatment once prescribed. Id. at 104–05. The Estelle Court concluded that to state a cause of action under § 1983 for violations of the Eighth Amendment’s Cruel and Unusual Punishment Clause, a prisoner must show that the state was deliberately indifferent to his or her medical needs. Id. at 105. As discussed above, pursuant to the Due Process Clause of the Fourteenth Amendment, the Supreme Court has extended to civil detainees Estelle’s protection for prisoners under the Eighth Amendment. See Youngberg, 457 U.S. at 321–22; City of Revere, 463 U.S. at 244. Thus, those in civil detention, as were Plaintiffs in this case, are also afforded a right to be free from deliberate indifference to their serious medical needs.
“In order to establish a violation of a right to substantive due process, a plaintiff must demonstrate not only government action but also that the government action was so ‘egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.’” Pena v. DePrisco, 432 F.3d 98, 112 (2d Cir. 2005) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)). The
26

CasCeas7e:1167-c-3v-500565,2D7o-NcuSmRenDt 1o2cu7m, 0e5n/t2743/20F19ile, d250751/2841/71,9PaPgaeg2e7 2o7f 3o7f 37
Supreme Court has held that the point of conscience shocking is reached when government actors are deliberately indifferent to the medical needs of pretrial detainees. Lewis, 523 U.S. at 849–50; see Estelle, 429 U.S. at 104–06; City of Revere, 463 U.S. at 244. In this particular context, “deliberately indifferent conduct” is “egregious enough to state a substantive due process claim.” Lewis, 523 U.S. at 849–50. A court need not, therefore, conduct a separate analysis, over and above the deliberate indifference analysis, of whether the state’s conduct “shocks the conscience.”11
In accepting, at this stage, Plaintiffs’ theory that discharge planning is an essential part of in-custody medical care and that Plaintiffs were therefore deprived of adequate medical care while in state custody, Plaintiffs fall well within the “special relationship” exception. Therefore, Plaintiffs’ Fourteenth Amendment claim must meet two requirements: (1) that Plaintiffs had a serious medical need for discharge planning, and (2) that the Defendants acted with
11 We have applied a separate “shocks the conscience” analysis in cases that do not involve the medical needs of those the state has taken into custody. See, e.g., Matican, 524 F.3d at 155 (requiring plaintiff to show conscience-shocking behavior on the part of the state where plaintiff confidential informant was harmed while on the streets, not in a prison or jail); Lombardi v. Whitman, 485 F.3d 73 (2d Cir. 2007) (requiring proof of conscience-shocking behavior when plaintiffs alleged government made false assurances that workplace would be safe, although plaintiffs were not in custody).
27

CasCeas7e:1167-c-3v-500565,2D7o-NcuSmRenDt 1o2cu7m, 0e5n/t2743/20F19ile, d250751/2841/71,9PaPgaeg2e8 2o8f 3o7f 37
deliberate indifference to such needs. See Estelle, 429 U.S. at 105; Darnell v. Pineiro, 849 F.3d 17, 29 (2017).
A. Serious Medical Needs Depending on their severity, psychiatric or psychological conditions can present serious medical needs in light of our contemporary standards. See e.g., Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000). The serious medical needs standard contemplates a condition of urgency such as one that may produce death, degeneration, or extreme pain. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). In determining whether a medical need is sufficiently serious to be cognizable as a basis for a constitutional claim for deprivation of medical care, we consider factors such as whether a reasonable doctor or patient would find the injury important and worthy of treatment, whether the medical condition significantly affects an individual’s daily activities, and whether the illness or injury inflicts chronic and substantial pain. See Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). In most cases, the actual medical consequences that flow from the denial of care are highly relevant in determining whether the denial of treatment subjected the detainee to a significant risk of serious harm. See Smith v. Carpenter, 316 F.3d 178, 187 (2d Cir. 2003).
28

CasCeas7e:1167-c-3v-500565,2D7o-NcuSmRenDt 1o2cu7m, 0e5n/t2743/20F19ile, d250751/2841/71,9PaPgaeg2e9 2o9f 3o7f 37
B. Deliberate Indifference The concept of deliberate indifference has a more complicated history in this Circuit. See Darnell, 849 F.3d at 32–36 (explaining how the concept of deliberate indifference has evolved in the case law since Farmer v. Brennan, 511 U.S. 825 (1994)). In Darnell, we clarified that deliberate indifference, in the context of a Fourteenth Amendment due process claim, can be shown by something akin to recklessness, and does not require proof of a malicious or callous state of mind. 849 F.3d at 33–34. Deliberate indifference, we held, can be established by either a subjective or objective standard: A plaintiff can prove deliberate indifference by showing that the defendant official “recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to [the plaintiff’s] health or safety.” Id. at 35 (emphasis added). This formulation of the deliberate indifference standard was developed in cases involving unconstitutional conditions of confinement. In Darnell, the plaintiffs complained, inter alia, that the facility where they were detained was unsafe and unsanitary. Id. at 23–26. Although Darnell did not specifically address medical treatment, the same principle applies here. See id. at 33 n.9 (noting that the same
29

CasCeas7e:1167-c-3v-500565,2D7o-NcuSmRenDt 1o2cu7m, 0e5n/t2743/20F19ile, d250751/2841/71,9PaPgaeg3e0 3o0f 3o7f 37
standard applies to claims for deliberate indifference to medical needs because “deliberate indifference means the same thing for each type of claim under the Fourteenth Amendment”).
A plaintiff must show “something more than mere negligence” to establish deliberate indifference in the Fourteenth Amendment context. Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996). Thus, “mere medical malpractice is not tantamount to deliberate indifference, but it may rise to the level of deliberate indifference when it involves culpable recklessness, i.e., an act or a failure to act . . . that evinces a conscious disregard of a substantial risk of serious harm.” Cuoco, 222 F.3d at 107 (internal quotation marks and alteration omitted).
Thus, a detainee asserting a Fourteenth Amendment claim for deliberate indifference to his medical needs can allege either that the defendants knew that failing to provide the complained of medical treatment would pose a substantial risk to his health or that the defendants should have known that failing to provide the omitted medical treatment would pose a substantial risk to the detainee’s health.
Whether the state knew or should have known of the substantial risk of harm to the detainee is a question of fact subject to demonstration in the usual
30

CasCeas7e:1167-c-3v-500565,2D7o-NcuSmRenDt 1o2cu7m, 0e5n/t2743/20F19ile, d250751/2841/71,9PaPgaeg3e1 3o1f 3o7f 37
ways, including inference from circumstantial evidence. Farmer, 511 U.S. at 842; see also Hathaway, 37 F.3d at 67–69 (whether doctor was deliberately indifferent to inmate’s serious medical needs was for jury). “A factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Farmer, 511 U.S. at 842.
Thus, to sustain their § 1983 cause of action, Plaintiffs must plausibly allege that they had a sufficiently serious medical need requiring discharge planning and that the deprivation of such planning was inflicted under circumstances constituting deliberate indifference. III. Whether Plaintiffs Had Sufficiently Serious Needs Requiring Discharge
Planning Plaintiffs have plausibly alleged that they had a sufficiently serious need for discharge planning given their serious mental illnesses. Plaintiffs’ mental illnesses cause paranoia, delusions, hallucinations and aggressive shifts in mood when they go untreated. Without continuous care and daily medication to keep them mentally stable, Plaintiffs face serious risk of physical and psychological harm. Plaintiffs’ theory that discharge planning is integral to institutional mental
31

CasCeas7e:1167-c-3v-500565,2D7o-NcuSmRenDt 1o2cu7m, 0e5n/t2743/20F19ile, d250751/2841/71,9PaPgaeg3e2 3o2f 3o7f 37
health care is supported by their citations to professional organizations in the mental health field. Many professional organizations that determine appropriate standards of mental health care regard discharge planning as an essential component of care for the institutionalized mentally ill, including not only sentenced prisoners and civil and criminal detainees with serious mental illnesses, but also those, whether voluntarily hospitalized or involuntarily committed, who are institutionalized for the very purpose of treating their mental illnesses. For example, Plaintiffs point to guidance by the American Psychiatric Association, the primary professional association of psychiatrists in the United States and the largest psychiatric professional organization in the world, which recognizes that “[t]imely and effective discharge planning is essential to continuity of care and an integral part of adequate mental health treatment.” App’x at 29.
Plaintiffs’ allegations regarding the importance of discharge planning are corroborated by what befell them when such planning was not provided to them. See Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996). Because Plaintiffs were not provided with discharge plans, Plaintiffs allege they both faced an abrupt interruption in their care causing them to suffer significant mental health
32

CasCeas7e:1167-c-3v-500565,2D7o-NcuSmRenDt 1o2cu7m, 0e5n/t2743/20F19ile, d250751/2841/71,9PaPgaeg3e3 3o3f 3o7f 37
consequences. Charles suffered complete psychiatric decompensation shortly after being released. His family was forced to call 911 for emergency medical care and he required two months of hospitalization to regain mental stability. Small was somewhat more fortunate. She received treatment before she fully decompensated, but she was still forced to check herself into a hospital emergency room within days of her release and continues to suffer extreme emotional and psychological distress.
We therefore find plausible Plaintiffs’ allegations that they had serious medical needs requiring discharge planning. Of course, those are only allegations: we leave it to the fact-finder, or to summary judgment after discovery, to determine whether the facts, as developed, prove that Plaintiffs had a serious medical need requiring discharge planning and if so, in what form. IV. Whether the Defendants’ Failure to Provide Discharge Planning to
Plaintiffs Constituted Deliberate Indifference Plaintiffs have also sufficiently alleged that Defendants knew or should have known that failing to provide them with discharge planning would cause Plaintiffs substantial harm. According to Plaintiffs, Defendants knew the serious nature of Plaintiffs’ mental health conditions; they diagnosed Plaintiffs,
33

CasCeas7e:1167-c-3v-500565,2D7o-NcuSmRenDt 1o2cu7m, 0e5n/t2743/20F19ile, d250751/2841/71,9PaPgaeg3e4 3o4f 3o7f 37
maintained their medical records, created treatment plans for them, and prescribed anti-psychotic and anti-depressant medication for them. As noted above, Plaintiffs point to guidance by, among others, the American Psychiatric Association and the National Commission on Correctional Health Care, stating that discharge planning is an essential component of adequate institutional mental healthcare for people with Plaintiffs’ illnesses. It is reasonable to infer, at this stage, that the defendant clinic directors, as mental health professionals engaged in providing treatment to prisoners and detainees in an institutional setting, were aware of these standards.
Nor is it necessary to resort solely to inference. The policies and protocols governing Defendants and others providing treatment at the Jail themselves demand such discharge planning. Both ICE and Orange County have written policies recognizing that mental health discharge planning is an essential component of mental health treatment in institutional settings. ICE’s 2011 Performance-Based National Detention Standards (revised in 2016) provide that “[d]etainees, who have received medical care, [been] released from custody or removed shall receive a mental health discharge plan, a summary of medical records, any medically necessary medication and referrals to community-based
34

CasCeas7e:1167-c-3v-500565,2D7o-NcuSmRenDt 1o2cu7m, 0e5n/t2743/20F19ile, d250751/2841/71,9PaPgaeg3e5 3o5f 3o7f 37 providers as medically appropriate.” App’x at 32 (alterations omitted). Orange County policies similarly require that “[n]o client shall be discharged without a discharge plan” which “shall be given to the client upon discharge.” Id. at 130.
Indeed, according to Plaintiffs, Defendants regularly provide discharge planning to individuals who are held at the Orange County Detention Center in criminal detention in accordance with these standards—demonstrating Defendants’ understanding that discharge planning is important for mentally ill inmates. In Charles’s case, the Mental Health Department expressly recognized that Charles would have “projected mental health needs” in his Discharge Summary. Id. at 152.
Thus, Plaintiffs have plausibly alleged that Defendants were fully aware of, and violated, both Orange County and ICE policies by failing to provide them with discharge planning as part of their care. Plaintiffs’ allegations, if proven true, are sufficient to establish that Defendants knew, or should have known, of the substantial risk that Plaintiffs would relapse and suffer serious adverse health consequences if they were not provided with necessary discharge planning, such that a fact-finder could infer “reckless disregard” beyond mere negligence or medical malpractice. Weyant, 101 F.3d at 856; see Harrison v. Barkley, 219 F.3d 132, 139 (2d Cir. 2000).
35

CasCeas7e:1167-c-3v-500565,2D7o-NcuSmRenDt 1o2cu7m, 0e5n/t2743/20F19ile, d250751/2841/71,9PaPgaeg3e6 3o6f 3o7f 37 V. Issues Remaining for Factual Development
That Plaintiffs have adequately stated a claim does not, of course, mean that they have established their entitlement to relief. Plaintiffs will need to provide evidence to back up their allegations. Moreover, Defendants have raised significant factual issues that need to be fleshed out through discovery. These include: whether the discharge planning measures Plaintiffs identify should be provided as part of in-custody care (rather than undertaken upon or after release), the medical effects of a temporary deprivation of psychotropic medication, the causal relationship between the alleged interruption in Plaintiffs’ treatment and the consequences they complain of, and whether the circumstances of Plaintiffs’ release were so unexpected that Defendants could not have anticipated, and properly planned for, their release at the time it occurred. Moreover, Plaintiffs’ own allegations about the existence of written Orange County policies call into question whether Plaintiffs can establish their contention that there is a consistent policy, custom, or practice of denying such planning to immigrant detainees. After discovery, the district court will be in a better position to determine the precise parameters of the treatment that should have been provided; whether the failure to provide any mandated care was attributable to Defendants’ deliberate indifference, mere negligence, or unforeseen and
36

CasCeas7e:1167-c-3v-500565,2D7o-NcuSmRenDt 1o2cu7m, 0e5n/t2743/20F19ile, d250751/2841/71,9PaPgaeg3e7 3o7f 3o7f 37 unforeseeable circumstances; and what, if any, damages were caused by any dereliction on the part of Defendants.12 But, at the pleading stage, we hold that Plaintiffs have adequately stated a Fourteenth Amendment substantive due process claim.
CONCLUSION For the foregoing reasons, we VACATE the district court’s opinion and REMAND for proceedings consistent with this opinion.
12 In addition, the district court may consider, on remand, various issues it did not reach in its September 29, 2017 opinion, and on which we express no opinion, such as: (1) whether the Plaintiffs adequately pled a county policy, practice, or custom for purposes of Monell liability; (2) whether Plaintiffs have adequately stated a claim against Elizondo; and (3) whether Elizondo is entitled to qualified immunity.
37

 
 2016 Summer Speaker Series Schedule
Events begin at 12:30pm in the Historic Judges’ Dining Room (6602), unless otherwise indicated.

Friday, June 3

Young Lawyers Panel Hasan Ali (Senior Counsel, Senate Judiciary Committee) Chiraag Bains (Senior Counsel, DOJ Civil Rights Division) Anne Dechter (Legal Counsel, Center for American Progress) Daniel Harawa (Staff Attorney, Public Defender Service)

Monday, June 6*

Donald B. Verrilli, Jr. Solicitor General of the United States

Wednesday, June 8

A.J. Kramer The Federal Public Defender for the District of Columbia

Friday, June 10

Jamie Gorelick Partner, WilmerHale LLP

Tuesday, June 14 3:15 p.m.

Lisa Monaco Assistant to the President for Homeland Security and Counterterrorism and Deputy National Security Advisor

Wednesday, June 15 5:00 p.m.

Josh Earnest White House Press Secretary

Thursday, June 16

Linda Greenhouse Knight Distinguished Journalist-in-Residence, Yale Law School

Friday, June 17

Seth P. Waxman Partner, WilmerHale LLP

Wednesday, June 22

Vincent H. Cohen, Jr. Partner, Dechert LLP

Friday, June 24

Brian W. Stolarz Partner, LeClairRyan

Tuesday, June 28

Mary Pat Brown Partner, O’Melveny & Myers LLP

Wednesday, June 29

Avi S. Garbow General Counsel, U.S. Environmental Protection Agency

Friday, July 1
Tuesday, July 5* Wednesday, July 6 Thursday, July 7 Friday, July 8
Monday, July 11 Wednesday, July 13
Friday, July 15 Monday, July 18 Wednesday, July 20 Thursday, July 21* Friday, July 22 Monday, July 25 Wednesday, July 27

Scott Busby Deputy Assistant Secretary for Democracy, Human Rights and Labor, U.S. Department of State
Thomas Perez United States Secretary of Labor
Channing D. Phillips U.S. Attorney for the District of Columbia
Ruth Marcus Columnist, The Washington Post
Kenneth R. Feinberg Founder & Managing Partner, Feinberg Rozen, LLP
James Baker General Counsel, Federal Bureau of Investigation
Anne-Marie Leroy Senior Vice President and General Counsel, World Bank Group
Brent E. Newton Deputy Staff Director, U.S. Sentencing Commission
David Kendall Of Counsel, Williams & Connolly LLP
John B. Bellinger, III Partner, Arnold & Porter LLP
Loretta Lynch United States Attorney General
Nina Totenberg Legal Affairs Correspondent, National Public Radio
Jon Leibowitz Partner, Davis Polk & Wardwell LLP
Kevyn D. Orr Partner, Jones Day
2

Friday, July 29 Monday, August 1 Wednesday, August 3 Friday, August 5
Tuesday, August 9 Wednesday, August 10
Thursday, August 11
Friday, August 12
Tuesday, August 16 4:00 p.m.
Wednesday, August 17 Thursday, August 18 Friday, August 19 Tuesday, August 23

Karl A. Racine Attorney General of the District of Columbia
Karen Popp Partner, Sidley Austin LLP
Heather Podesta Founder, Heather Podesta + Partners
Patty Stemler Chief, Criminal Appellate Section U.S. Department of Justice
Kenneth Cohen Staff Director, U.S. Sentencing Commission
David C. Frederick Partner, Kellogg, Huber, Hansen, Todd, Evans & Figel PLLC
Robert S. Taylor Acting General Counsel, U.S. Department of Defense
Ron Klain Executive Vice President & General Counsel, Revolution LLC
Rachel E. Barkow Segal Family Professor of Regulatory Law and Policy Faculty Director, Center on the Administration of Criminal Law, New York University School of Law
Judith E. Leonard General Counsel, Smithsonian Institution
James B. Comey, Jr. Director, Federal Bureau of Investigation
Kannon K. Shanmugam Partner, Williams & Connolly LLP
Marilyn Mosby State’s Attorney, Office of the State’s Attorney for Baltimore City
3

Wednesday, August 24 Friday, August 26 Wednesday, August 31 Thursday, September 1 Friday, September 2 Tuesday, September 6 Wednesday, September 7 Thursday, September 8 Friday, September 9 Monday, September 12

Stevan E. Bunnell General Counsel, U.S. Department of Homeland Security
Adam Liptak Supreme Court Correspondent, The New York Times
Neal Katyal Partner, Hogan Lovells LLP
Randy Barnett Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center
Lisa Brown Vice President & General Counsel, Georgetown University
David D. Cole Hon. George J. Mitchell Professor in Law and Public Policy, Georgetown University Law Center
Hilary Rosen Managing Director, SKDKnickerbocker
Debo P. Adegbile Partner, WilmerHale LLP
Richard Griffin General Counsel, National Labor Relations Board
Cliff Sloan Partner, Skadden, Arps, Slate, Meagher & Flom LLP

* Event will be held in the Ceremonial Courtroom (Courtroom 20) on the sixth floor.

4

 
 CLOSED,CASREF,ECF
U.S. District Court Southern District of New York (White Plains) CIVIL DOCKET FOR CASE #: 7:16−cv−05527−NSR

Charles et al v. Orange County, New York et al Assigned to: Judge Nelson Stephen Roman Referred to: Magistrate Judge Judith C. McCarthy (Settlement) Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 07/12/2016 Date Terminated: 09/17/2019 Jury Demand: Both Nature of Suit: 560 Prisoner Petitions: Civil Detainee: Conditions of Confinement Jurisdiction: Federal Question

Michelet Charles

represented by Laura Francine Redman New York Lawyers for the Public Interest 151 W. 30th Street 11th Floor New York, NY 10001 212−244−4664 Fax: 212−244−4570 Email: lredman@nylpi.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Antony Philip Falconer Gemmell New York Lawyers For The Public Interest 151 West 30th St., New York, NY 10001 (212)−336−9308 Email: agemmell@nyclu.org ATTORNEY TO BE NOTICED

Daniel Joseph Stujenske Simpson Thacher & Bartlett LLP (NY) 425 Lexington Avenue New York, NY 10017 (212) 455−2419 Fax: (212) 455−2502 Email: dstujenske@stblaw.com ATTORNEY TO BE NOTICED

Esinam Mawuena Daisy Agbemenu Simpson Thacher & Bartlett LLP (NY) 425 Lexington Avenue New York, NY 10017 (212)−455−3142 Email: esinam.agbemenu@stblaw.com ATTORNEY TO BE NOTICED

Hayley Jill Gorenberg New York Lawyers for the Public Interest, Inc. 151 West 30th Street 11th Floor New York, Ste 11th Floor New York, NY 10001 212−336−9322 Fax: 212−244−4570 Email: hgorenberg@nylpi.org ATTORNEY TO BE NOTICED

Katherine R. Rosenfeld Emery Celli Brinckerhoff & Abady, LLP 600 Fifth Avenue 10th Floor

Plaintiff Carol Small

New York, NY 10020 212−763−5000 Fax: 212−763−5001 Email: krosenfeld@ecbalaw.com TERMINATED: 01/30/2018
Lauren Elizabeth Repole Simpson Thacher & Bartlett LLP (NY) 425 Lexington Avenue New York, NY 10017 (212)−455−2216 Email: lauren.repole@stblaw.com ATTORNEY TO BE NOTICED
Reena Arora New York Lawyers for the Public Interest 151 W. 30th St. New York, NY 10001 (212) 244−4664 Fax: (212) 244−4570 Email: rarora@urbanjustice.org TERMINATED: 01/04/2017
Richard Walker Simpson Thacher & Bartlett LLP 425 Lexington Ave New York, NY 10017 212−455−3748 Email: richard.walker@stblaw.com ATTORNEY TO BE NOTICED
Thomas C. Rice Simpson Thacher & Bartlett LLP (NY) 425 Lexington Avenue New York, NY 10017 (212) 455−2000 Fax: (212) 455−2502 Email: trice@stblaw.com ATTORNEY TO BE NOTICED
represented by Laura Francine Redman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Antony Philip Falconer Gemmell (See above for address) ATTORNEY TO BE NOTICED
Daniel Joseph Stujenske (See above for address) ATTORNEY TO BE NOTICED
Esinam Mawuena Daisy Agbemenu (See above for address) ATTORNEY TO BE NOTICED
Hayley Jill Gorenberg (See above for address) ATTORNEY TO BE NOTICED
Katherine R. Rosenfeld (See above for address)

V. Defendant County of Orange, New York TERMINATED: 11/19/2019
Defendant County of Orange Sheriff's Department TERMINATED: 11/19/2019
Defendant Orange County Department of Mental Health TERMINATED: 11/19/2019
Defendant

TERMINATED: 01/30/2018
Lauren Elizabeth Repole (See above for address) ATTORNEY TO BE NOTICED
Reena Arora (See above for address) TERMINATED: 01/04/2017
Richard Walker (See above for address) ATTORNEY TO BE NOTICED
Thomas C. Rice (See above for address) ATTORNEY TO BE NOTICED
represented by Carol C. Pierce Orange County Attorney 15 Matthews Street Goshen, NY 10924 (845) 291−3150 Fax: (845) 291−3167 Email: ccpierce@orangecountygov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony Francisco Cardoso Orange County Attorney 15 Matthews Street Goshen, NY 10924 (845)−291−3150 Fax: (845)−291−3167 Email: ACardoso@orangecountygov.com ATTORNEY TO BE NOTICED
represented by Carol C. Pierce (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony Francisco Cardoso (See above for address) ATTORNEY TO BE NOTICED
represented by Carol C. Pierce (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony Francisco Cardoso (See above for address) ATTORNEY TO BE NOTICED
represented by

Nicole Kaye Clinic Director, Orange County Correctional Facility, in her individual capacity TERMINATED: 11/19/2019
Defendant Carmen Elizondo Former Clinic Director, Orange County Correctional Facility, in her individual capacity TERMINATED: 11/19/2019

John Charles O'Brien , Jr. Heidell, Pittoni, Murphy & Bach, LLP (NY) 99 Park Avenue New York, NY 10016 (212)−471−4688 Fax: (212)−883−7960 Email: jobrien@hpmb.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vincent Leonard Gallo , Jr Heidell, Pittoni, Murphy & Bach, LLP (WP) 81 Main Street White Plains, NY 10601 (212) 286−8585 Fax: (212) 490−8966 Email: vgallo@hpmb.com ATTORNEY TO BE NOTICED
represented by Carol C. Pierce (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony Francisco Cardoso (See above for address) ATTORNEY TO BE NOTICED

Date Filed 07/12/2016
07/12/2016 07/12/2016 07/12/2016 07/12/2016 07/12/2016 07/12/2016 07/12/2016 07/12/2016

# Docket Text
1 COMPLAINT against Carmen Elizondo, Nicole Kaye, Orange County Department of Mental Health, Orange County Sheriff's Department, Orange County, New York. (Filing Fee $ 400.00, Receipt Number 0208−12525716)Document filed by Michelet Charles, Carol Small.(Rice, Thomas) (Entered: 07/12/2016)
2 CIVIL COVER SHEET filed. (Rice, Thomas) (Entered: 07/12/2016)
3 REQUEST FOR ISSUANCE OF SUMMONS as to Orange County, New York, re: 1 Complaint,. Document filed by Michelet Charles, Carol Small. (Rice, Thomas) (Entered: 07/12/2016)
4 REQUEST FOR ISSUANCE OF SUMMONS as to Orange County Sheriff's Department, re: 1 Complaint,. Document filed by Michelet Charles, Carol Small. (Rice, Thomas) (Entered: 07/12/2016)
5 REQUEST FOR ISSUANCE OF SUMMONS as to Orange County Department of Mental Health, re: 1 Complaint,. Document filed by Michelet Charles, Carol Small. (Rice, Thomas) (Entered: 07/12/2016)
6 REQUEST FOR ISSUANCE OF SUMMONS as to Nicole Kaye, re: 1 Complaint,. Document filed by Michelet Charles, Carol Small. (Rice, Thomas) (Entered: 07/12/2016)
7 REQUEST FOR ISSUANCE OF SUMMONS as to Carmen Elizondo, re: 1 Complaint,. Document filed by Michelet Charles, Carol Small. (Rice, Thomas) (Entered: 07/12/2016)
8 NOTICE OF APPEARANCE by Reena Arora on behalf of Michelet Charles, Carol Small. (Arora, Reena) (Entered: 07/12/2016)
9 NOTICE OF APPEARANCE by Antony Philip Falconer Gemmell on behalf of Michelet Charles, Carol Small. (Gemmell, Antony) (Entered: 07/12/2016)

07/13/2016
07/13/2016 07/13/2016 07/13/2016 07/13/2016 07/13/2016 07/13/2016
07/13/2016 07/13/2016 07/13/2016 07/13/2016 07/14/2016
07/18/2016 07/22/2016 07/22/2016
07/22/2016
07/22/2016
07/22/2016

***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Thomas C. Rice. The party information for the following party/parties has been modified: Orange County Sheriff's Department, Orange County, New York. The information for the party/parties has been modified for the following reason/reasons: entities must be entered as they appear on complaint. (rch) (Entered: 07/13/2016)
10 ELECTRONIC SUMMONS ISSUED as to County of Orange, New York. (rch) (Entered: 07/13/2016)
11 ELECTRONIC SUMMONS ISSUED as to County of Orange Sheriff's Department. (rch) (Entered: 07/13/2016)
12 ELECTRONIC SUMMONS ISSUED as to Orange County Department of Mental Health. (rch) (Entered: 07/13/2016)
13 ELECTRONIC SUMMONS ISSUED as to Nicole Kaye. (rch) (Entered: 07/13/2016)
14 ELECTRONIC SUMMONS ISSUED as to Carmen Elizondo. (rch) (Entered: 07/13/2016)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The above−entitled action is assigned to Judge Analisa Torres. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php. (rch) (Entered: 07/13/2016)
Magistrate Judge Sarah Netburn is so designated. (rch) (Entered: 07/13/2016)
Case Designated ECF. (rch) (Entered: 07/13/2016)
15 NOTICE OF APPEARANCE by Daniel Joseph Stujenske on behalf of Michelet Charles, Carol Small. (Stujenske, Daniel) (Entered: 07/13/2016)
16 NOTICE OF APPEARANCE by Lauren Elizabeth Repole on behalf of Michelet Charles, Carol Small. (Repole, Lauren) (Entered: 07/13/2016)
17 INITIAL PRETRIAL CONFERENCE ORDER: Initial Conference set for 9/12/2016 at 03:45 PM in Courtroom 15D, 500 Pearl Street, New York, NY 10007 before Judge Analisa Torres. (As further set forth in this Order.) (Signed by Judge Analisa Torres on 7/14/2016) (kko) (Entered: 07/14/2016)
18 NOTICE OF APPEARANCE by Katherine R. Rosenfeld on behalf of Michelet Charles, Carol Small. (Rosenfeld, Katherine) (Entered: 07/18/2016)
19 NOTICE OF APPEARANCE by Laura Francine Redman on behalf of Michelet Charles, Carol Small. (Redman, Laura) (Entered: 07/22/2016)
20 NOTICE OF CHANGE OF ADDRESS by Laura Francine Redman on behalf of All Plaintiffs. New Address: New York Lawyers for the Public Interest, 151 W 30th St., 11th Fl., New York, NY, United States 10001, 2122444664. (Redman, Laura) (Entered: 07/22/2016)
21 SUMMONS RETURNED EXECUTED Summons and Complaint, served. County of Orange Sheriff's Department served on 7/19/2016, answer due 8/9/2016. Service was accepted by S.K. Hamill, Captain. Document filed by Michelet Charles; Carol Small. (Rice, Thomas) (Entered: 07/22/2016)
22 SUMMONS RETURNED EXECUTED Summons and Complaint, served. County of Orange, New York served on 7/19/2016, answer due 8/9/2016. Service was accepted by Renee M. Hoover. Document filed by Michelet Charles; Carol Small. (Rice, Thomas) (Entered: 07/22/2016)
23 SUMMONS RETURNED EXECUTED Summons and Complaint, served. Nicole Kaye served on 7/19/2016, answer due 8/9/2016. Service was accepted by Nicole Kaye. Document filed by Michelet Charles; Carol Small. (Rice, Thomas) (Entered: 07/22/2016)

07/22/2016 08/05/2016 08/05/2016 08/05/2016 08/09/2016 08/09/2016 08/09/2016 08/18/2016 08/18/2016
08/22/2016 08/22/2016
08/23/2016
08/23/2016 08/29/2016
08/31/2016 08/31/2016

24 SUMMONS RETURNED EXECUTED Summons and Complaint, served. Orange County Department of Mental Health served on 7/19/2016, answer due 8/9/2016. Service was accepted by Darcie Miller, Acting Commissioner. Document filed by Michelet Charles; Carol Small. (Rice, Thomas) (Entered: 07/22/2016)
25 LETTER MOTION for Extension of Time to Respond to Complaint addressed to Judge Analisa Torres from J.C. O'Brien dated August 5, 2016. Document filed by Nicole Kaye.(O'Brien, John) (Entered: 08/05/2016)
26 NOTICE OF APPEARANCE by Vincent Leonard Gallo, Jr on behalf of Nicole Kaye. (Gallo, Vincent) (Entered: 08/05/2016)
27 ORDER denying 25 Letter Motion for Extension of Time. Defendant's request is DENIED. SO ORDERED. (Signed by Judge Analisa Torres on 8/5/2016) (kko) (Entered: 08/05/2016)
28 NOTICE OF APPEARANCE by Carol C. Pierce on behalf of County of Orange Sheriff's Department, County of Orange, New York, Carmen Elizondo, Orange County Department of Mental Health. (Pierce, Carol) (Entered: 08/09/2016)
29 ANSWER to 1 Complaint,. Document filed by County of Orange Sheriff's Department, County of Orange, New York, Carmen Elizondo, Orange County Department of Mental Health.(Pierce, Carol) (Entered: 08/09/2016)
30 ANSWER to 1 Complaint, with JURY DEMAND. Document filed by Nicole Kaye.(Gallo, Vincent) (Entered: 08/09/2016)
31 NOTICE OF APPEARANCE by Anthony Francisco Cardoso on behalf of County of Orange Sheriff's Department, County of Orange, New York, Carmen Elizondo, Orange County Department of Mental Health. (Cardoso, Anthony) (Entered: 08/18/2016)
32 ORDER OF REFERENCE TO A MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for General Pretrial (includes scheduling, discovery, non−dispositive pretrial motions, and settlement). Referred to Magistrate Judge Sarah Netburn. (Signed by Judge Lorna G. Schofield on 8/18/2016) (cf) (Entered: 08/18/2016)
NOTICE OF REDESIGNATION TO ANOTHER MAGISTRATE JUDGE. The above entitled action has been redesignated to Magistrate Judge Barbara C. Moses. Please note that this is a reassignment of the designation only. (wb) (Entered: 08/22/2016)
NOTICE OF REASSIGNMENT OF A REFERRAL TO ANOTHER MAGISTRATE JUDGE. The referral in the above entitled action has been reassigned to Magistrate Judge Barbara C. Moses, for General Pretrial (includes scheduling, discovery, non−dispositive pretrial motions, and settlement). Magistrate Judge Sarah Netburn no longer referred to the case. (wb) (Entered: 08/22/2016)
33 ORDER SCHEDULING INITIAL CASE MANAGEMENT CONFERENCE: Initial Conference set for 9/22/2016 at 10:00 AM in Courtroom 9A, U.S. Courthouse, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Barbara C. Moses, and as further set forth in this Order. (Signed by Magistrate Judge Barbara C. Moses on 8/23/2016) (rjm) (Entered: 08/23/2016)
34 ORDER: The initial pretrial conference scheduled for September 12, 2016, is ADJOURNED sine die. SO ORDERED. (Signed by Judge Analisa Torres on 8/23/2016) (kl) (Entered: 08/23/2016)
35 LETTER MOTION for Conference for anticipated motion to dismiss addressed to Judge Analisa Torres from Anthony F. Cardoso dated August 29, 2016. Document filed by County of Orange Sheriff's Department, County of Orange, New York, Carmen Elizondo, Orange County Department of Mental Health.(Cardoso, Anthony) (Entered: 08/29/2016)
NOTICE OF CASE REASSIGNMENT to Judge Nelson Stephen Roman. Judge Analisa Torres is no longer assigned to the case. (wb) (Entered: 08/31/2016)
Magistrate Judge Lisa M. Smith is so redesignated. (wb) (Entered: 08/31/2016)

09/06/2016 10/04/2016 10/12/2016 10/14/2016
10/18/2016 10/19/2016
11/04/2016 11/10/2016 12/06/2016
12/22/2016 01/04/2017

36 LETTER addressed to Judge Nelson Stephen Roman from Daniel J. Stujenske dated September 6, 2016 re: Defendants' August 29, 2016 letter. Document filed by Michelet Charles, Carol Small. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Stujenske, Daniel) (Entered: 09/06/2016)
37 ORDER granting 35 Letter Motion for Conference. Pre−motion Conference scheduled for Oct. 19, 2016 at 11:15am. Clerk of the Court requested to terminate the motion (doc. 35). Pre−Motion Conference set for 10/19/2016 at 11:15 AM before Judge Nelson Stephen Roman. (Signed by Judge Nelson Stephen Roman on 10/4/2016) (mml) (Entered: 10/05/2016)
38 LETTER MOTION for Conference addressed to Judge Nelson Stephen Roman from J. C. O'Brien dated October 12, 2016. Document filed by Nicole Kaye.(O'Brien, John) (Entered: 10/12/2016)
39 MEMO ENDORSEMENT granting 38 LETTER MOTION for Conference addressed to Judge Nelson Stephen Roman from J. C. O'Brien dated October 12, 2016. ENDORSEMENT: Pre−motion Conference previously scheduled for Oct. 19, 2016 at 11:15 am. Opposing party to state position in writing (not to exceed 3 pages) by Oct. 18, 2016. Clerk of the Court requested to terminate the motion (doc. 38). SO ORDERED. (Pre−Motion Conference set for 10/19/2016 at 11:15 AM before Judge Nelson Stephen Roman) (Signed by Judge Nelson Stephen Roman on 10/14/2016) (lnl) (Entered: 10/17/2016)
40 LETTER addressed to Judge Nelson Stephen Roman from Daniel J. Stujenske dated October 18, 2016 re: Defendant Nicole Kaye's October 12, 2016 letter requesting leave to file a motion under FRCP 12(c). Document filed by Michelet Charles, Carol Small.(Stujenske, Daniel) (Entered: 10/18/2016)
Minute Entry for proceedings held before Judge Nelson Stephen Roman: Pre−Motion Conference held on 10/19/2016. Plaintiffs and Defendants counsel present. Court Reporter is Sue Ghorayeb. Both sets of Defendants granted leave to file separate motions to dismiss with following briefing schedule: moving papers to be served November 21, 2016; opposition to be served January 6, 2017; and reply to be served January 30, 2017. The parties are directed to file all motion documents on the reply date, January 30, 2017, and to provide 2 copies of all documents to chambers as the documents are served. ( Motions due by 1/30/2017.). (Court Reporter Sue Ghorayeb) (gs) (Entered: 10/19/2016)
41 FIRST LETTER addressed to Judge Nelson Stephen Roman from Laura F. Redman dated 11/4/2016 re: Response to Defendants' November 1, 2016 Letter Seeking a Stay of Discovery. Document filed by Michelet Charles, Carol Small.(Redman, Laura) (Entered: 11/04/2016)
42 NOTICE OF CHANGE OF ADDRESS by Reena Arora on behalf of Michelet Charles, Carol Small. New Address: New York Lawyers for the Public Interest, 151 W. 30th St, 11th Floor, New York, NY, United States 10001, 2122444664. (Arora, Reena) (Entered: 11/10/2016)
43 ENDORSED LETTER addressed to Judge Nelson Stephen Roman from Anthony F. Cardoso, dated 11/1/2016, re: Counsel for defendants County of Orange, County of Orange Sheriff's Department, Orange County Department of Mental Health, and Carmen Elizondo writes to request that the Court stay discovery in this matter until resolution of defendants' pending motions to dismiss. ENDORSEMENT: Discovery is stayed to the extent of taking depositions until such time as the motion to dismiss is resolved. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 12/6/2016) (lnl) (Entered: 12/07/2016)
44 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION for Reena Arora to Withdraw as Attorney . Document filed by Michelet Charles, Carol Small. (Attachments: # 1 Affidavit ISO Motion)(Arora, Reena) Modified on 1/18/2017 (db). (Entered: 12/22/2016)
45 MEMO ENDORSED ORDER granting 44 Motion to Withdraw as Attorney. ENDORSEMENT: Motion to Withdraw granted. Clerk of the Court requested to terminate the motion (doc. 44). Attorney Reena Arora terminated. (Signed by Judge Nelson Stephen Roman on 1/4/2017) (mml) (Entered: 01/05/2017)

01/30/2017 01/30/2017
01/30/2017
01/30/2017
01/30/2017 01/30/2017 01/30/2017 01/30/2017
01/30/2017
01/30/2017
01/30/2017
01/30/2017 01/30/2017 01/30/2017 01/30/2017 01/30/2017

46 MOTION to Dismiss . Document filed by County of Orange Sheriff's Department, County of Orange, New York, Carmen Elizondo, Orange County Department of Mental Health.(Cardoso, Anthony) (Entered: 01/30/2017)
47 DECLARATION in Support re: 46 MOTION to Dismiss .. Document filed by County of Orange Sheriff's Department, County of Orange, New York, Carmen Elizondo, Orange County Department of Mental Health. (Cardoso, Anthony) (Entered: 01/30/2017)
48 MEMORANDUM OF LAW in Support re: 46 MOTION to Dismiss . . Document filed by County of Orange Sheriff's Department, County of Orange, New York, Carmen Elizondo, Orange County Department of Mental Health. (Cardoso, Anthony) (Entered: 01/30/2017)
49 CERTIFICATE OF SERVICE. Service was made by MAIL. Document filed by County of Orange Sheriff's Department, County of Orange, New York, Carmen Elizondo, Orange County Department of Mental Health. (Cardoso, Anthony) (Entered: 01/30/2017)
50 MOTION to Dismiss . Document filed by Nicole Kaye.(O'Brien, John) (Entered: 01/30/2017)
51 MEMORANDUM OF LAW in Support re: 50 MOTION to Dismiss . . Document filed by Nicole Kaye. (O'Brien, John) (Entered: 01/30/2017)
52 DECLARATION of J. C. O'Brien in Support re: 50 MOTION to Dismiss .. Document filed by Nicole Kaye. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Affidavit Certicate of Service)(O'Brien, John) (Entered: 01/30/2017)
53 CERTIFICATE OF SERVICE of Notice of Motion, Attorney Declaration & Memorandum of Law served on all Parties on November 21, 2016. Service was made by Overnight Mail. Document filed by Nicole Kaye. (O'Brien, John) (Entered: 01/30/2017)
54 REPLY MEMORANDUM OF LAW in Support re: 46 MOTION to Dismiss . . Document filed by County of Orange Sheriff's Department, County of Orange, New York, Carmen Elizondo, Orange County Department of Mental Health. (Cardoso, Anthony) (Entered: 01/30/2017)
55 CERTIFICATE OF SERVICE. Service was made by Mail. Document filed by County of Orange Sheriff's Department, County of Orange, New York, Carmen Elizondo, Orange County Department of Mental Health. (Cardoso, Anthony) (Entered: 01/30/2017)
56 REPLY AFFIRMATION of Anthony F. Cardoso in Support re: 46 MOTION to Dismiss .. Document filed by County of Orange Sheriff's Department, County of Orange, New York, Carmen Elizondo, Orange County Department of Mental Health. (Cardoso, Anthony) (Entered: 01/30/2017)
57 MEMORANDUM OF LAW in Opposition re: 46 MOTION to Dismiss . . Document filed by Michelet Charles, Carol Small. (Stujenske, Daniel) (Entered: 01/30/2017)
58 DECLARATION of Daniel J. Stujenske, Esq. in Opposition re: 46 MOTION to Dismiss .. Document filed by Michelet Charles, Carol Small. (Attachments: # 1 Exhibit A)(Stujenske, Daniel) (Entered: 01/30/2017)
59 MEMORANDUM OF LAW in Opposition re: 50 MOTION to Dismiss . . Document filed by Michelet Charles, Carol Small. (Stujenske, Daniel) (Entered: 01/30/2017)
60 DECLARATION of Daniel J. Stujenske, Esq. in Opposition re: 50 MOTION to Dismiss .. Document filed by Michelet Charles, Carol Small. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Stujenske, Daniel) (Entered: 01/30/2017)
61 CERTIFICATE OF SERVICE of 57 58 59 60 served on Carmen Elizondo, Nicole Kaye, Orange County Department of Mental Health, County of Orange Sheriff's Department, County of Orange (New York) on January 6, 2017. Service was made by Mail. Document filed by Michelet Charles, Carol Small. (Stujenske, Daniel) (Entered: 01/30/2017)

01/30/2017 01/30/2017 01/31/2017 03/30/2017
04/03/2017 04/07/2017 04/19/2017 09/29/2017
09/29/2017 09/29/2017 10/30/2017 10/30/2017 10/30/2017 01/25/2018

62 LETTER MOTION for Oral Argument on Defendants' Motion to Dismiss addressed to Judge Nelson Stephen Roman from Daniel J. Stujenske dated January 30, 2017. Document filed by Michelet Charles, Carol Small.(Stujenske, Daniel) (Entered: 01/30/2017)
63 REPLY MEMORANDUM OF LAW in Support re: 50 MOTION to Dismiss . by Defendant Nicole Kaye. Document filed by Nicole Kaye. (O'Brien, John) (Entered: 01/30/2017)
64 MEMO ENDORSED ORDER denying 62 Letter Motion for Oral Argument. ENDORSEMENT: Oral argument is discretionary and the Court will schedule same if it believes oral argument is warranted. The Clerk of the Court is requested to terminate the motion (doc. 62). (Signed by Judge Nelson Stephen Roman on 1/31/2017) (mml) (Entered: 01/31/2017)
65 ENDORSED LETTER addressed to Judge Nelson Stephen Roman from Anthony F. Cardoso dated 3/29/2017 re: We write to request a conference to resolve a dispute between the parties on disclosure of medical record authorizations and the terms of a proposed confidentiality agreement. ENDORSEMENT: In person discovery dispute conference scheduled for April 7, 2017 at 2:00 pm. Plaintiff's written response is due April 4, 2017., ( Responses due by 4/4/2017, Discovery Dispute Conference set for 4/7/2017 at 02:00 PM before Judge Nelson Stephen Roman.) (Signed by Judge Nelson Stephen Roman on 3/30/2017) (rj) Modified on 4/4/2017 (rj). (Entered: 03/30/2017)
66 NOTICE OF APPEARANCE by Esinam Mawuena Daisy Agbemenu on behalf of Michelet Charles, Carol Small. (Agbemenu, Esinam) (Entered: 04/03/2017)
Minute Entry for proceedings held before Judge Nelson Stephen Roman: Discovery Hearing held on 4/7/2017. Plaintiffs and Defendants counsel present. Court Reporter is Mary Staten. Dispute as to language in confidentiality agreement resolved. (Court Reporter Mary Staten) (gs) (Entered: 04/07/2017)
67 STIPULATION AND PROTECTIVE ORDER CONCERNING CONFIDENTIAL INFORMATION...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Judge Nelson Stephen Roman on 4/18/2017) (mml) (Entered: 04/19/2017)
68 OPINION AND ORDER re: 50 MOTION to Dismiss . filed by Nicole Kaye, 46 MOTION to Dismiss . filed by Orange County Department of Mental Health, County of Orange Sheriff's Department, Carmen Elizondo, County of Orange, New York. For the foregoing reasons, the motion to dismiss is granted, and Plaintiffs' due process claims are dismissed. The Clerk of Court is directed to terminate all pending motions and to close this case. (Signed by Judge Nelson Stephen Roman on 9/29/2017) (rj) (Entered: 10/02/2017)
Transmission to Judgments and Orders Clerk. Transmitted re: 68 Memorandum & Opinion, to the Judgments and Orders Clerk. (rj) (Entered: 10/02/2017)
69 CLERK'S JUDGMENT: It is, ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Opinion and Order dated September 29, 2017, the motion to dismiss is granted, and Plaintiffs' due process claims are dismissed; accordingly, the case is closed. (Signed by Clerk of Court Ruby Krajick on 9/29/2017) (Attachments: # 1 Right to Appeal, # 2 Right to Appeal)(km) (Entered: 10/02/2017)
70 NOTICE OF APPEAL from 68 Memorandum & Opinion,, 69 Clerk's Judgment,. Document filed by Michelet Charles, Carol Small. Filing fee $ 505.00, receipt number 0208−14302402. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Stujenske, Daniel) (Entered: 10/30/2017)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 70 Notice of Appeal. (tp) (Entered: 10/30/2017)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 70 Notice of Appeal, filed by Carol Small, Michelet Charles were transmitted to the U.S. Court of Appeals. (tp) (Entered: 10/30/2017)
71 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION for Katherine Rosenfeld to Withdraw as Attorney . Document filed by Michelet Charles, Carol

01/30/2018 05/24/2019 05/24/2019 05/29/2019
05/29/2019 06/14/2019
06/14/2019 06/19/2019
06/20/2019 06/20/2019 06/24/2019
06/28/2019

Small.(Rosenfeld, Katherine) Modified on 3/27/2018 (ldi). (Entered: 01/25/2018)
72 MEMO ENDORSEMENT granting 71 Motion to Withdraw as Attorney. ENDORSEMENT: The application is granted. Clerk of the Court requested to terminate the motion (doc. 71). (Attorney Katherine R. Rosenfeld terminated.) (Signed by Judge Nelson Stephen Roman on 1/30/2018) (ras) (Entered: 01/30/2018)
73 TRUE COPY ORDER of USCA as to 70 Notice of Appeal, filed by Carol Small, Michelet Charles USCA Case Number 17−3506. USCA Case Number 17−3506. For the foregoing reasons, we VACATE the district courts opinion and REMAND for proceedings consistent with this opinion. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 5/24/2019. (tp) (Entered: 05/24/2019)
Transmission of USCA Mandate/Order to the District Judge re: 73 USCA Order. (tp) (Entered: 05/24/2019)
74 ENDORSED LETTER addressed to Judge Nelson Stephen Roman from Anthony F. Cardoso dated 5/28/2019 re: Request for pre−motion conference in anticipation of moving to dismiss the complaint pursuant to Rule 12(c). ENDORSEMENT: Plaintiffs directed to state position in writing (not to exceed 3 pages) by June 4, 2019. The parties are directed to confer, complete and bring to the conference a Scheduling Order (blank form attached). Pre−Motion Conference scheduled for June 20, 2019 at 10:00 am. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 5/29/2019) (rj) (Entered: 05/30/2019)
Set/Reset Hearings: Pre−Motion Conference set for 6/20/2019 at 10:00 AM before Judge Nelson Stephen Roman. (rj) (Entered: 05/30/2019)
75 MANDATE of USCA (Certified Copy) as to 70 Notice of Appeal, filed by Carol Small, Michelet Charles. USCA Case Number 17−3506.IT IS HEREBY ORDERED, ADJUDGED and DECREED that the district court's opinion is VACATED and the case is REMANDED for further proceedings consistent with this Court's Opinion. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 06/14/2019. (Attachments: # 1 Opinion)(nd) (Entered: 06/14/2019)
Transmission of USCA Mandate to the District Judge re: 75 USCA Mandate,. (nd) (Entered: 06/14/2019)
76 ENDORSED LETTER addressed to Judge Nelson Stephen Roman from Anthony F. Cardoso dated 6/14/2019 re: Request the Court to refer this matter to Magistrate Judge McCarthy for settlement conference and adjourn the June 20, 2019 pre−motion conference. ENDORSEMENT: This matter is referred to Judge McCarthy for Settlement conference on July 17, 2019. The June 20, 2019 Pre−motion Conference is adjourned until July 24, 2019 at 10:00 a.m., at which time Parties are directed to appear before this Court. SO ORDERED., (Pre−Motion Conference set for 7/24/2019 at 10:00 AM before Judge Nelson Stephen Roman.) (Signed by Judge Nelson Stephen Roman on 6/19/2019) (kv) Modified on 9/16/2019 (kv). (Entered: 06/19/2019)
Magistrate Judge Judith C. McCarthy is so redesignated. (jc) (Entered: 06/20/2019)
77 ORDER OF REFERENCE TO A MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Settlement. Referred to Magistrate Judge Judith C. McCarthy. (Signed by Judge Nelson Stephen Roman on 6/20/2019) (kv) (Entered: 06/20/2019)
78 SCHEDULING ORDER: The Court has scheduled a Settlement Conference for July 17, 2019 at 2:00 p.m. before Magistrate Judge Judith C. McCarthy in Courtroom 421. Parties are required to appear. Counsel are required to submit a confidential, ex parte letter, so identified, to the Court, not to exceed 5 pages in length, no later than five business days prior to the conference, outlining any information counsel believes would assist the Court in preparation for the conference. Any party seeking to reschedule shall telephone Chambers with all other parties on the line. Settlement Conference set for 7/17/2019 at 02:00 PM in Courtroom 421, 300 Quarropas Street, White Plains, NY 10601 before Magistrate Judge Judith C. McCarthy. (Signed by Magistrate Judge Judith C. McCarthy on 6/24/2019) (jca) (Entered: 06/24/2019)
79 ENDORSED LETTER addressed to Judge Nelson Stephen Roman from Anthony F. Cardoso dated 6/28/2019 re: Joint request that the Court adjourn the July 24, 2019

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pre−motion conference until after the now rescheduled July 29, 2019 settlement conference. ENDORSEMENT: The Pre−motion Conference is adjourned from July 24, 2019 until September 18, 2019 at 10:00 am. SO ORDERED., Pre−Motion Conference set for 9/18/2019 at 10:00 AM before Judge Nelson Stephen Roman. (Signed by Judge Nelson Stephen Roman on 6/28/2019) (rj) (Entered: 07/01/2019)
Minute Entry for proceedings held before Magistrate Judge Judith C. McCarthy: Settlement Conference held on July 29, 2019. Case did not settle. The parties are directed to contact the Court if they would like a further settlement conference. (Court Reporter Courtflow) (jah) (Entered: 07/30/2019)
80 Costs Taxed as to 75 USCA Mandate, USCA Case Number 17−3506, in the amount of $825.00, on 8.12.2019 in favor of Appellants Michelet Charles, Carol Small against Appellees Orange County, State of New York, Orange County Sheriff's Department, Orange County Department of Mental Health, Carmen Elizondo, Former Clinic Director, Orange County Correctional Facility, in her individual capacity. (tp) (Entered: 08/12/2019)
81 NOTICE OF APPEARANCE by Richard Walker on behalf of Michelet Charles, Carol Small. (Walker, Richard) (Entered: 08/12/2019)
82 LETTER MOTION for Extension of Time to submit the parties' position regarding a further settlement conference addressed to Magistrate Judge Judith C. McCarthy from Daniel J. Stujenske dated August 12, 2019. Document filed by Michelet Charles, Carol Small.(Stujenske, Daniel) (Entered: 08/12/2019)
83 ORDER granting 82 Letter Motion for Extension of Time. The parties are directed to contact the Court by August 14, 2019 if they would like a further settlement conference. (HEREBY ORDERED by Magistrate Judge Judith C. McCarthy)(Text Only Order) (McCarthy, Judith) (Entered: 08/13/2019)
84 LETTER addressed to Magistrate Judge Judith C. McCarthy from Daniel J. Stujenske dated August 14, 2019 Document filed by Michelet Charles, Carol Small.(Stujenske, Daniel) (Entered: 08/14/2019)
85 ORDER: ORDERED, that the Pre−Motion Conference scheduled for September 18, 2019 is hereby adjourned sine die, it is further ORDERED, that the above−entitled action be and hereby is discontinued, without costs to either party, subject to reopening should the settlement not be consummated within sixty (60) days of the date hereof. The parties are advised that if they wish the Court to retain jurisdiction in this matter for purposes of enforcing any settlement agreement, they must submit the settlement agreement to the Court within the next 60 days with a request that the agreement be "so ordered" by the Court. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 9/17/2019) (ama) (Entered: 09/17/2019)
86 NOTICE OF APPEARANCE by Hayley Jill Gorenberg on behalf of Michelet Charles, Carol Small. (Gorenberg, Hayley) (Entered: 10/10/2019)
87 PROPOSED STIPULATION AND ORDER. Document filed by Michelet Charles, Carol Small. (Agbemenu, Esinam) (Entered: 11/19/2019)
88 STIPULATION AND ORDER OF DISMISSAL WITH PREJUDICE: IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, the attorneys of record for all the remaining parties to the above−entitled action, that whereas no party hereto is an infant or incompetent person for whom a committee has been appointed and no person not a party has an interest in the subject matter of the action, the above−entitled action and claim be, and the same hereby is, discontinued and dismissed with prejudice pursuant to the terms of the undersigned parties' Settlement Agreement entered into on November 18, 2019. This stipulation may be executed in counterparts and filed without further notice, with the Court. IT IS SO ORDERED. (Signed by Judge Nelson Stephen Roman on 11/19/2019) (rj) (Entered: 11/20/2019)